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Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming

The plaintiff became a quadriplegic after her fall skiing which almost guaranty’s litigation because of the amount of money for past and future medical bills as well as lost wages.

Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608

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

Plaintiff: Lindy Grace Cunningham; Michael Chad Cunningham

Defendant: Jackson Hole Mountain Resort Corporation

Plaintiff Claims: negligence, premises liability, negligent training and supervision, and loss of consortium

Defendant Defenses: Release

Holding: for the Defendant Ski Area

Year: 2016

This is a simple case, and fairly simple analysis by the Tenth Circuit Court of Appeals. The plaintiff’s rented skis from a ski shop owned by the defendant ski area. The rental agreement included a release. The release specifically stated it covered negligence of the shop and the ski area.

During a January 2013 vacation to Teton Village, Wyoming, Lindy Cunningham rented ski equipment from a JHMR shop located at the base of the resort’s ski area. During the rental process, Mrs. Cunningham signed a rental agreement,….

The plaintiff was injured when she fell skiing and slid into a trail sign. The collision rendered her a quadriplegic.

On January 14, while skiing at JHMR, Mr. Cunningham followed behind Mrs. Cunningham, filming her on his helmet-mounted GoPro camera. Footage from the camera shows Mrs. Cunningham fall toward the right side of the trail, slide, and then collide with a trail sign. The accident severely injured Mrs. Cunningham’s spine, rendering her a quadriplegic.

The plaintiff’s sued for negligence, premise’s liability, negligent training and supervision and loss of consortium. The district court granted a motion for summary judgment filed by the defendant based on the release. The plaintiff appealed the decision to the Tenth Circuit Court of Appeals.

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

The court first looked at the law to be applied to a diversity case. A diversity case is a case in federal court based on the parties living or residing in two different states. Federal court has limited jurisdiction. A federal court can only hear cases involving federal law or federal agencies or a case between two parties from different states.

When a diversity case arises, the law that is applied to the case is the law of the state where the lawsuit was filed. If the state law where the lawsuit was filed does not have case law on the facts as argued, then other state law and federal decisions are used to support the decision.

Because this is a diversity case, we apply the substantive law of Wyoming, the forum state.” Specifically, we “must ascertain and apply state law to reach the result the Wyoming Supreme Court would reach if faced with the same question.” If “no state cases exist on a point, we turn to other state court decisions, federal decisions, and the general weight and trend of authority.”

The court then reviewed the four –part test set out by the Wyoming Supreme Court to determine the validity of a release.

In reaching its determination a court considers . . . (1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Only exculpatory agreements meeting these requirements are enforceable.

If the release passes all four parts of the test, the release is deemed valid. In looking at the first two factors the court stated that the Wyoming Supreme court had essentially combined them.

In application, the Wyoming Supreme Court has essentially combined the first two factors, stating that “[a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.”

The plaintiff argued that a public duty did exist because the ski area was located on federal land and was subject to federal regulations. The plaintiff also argued the release was contrary to public policy as set forth in the Wyoming Recreation Safety Act and that it unlawfully barred claims for essential services.

On appeal, the Cunninghams make arguments related to the first three factors by asserting (1) JHMR owes a duty to the public because it operates on United States Forest Service land pursuant to a special use permit and is subject to federal regulation, (2) the release is contrary to public policy as expressed in the Wyoming Recreation Safety Act, and (3) the release unlawfully bars negligence actions arising from essential services such as the provision of emergency medical services at the JHMR clinic.

The court first took note of the fact that none of the arguments raised by the plaintiff had been raised at the trial court level. Consequently, there was no requirement that the appellate court review those issues. Consequently, the court did not look at these issues.

The fourth issue raised by the plaintiffs the court did review. “…whether the release agreement evidences the parties’ intent to abrogate negligence liability in clear and unambiguous language….” Reviewing this argument required close scrutiny of the release and traditional contract principles of looking at the document as a hole. That review also requires looking at the nature of the service provided and the purpose of the release.

This language broadly bars all claims related to Mrs. Cunningham’s use of facilities and services at JHMR. Although the Cunninghams argue their negligence claims should not be barred by this pro-vision, the Wyoming Supreme Court has determined on multiple occasions that exculpatory clauses “clearly and unambiguously” express the parties’ intent to release negligence liability even where the clauses do not mention negligence specifically. We conclude the Wyoming Supreme Court would reach the same result here, where the exculpatory clause expressly emphasizes that it “INCLUDE[S] NEGLIGENCE.”

The court found the language of the release met the requirements of Wyoming law. However, the court did not stop there. The plaintiff also argued the parties mutually misunderstood the release, both believing it only covered the liability issues of renting equipment.

This was broken down into four sub-issues. The release contained hidden exculpatory language, there was an internal conflict in the release; the release was overly broad and there was a mutual mistake. Again, the court shot down these arguments.

The Cunninghams first assert the exculpatory clause was too inconspicuous to be “clear and unambiguous.” We have found no case imposing a “conspicuousness” requirement to exculpatory clauses under Wyoming law. But even assuming enforcement of a sufficiently inconspicuous clause could offend public policy, the release here is not inconspicuous.

While the print is necessarily small, it is readable even in the further-shrunken form presented in the record on appeal. And as the district court observed, “there is nothing to suggest that [Mrs.] Cunningham requested larger print or indicated that she could not read the release.” For these reasons, even if conspicuousness is a requirement under Wyoming law, the release here was conspicuous.

The internal conflict argument was the release was both consistent and inconsistent with the Wyoming Recreational Safety Act. Again, the court found no inconsistency.

The WRSA does not exempt or identify specific inherent risks; it generally defines “inherent risks” as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”

The final argument was the issue that the release was overly broad.

First, the Cunninghams argue the release is ambiguous because “it relates to all ‘activities’ and all ‘facilities’ and all ‘premises’ on ‘each and every day’ against a wide array of entities and individuals.” Because the exculpatory clause includes broad language covering all facilities and activities at the resort at any time of year, the Cunninghams conclude “[t]here is no way possible for a person to understand what this clause actually encompasses.”

The court found the release was no different than other releases previously reviewed by the Wyoming Supreme Court.

The release explicitly limits JHMR’s liability for “any and all claims, demands, causes of action, liabilities, actions . . . arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR.” Although this language is broad, there is nothing ambiguous about it. Indeed, the Wyoming Supreme Court rejected an analogous argument when it held that a release from liability for “legal claims or legal liability of any kind whether foreseen or unforeseen” meant precisely what it said and thus clearly barred a plaintiff’s negligence claims.

The mutual mistake argument means neither party thought the release was applied to anything other than renting of ski equipment. This argument was not raised at the trial court level so it was moot at the appellate court.

Finally, the court looked at the argument that the actions of the defendant were willful and wanton. Although not stated, I am assuming this argument was meant to void the release for covering more than simple negligence.

The court first defined willful and wanton under Wyoming Law.

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Under Wyoming law willful and want conduct is more aggravated than gross negligence and to prove willful and wanton conduct, there must be a demonstration of a state of mind approaching an intent to do harm.

The court found nothing in the pleadings or any evidence which showed evidence of actions that rose to this level.

Here, there is no evidence from which a reasonable jury could conclude JHMR acted willfully or wantonly when it placed the trail sign with which Mrs. Cunningham collided. It is undisputed that the sign has been in the same spot in substantially the same form for over thirty years. Yet there was no evidence presented that anyone other than Mrs. Cunningham has collided with the sign in that time. Although the Cunninghams’ experts criticized JHMR’s choices in placing and constructing the sign, as the district court concluded, “[a]t best, the alleged failings related to the placement and construction of the sign are negligent, not willful and wanton behavior.”

The Tenth Circuit Court of Appeals upheld the motion for summary judgment and dismissal of the case by the district court.

So Now What?

This case was won by the ski area because the risk manager at the ski area looked outside his or her office. When a ski area, or other resort operations, owns rental, retail and lodging, there are several different places a release can be signed. Making sure that the release covers all the activities offered by the resort can make a big difference as in this case.

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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Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608

Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608

Lindy Grace Cunningham; Michael Chad Cunningham, Plaintiffs – Appellants, v. Jackson Hole Mountain Resort Corporation, a Wyoming corporation, Defendant – Appellee.

No. 16-8016

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

2016 U.S. App. LEXIS 22608

December 20, 2016, Filed

PRIOR HISTORY:  [*1] (D.C. No. 2:15-CV-00007-NDF). (D. Wyo.).

COUNSEL: For LINDY GRACE CUNNINGHAM, MICHAEL CHAD CUNNINGHAM, Plaintiff – Appellant: Gerard R. Bosch, Mary Alison Floyd, Law Offices of Jerry Bosch, LLC, Wilson, WY.

For JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming Corporation, Defendant – Appellee: James Kent Lubing, Lubing Law Group, Jackson, WY.

JUDGES: Before KELLY, MATHESON, and McHUGH, Circuit Judges.

OPINION BY: Carolyn B. McHugh

OPINION

ORDER AND JUDGMENT*

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Lindy and Chad Cunningham sued Jackson Hole Mountain Resort Corporation (JHMR)1 for injuries Mrs. Cunningham sustained when she collided with a trail sign while skiing. The district court granted summary judgment for JHMR, concluding the Cunninghams’ claims were barred by the terms of a release Mrs. Cunningham signed when she rented ski equipment from JHMR’s ski shop. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

1 Throughout this opinion, we use the acronym JHMR to refer to both the Jackson Hole Mountain Resort property and the corporation that owns the resort, Jackson Hole Mountain Resort Corporation.

  1. BACKGROUND

During a January 2013 vacation to Teton Village, Wyoming, Lindy Cunningham rented ski equipment from a JHMR shop located at the base of the resort’s ski area. During the rental process, Mrs. Cunningham signed a rental agreement,2 which included the following language (the release):

I [the signor] further agree to forever release, discharge, waive, [*2]  save and hold harmless, indemnify, and defend JHMR . . . from and against any and all claims, demands, causes of action, liabilities, actions, and any and all medical expenses or other related expenses, including damage to persons and property, asserted by others, by me, or on my behalf, my estate, executors, heirs, or assigns brought under any theory of legal liability, INCLUDING NEGLIGENCE, arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR, or my presence on JHMR premises.

2 The Cunninghams contend there is a genuine dispute of fact regarding whether Mrs. Cunningham actually signed the rental agreement because, in response to requests for admission, Mrs. Cunningham asserted she viewed the agreement on a computer screen and not in the form presented during discovery. But there is no dispute Mrs. Cunningham’s physical signature appears on the rental agreement. And there is no dispute JHMR provides the same agreement to every rental customer on a computer screen before printing a hard copy for the customer’s signature. Moreover, this evidence relates solely to the third factor in our analysis of the release’s enforceability, which requires consideration of “whether the agreement was fairly entered into.” Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986). As explained below, Mrs. Cunningham raised arguments only with respect to the fourth factor and therefore waived the arguments for which the signature evidence would be relevant. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). Accordingly, the evidence does not provide a basis to reverse the district court’s grant of summary judgment.

On January 14, while skiing at JHMR, Mr. Cunningham followed behind Mrs. Cunningham, filming her on his helmet-mounted GoPro camera. Footage from the camera shows Mrs. Cunningham fall toward the right side of the trail, slide, and then collide with a trail sign. The accident severely injured Mrs. Cunningham’s spine, rendering her a quadriplegic.

The Cunninghams sued JHMR, claiming negligence, premises liability, negligent training and supervision, and loss of consortium. After limited discovery, the district court concluded the Cunninghams’ claims were barred by the release, and it therefore granted summary judgment in JHMR’s favor.

  1. DISCUSSION

[HN1] We review the district [*3]  court’s grant of summary judgment de novo. Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002). “Because this is a diversity case, we apply the substantive law of Wyoming, the forum state.” Id. Specifically, we “must ascertain and apply state law to reach the result the Wyoming Supreme Court would reach if faced with the same question.” Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). If “no state cases exist on a point, we turn to other state court decisions, federal decisions, and the general weight and trend of authority.” Grand Targhee, 308 F.3d at 1100 (citation omitted). Here, the district court concluded the release signed by Mrs. Cunningham was valid and enforceable under Wyoming law and encompassed all of the Cunninghams’ claims. In addition, the district court determined JHMR did not act willfully or wantonly.3 We affirm each of the district court’s determinations.

3 JHMR also argued the claims were barred by the Wyoming Recreation Safety Act (WRSA), Wyo. Stat. Ann. §§ 1-1-121 to -123, because Mrs. Cunningham hit a trail sign, which is an inherent risk of skiing. But the district court denied summary judgment on this basis, and neither party has appealed this determination. Accordingly, we do not address it here.

  1. Enforceability and Scope of the Release

[HN2] Wyoming courts will enforce clauses releasing parties from liability for injury or damages so long as the clause is not contrary to public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059 (Wyo. 1986). And as relevant here, “[g]enerally, specific agreements absolving participants and proprietors from negligence liability during hazardous recreational activities are enforceable, subject to willful misconduct limitations.” Id.; see also Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999) (“Where willful and wanton [*4]  misconduct is shown, an otherwise valid release is not enforceable.”). To determine the enforceability of a particular exculpatory clause, the Wyoming Supreme Court applies a four-part test:

In reaching its determination a court considers . . . (1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Only exculpatory agreements meeting these requirements are enforceable.

Schutkowski, 725 P.2d at 1060; see also Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987) (“An agreement passing scrutiny under these factors is valid, denying the signing party an action in negligence.”). In application, the Wyoming Supreme Court has essentially combined the first two factors, stating that “[a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” Milligan v. Big Valley Corp., 754 P.2d 1063, 1066 (Wyo. 1988). The third factor has also been discussed in conjunction with the first two. See Schutkowski, 725 P.2d at 1060 (“The service provided by appellees was not a matter of practical necessity for any member of the public. It was not an essential service, so no decisive bargaining advantage existed.”). [*5]

On appeal, the Cunninghams make arguments related to the first three factors by asserting (1) JHMR owes a duty to the public because it operates on United States Forest Service land pursuant to a special use permit and is subject to federal regulation, (2) the release is contrary to public policy as expressed in the Wyoming Recreation Safety Act, and (3) the release unlawfully bars negligence actions arising from essential services such as the provision of emergency medical services at the JHMR clinic. But the Cunninghams did not raise these arguments before the district court. In their opposition to summary judgment, the Cunninghams focused exclusively on the fourth factor: whether the intention of the parties is expressed in clear and unambiguous language. In addition, the Cunninghams failed to present evidence to the district court in support of these new arguments, which is why they ask this court to take judicial notice of the requisite facts.4 Although the Cunninghams maintain they raised the public-duty issue below, the discussion was limited to isolated references in the facts section of their memorandum to the district court, which merely recited the ownership interest of the [*6]  Forest Service and the alleged existence of a special use permit. The Cunninghams did not provide analysis or argument to the district court related to JHMR’s public duty or the other two arguments now raised on appeal. Under these circumstances, the Cunninghams have forfeited these arguments, and we do not consider them for the first time on appeal. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798 (10th Cir. 1996) (“Vague, arguable references to a point in the district court proceedings do not preserve the issue on appeal.” (alterations, ellipsis, and citation omitted)).

4 Because the Cunninghams’ proffered evidence relates only to arguments not preserved for appeal, we deny the motion for judicial notice.

We therefore limit our review to  [HN3] the fourth factor, which “requires us to determine whether the release agreement evidences the parties’ intent to abrogate negligence liability in clear and unambiguous language.” Boehm, 748 P.2d at 711. To make this determination, we must “closely scrutinize” the exculpatory clause. Schutkowski, 725 P.2d at 1060. In doing so, we must interpret the clause “using traditional contract principles and considering the meaning of the document as a whole.” Massengill v. S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1135 (Wyo. 2000). In addition, “the nature of the service and the purpose of the release must be considered.” Schutkowski, 725 P.2d at 1062. Applying these principles, the district court concluded the rental agreement clearly and unambiguously released JHMR from liability for all of the Cunninghams’ [*7]  claims. We agree.

When Mrs. Cunningham signed the rental agreement, she released JHMR

from and against any and all claims, demands, causes of action, liabilities, actions, and any and all medical expenses or other related expenses, including damage to persons and property, asserted by others, by me, or on my behalf, my estate, executors, heirs, or assigns brought under any theory of legal liability, INCLUDING NEGLIGENCE, arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR, or my presence on JHMR premises.

.See Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1302 (D. Wyo. 1999) (“The Release blatantly and unambiguously [*8]  specifies that Plaintiff waived negligence claims against Defendant for all injuries resulting from participation in the recreational activity, making it even more clear than the exculpatory clauses found valid in Schutkowski and Milligan.” (internal cross-reference omitted)).

Nonetheless, the Cunninghams contend the release is unclear and/or ambiguous because the exculpatory language is “hidden,” the release is internally conflicted, and the release is overly broad. The Cunninghams also contend that, even if the release is clear and unambiguous, the parties mutually misunderstood the release to cover only rental-equipment-related injuries and that, by its terms, the release applies only to injuries arising from inherent hazards of skiing. We address each of these arguments in turn.

  1. “Hidden” Exculpatory Language

The Cunninghams first assert the exculpatory clause was too inconspicuous to be “clear and unambiguous.” We have found no case imposing a “conspicuousness” requirement to exculpatory clauses under Wyoming law.5 But even assuming enforcement of a sufficiently inconspicuous clause could offend public policy, the release here is not inconspicuous.

5 The only case the Cunninghams cite that identified such a requirement in the context of a liability waiver for recreational activity is  [*9] Kolosnitsyn v. Crystal Mountain, Inc., No. C08-05035-RBL, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491 (W.D. Wash. Aug. 28, 2009). There, the district court considered whether Crystal Mountain’s liability release was conspicuous, but it did so under Washington state law, which deems exculpatory clauses “enforceable unless they violate public policy, are inconspicuous, or the negligence falls below standards established by law.” 2009 U.S. Dist. LEXIS 79111, [WL] at *3 (citing Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 10 (Wash. 1992)). Unlike Washington, Wyoming deems exculpatory clauses enforceable unless they violate public policy; it does not consider the two additional exceptions to enforceability that Washington recognizes. See, e.g., Massengill v. S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1136 (Wyo. 2000).

The Cunninghams maintain the exculpatory language is buried in a long block of text, written in small typeface, and presented in the rental agreement under circumstances which make it appear as though the whole agreement pertains only to equipment rental. But the district court correctly explained, “While the Release is part of the Rental Agreement, it makes up the bulk of the agreement.” The entire rental agreement fills one side of one piece of paper, with the release provision placed front and center. The release is presented under a heading that states “RENTAL WARNING, RELEASE OF LIABILITY AND INDEMNITY AGREEMENT — PLEASE READ CAREFULLY BEFORE SIGNING.” Assumption of risk and waiver of liability are addressed in the first two paragraphs of the release, and they are clearly set apart from one another. Moreover, the first sentence of the release signals that its scope is broader than the rental of equipment, as it discusses the dangers of skiing in general. The exculpatory provision also stands out because the phrase “INCLUDING NEGLIGENCE” is written in all caps. Furthermore, the last paragraph of the release states in part, “I HAVE CAREFULLY READ THIS RELEASE, UNDERSTAND [*10]  ITS CONTENTS, AND UNDERSTAND THAT THE TERMS OF THIS DOCUMENT ARE CONTRACTUAL . . . . I AM AWARE THAT I AM RELEASING CERTAIN LEGAL RIGHTS THAT I OTHERWISE MAY HAVE . . . .” While the print is necessarily small, it is readable even in the further-shrunken form presented in the record on appeal. And as the district court observed, “there is nothing to suggest that [Mrs.] Cunningham requested larger print or indicated that she could not read the release.” For these reasons, even if conspicuousness is a requirement under Wyoming law, the release here was conspicuous.

  1. Internal Conflict

The Cunninghams next cite Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899-900 (D. Colo. 1998), and argue the release is ambiguous because it is both consistent and inconsistent with the Wyoming Recreation Safety Act (WRSA). But the Cunninghams’ reliance on Rowan is misplaced. There, the court found a release ambiguous in part because it specifically released the resort of liability for all risks, including the use of ski lifts. Id. at 899. The release then stated the plaintiff assumed the inherent risks of skiing as set forth in Colorado’s Ski Safety Act, a statute that explicitly states that use of ski lifts does not qualify as an “inherent risk.” Id. Thus, the release conflicted [*11]  with the relevant statutory language.

Here, by contrast, there is no conflict between the WRSA and the types of risks or injuries JHMR listed in the release.  [HN4] The WRSA does not exempt or identify specific inherent risks; it generally defines “inherent risks” as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-122(a)(i). And the release here, unlike the release in Rowan, does not incorporate by reference the WRSA. In light of these significant differences, Rowan does not support a finding of ambiguity here.

  1. Overbreadth

Next, the Cunninghams make multiple arguments related to the alleged overbreadth of the release. First, the Cunninghams argue the release is ambiguous because “it relates to all ‘activities’ and all ‘facilities’ and all ‘premises’ on ‘each and every day’ against a wide array of entities and individuals.” Because the exculpatory clause includes broad language covering all facilities and activities at the resort at any time of year, the Cunninghams conclude “[t]here is no way possible for a person to understand what this clause actually encompasses.”

At the outset, we question whether the Cunninghams adequately [*12]  preserved this argument. The Cunninghams’ opposition to summary judgment contains only a passing reference to the issue:

The []release language appears to apply to the signator’s “presence on JHMR premises.” Theoretically, if someone left the ski hill and came back for dinner at the resort and was injured as a result of [JHMR]’s negligence this release would apply. This is not clear or unambiguous or within [the] scope of renting skis.

And the Cunninghams presented no evidence in the district court of JHMR’s ownership or operation of other facilities and activities at the resort. The Cunninghams instead attempt to introduce such evidence on appeal through their motion for judicial notice.

But even if we consider this issue, the Cunninghams’ arguments fail on the merits. The release explicitly limits JHMR’s liability for “any and all claims, demands, causes of action, liabilities, actions . . . arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR.” Although this language is broad, there is nothing ambiguous about it. Indeed, the Wyoming Supreme Court rejected an analogous argument when it held that a release from liability for “legal claims or legal [*13]  liability of any kind whether foreseen or unforeseen” meant precisely what it said and thus clearly barred a plaintiff’s negligence claims. Milligan, 754 P.2d at 1068.

The Cunninghams also argue the release should be deemed void because it covers a broad range of potential injuries but is presented in a rental agreement, thus leading renters to believe they are releasing only claims for injuries caused by the rental equipment, while in fact, the release covers all injuries, including those unrelated to equipment. In support of their argument, the Cunninghams cite Kolosnitsyn v. Crystal Mountain, Inc., in which the court expressed concern about a person “unwittingly” signing away his rights because the rental-agreement release might have applied to injuries related to the rental equipment alone or to injuries related to use of the ski area. No. C08-05035-RBL, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491, at *4 (W.D. Wash. Aug. 28, 2009) (unpublished).

But the decision in Kolosnitsyn was based on facts not present here. In Kolosnitsyn, the plaintiff rented equipment from a ski shop and while skiing at an adjoining resort suffered injuries not caused by his equipment. 2009 U.S. Dist. LEXIS 79111, [WL] at *1. When he sued the resort, it invoked a release the plaintiff had signed when renting his equipment, based on the resort’s ownership [*14]  of the ski shop and the release’s waiver of claims against “the ski/snowboard shop, its employees, [and its] owners.” 2009 U.S. Dist. LEXIS 79111, [WL] at *1-2 (emphasis added). The court found the release unenforceable because it did not clearly identify the adjoining resort as the ski shop’s “owner.” 2009 U.S. Dist. LEXIS 79111, [WL] at *4. Thus, the plaintiff would not have known from the release itself that he was waiving claims against the resort, including for the resort’s own negligence. Id.

Here, by contrast, the release expressly waives claims against JHMR itself–it bars “any and all claims,” including those “arising directly or indirectly” from “use of the facilities, ski area or ski lifts at JHMR.” Thus, Kolosnitsyn does not support the Cunninghams’ position. Moreover, although neither we nor Wyoming courts have addressed this precise issue, we have concluded that an exculpatory release signed in conjunction with the rental of sporting equipment can bar claims for injuries arising out of participation in the sport but unrelated to the equipment. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1108, 1109, 1112-13 (10th Cir. 2002) (applying Colorado’s four-factor test that Wyoming has since adopted and concluding a release signed in connection with a mountain-bike rental barred negligence claims against resort for biker’s injuries [*15]  unrelated to the bike or other rented equipment).

The Cunninghams also argue the release should be held invalid because it applies to skiers who rent equipment, but not to skiers who bring their own. Although this argument finds some support in the Kolosnitsyn decision, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491, at *4, it does not fit squarely within the four-factor framework established by Wyoming law. Rather, it seems to be a general appeal to public policy. While the Wyoming Supreme Court does not enforce contracts that are contrary to public policy, it also “will not invalidate a contract entered into freely by competent parties on the basis of public policy unless that policy is well settled.” Andrau v. Mich. Wis. Pipe Line Co., 712 P.2d 372, 376 (Wyo. 1986) (internal quotation marks omitted). The Cunninghams have not shown a settled public policy in Wyoming that discourages releases like JHMR’s. Moreover, the evidence shows JHMR requires its season-pass holders to sign releases identical or similar to the one signed by Mrs. Cunningham. We therefore reject this argument.

  1. Mutual Mistake and Inherent Hazards

The Cunninghams next argue that even if the release is unambiguous, it does not bar their claims for two reasons. First, the Cunninghams maintain both they and JHMR believed the release [*16]  applied only to injuries related to rental equipment and therefore the parties were mutually mistaken as to the release’s scope. But the Cunninghams also concede they did not raise this argument before the district court. We therefore decline to address the argument because it has been forfeited and the Cunninghams did not argue plain-error review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011).

Second, the Cunninghams briefly argue that, based on the reasoning of a Wyoming state district court in Beckwith v. Weber, Civ. Action No. 14726, the exculpatory language in the second paragraph of the release must be read to apply only to injuries arising from the “inherent hazards” discussed in the first paragraph of the release. But, as the district court concluded, Beckwith is distinguishable because the release there contained only a single sentence that did not mention a release of liability for negligence. By contrast, the release here clearly and unambiguously bars negligence claims against JHMR, not just claims arising out of the inherent risks of skiing. And even if the release could be limited to the inherent risks identified in the first paragraph of the release, such risks include “collisions with . . . man-made objects [*17]  and features.” Because Mrs. Cunningham collided with a man-made trail sign, she cannot succeed on this argument, even if the release could be read to apply only to the identified inherent risks.

In sum, we agree with the district court that the release clearly and unambiguously bars the Cunninghams’ claims. And because the ambiguity of the release was the only issue preserved for our review, we conclude the release is valid and enforceable under Wyoming law.

  1. Willful and Wanton Conduct

Finally, the Cunninghams argue the release is unenforceable because JHMR engaged in willful and wanton misconduct. See Milligan v. Big Valley Corp., 754 P.2d 1063, 1068 (Wyo. 1988) ( [HN5] “Where willful and wanton misconduct is shown, an otherwise valid release is unenforceable.”). Wyoming sets a high bar for establishing willful and wanton misconduct.

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Hannifan v. Am. Nat’l Bank of Cheyenne, 2008 WY 65, 185 P.3d 679, 683 (Wyo. 2008) (emphasis omitted) (quoting Weaver v. Mitchell, 715 P.2d 1361, 1370 (Wyo. 1986)). It is “more aggravated than gross negligence.” Danculovich v. Brown, 593 P.2d 187, 191 (Wyo. 1979). “In order to [*18]  prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Cramer v. Powder River Coal, LLC, 2009 WY 45, 204 P.3d 974, 979 (Wyo. 2009) (citation omitted).

Here, there is no evidence from which a reasonable jury could conclude JHMR acted willfully or wantonly when it placed the trail sign with which Mrs. Cunningham collided. It is undisputed that the sign has been in the same spot in substantially the same form for over thirty years. Yet there was no evidence presented that anyone other than Mrs. Cunningham has collided with the sign in that time. Although the Cunninghams’ experts criticized JHMR’s choices in placing and constructing the sign, as the district court concluded, “[a]t best, the alleged failings related to the placement and construction of the sign are negligent, not willful and wanton behavior.”

Moreover, the only case to which the Cunninghams draw an analogy–Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889 (D. Colo. 1998)–is clearly inapposite. Rowan involved a skier who died after colliding with a picnic deck (1) that was at the bottom of a race course on which skiers “attained speeds in excess of 120 kilometers per hour,” id. at 892; (2) that was positioned such that skiers had “to make a hard left turn at the end of the course to avoid [*19]  the deck,” id. at 893-94; (3) that was unpadded, despite having been previously padded and despite available padding that easily could have been attached, id. at 893, 900; and (4) with which there had been several “close calls” and an actual injury on the same day the skier was killed and in the two days prior, id. at 900. In addition, the resort made the decedent and other skiers sign the release in the middle of the third day of their test runs, doing so only after receiving notice of multiple close calls and an actual injury, and claiming it routinely required releases but without producing evidence to support this claim. Id. at 898, 900. The present circumstances bear no similarity to the facts in Rowan. Where the trail sign here had been in place without known incident for over thirty years prior to Mrs. Cunningham’s accident, no reasonable jury could conclude JHMR engaged in willful and wanton misconduct by placing it there. Accordingly, the release is enforceable and bars the Cunninghams’ claims.6

6 Because Mr. Cunningham’s claim for loss of consortium is derivative of Mrs. Cunningham’s claims related to her injuries, his claim also fails. Massengill, 996 P.2d at 1137; Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment in favor of JHMR. And we DENY the Cunninghams’ motion for judicial notice.

Entered for the Court

Carolyn B. McHugh

Circuit Judge

 


Well written decision from Wyoming defines release law and how releases should be written.

This case is interesting because one of the attempts to remove the release from the decision was a claim the plaintiff was at the defendant gym working out because he was told to by a physician, and the gym was owned by a different physician.

Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

Plaintiff: James Massengill and Kaylea Massengill

Defendant: S.M.A.R.T. Sports Medicine Clinic, P.C.

Plaintiff Claims: Negligence, loss of consortium

Defendant Defenses: Release

Holding: For the defendant

The plaintiff was injured when a pin in a lat-pull-down machine that secured the weights came out, and he fell backwards injuring his wrist. The plaintiff sued, and the defendant raised the defense of release.

The plaintiff was told by his physician to exercise more. One day while at a drugstore, he had met an owner of the defendant gym, a physician, who talked to him about the gym.

The plaintiff and his wife went to the gym. They were given a release and told to take it home and read it. Three days later the plaintiff’s came back, signed the release and began to use the facilities.

The plaintiff had not asked for instructions on the lat-pull-down machine and did not ask for any because he had used one previously. He had been using the particular machine for a month and had noticed that the pin did not appear to fit when he was injured.

The trial court ruled the release was valid and barred the claims of the plaintiffs, dismissing the case. The plaintiff’s appealed. This case is based in Wyoming, which only has trial courts and the Wyoming Supreme Court, in intermediate appellate courts.

Summary of the case

The court first looked at the language of the release, to determine if the language was clear and unequivocal.

Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T., and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T.

The court found the language was clear and unequivocal as well as broad and specially released the defendant from claims and actions for negligence.

The court then examined the release based on contract law. Releases are contracts and are interpreted using traditional contract principles. The entire document is examined as a whole.

The language of the Agreement and Release is clear in manifesting an intention to release S.M.A.R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.”

Wyoming has four factors to examine to determine if a release is valid.

(1) whether a duty to the public exists;

(2) the nature of the service performed;

(3) whether the contract was fairly entered into; and

(4) whether the intention of the parties is expressed in clear and unambiguous language

The court found the release in question was properly reviewed by the trial court, and the release met all four tests. The court then looked at the plaintiff’s claims the release violated public policy. Under Wyoming law, a duty to the public exists “if the nature of the business or service affects the public interest, and the service performed is considered an essential service.” A release that affecting a public interest giving rise to a duty to the public is one that:

“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 * * *. 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 Wyoming, this list of businesses would be “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities.”

A health club or gym is recreational in nature and do not meet the requirements and do not qualify as a business suitable for public regulation. A gym or health club is not essential.

The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential….

Then court then looked at the plaintiff’s claims that he was at the gym for medical reasons. However, the court could find no evidence that the plaintiff was at the gym engaging in rehabilitation.

The court then looked at the plaintiff’s claim that there was a disparity of bargaining power between the parties which should void the release. However, this argument also failed.

Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.

The plaintiff’s raised one final argument that claimed the Wyoming Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123:

…creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity.

The court called this a convoluted argument and did not agree with the argument.

The final argument was based on the wife’s claim for loss of consortium. The court held there were two different ways this claim also failed. The first was the wife signed a release at the same time as her husband; the plaintiff and the release stopped her suit. Also because her claim of loss of consortium is derivative, meaning only can exist if the original claim exists, then her claim fails also.

The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order.

The court upheld the trial courts dismissal of the claims.

So Now What?

This is a great decision to assist in writing a release in Wyoming. Of interest was the fact the court pointed out, the plaintiffs were given three days to review the release before signing.

The four requirements for a release are similar to most other states. How you deal with the issue of someone at your facility for health or rehabilitation reasons might present a problem.

What do you think? Leave a comment.

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Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

James Massengill and Kaylea Massengill, Appellants (Plaintiffs), v. S.M.A.R.T. Sports Medicine Clinic, P.C., Appellee (Defendant).

No. 98-150

SUPREME COURT OF WYOMING

996 P.2d 1132; 2000 Wyo. LEXIS 21

February 14, 2000, Decided

PRIOR HISTORY: [**1] Appeal from the District Court of Laramie County. The Honorable Nicholas G. Kalokathis, Judge.

DISPOSITION: Affirmed.

COUNSEL: Representing Appellants: Robert A. Hampe, Cheyenne, Wyoming (Withdrew pursuant to an Order of Suspension Upon Consent entered in the Wyoming Supreme Court on June 18, 1999.)

Representing Appellee: John I. Henley of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming.

JUDGES: Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, * JJ.

* Retired November 2, 1998.

OPINION BY: THOMAS

OPINION

[*1132] THOMAS, Justice.

The only issue in this case is whether a waiver of liability in a contract between S.M.A.R.T. Sports Medicine Clinic, P.C. (S.M.A.R.T.) and James Massengill (Massengill) is enforceable under the standards adopted in Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) and followed in later cases. Massengill was using a lat-pull-down machine at S.M.A.R.T. when a pin used to secure the weights fell out. Apparently the pin did not fit properly in the machine, and when the pin fell out, Massengill fell over backwards injuring his wrist. In various statements of the [*1133] issues, Massengill attacks the validity of the waiver of liability on the grounds [**2] that it violated public policy; the business of S.M.A.R.T. is suitable for public regulation; the use of the premises at the time of injury by Massengill is not material; the question of duty is one that must be determined by a trier of fact; and S.M.A.R.T. owed a statutory duty to Massengill which invalidates the waiver. Our review of the record and legal precedent in Wyoming persuades us that the district court ruled correctly that there is no genuine issue of material fact in this case, and S.M.A.R.T. is entitled to judgment as a matter of law. The Order Granting Defendant’s Motion for Summary Judgment is affirmed.

In the Appellants’ Supreme Court Brief, filed on behalf of James Massengill and Kaylea Massengill (collectively the Massengills), these issues are stated:

Issue I

Did the district court error [sic] in validating the “waiver of liability” in the “sports specific training and advanced rehab agreement and release[“] due to the fact that:

(A) The release violated public policy,

(B) The business operated by appellee is suitable for public regulation, and

(C) Plaintiff J. Massengill was engaged in non therapeutic activities on the premises of [**3] the medical clinic has no bearing on whether the release should be validated or not?

Issue II

Is the duty issue in this case purely a question of law where the basic facts are undisputed or is the duty issue one which can only be determined by the trier of fact?

Issue III

Did appellee owe a statutory duty of care to appellant which would invalidate the waiver incorporated in the sports specific training and advanced rehabilitation agreement & release?

In the Brief of Appellee S.M.A.R.T. Sports Medicine Clinic, P.C., the issues are stated in this way:

Was the waiver of liability executed by the Appellants valid[?]

(i) Was the Appellee’s waiver language inclusive and unambiguous as required by prior Wyoming Supreme Court case law; [or]

(ii) Is the waiver language of the Appellee contrary to public policy[?]

One evening James Massengill engaged in a conversation at a Cheyenne drugstore with the equity owner of S.M.A.R.T., a physician in Cheyenne. Massengill knew that S.M.A.R.T. had a weight room, and had seen recent advertisements to the effect that the facility offered personal trainers to assist members. In the course of a brief [**4] conversation, Massengill mentioned his interest in S.M.A.R.T.’s facilities, and the physician suggested he come over and try it out. A month or two following the conversation, Massengill went to S.M.A.R.T. and toured the facilities. The purpose of his initial visit was to assure himself that the equipment met his need, which was to get in better condition.

After he had been shown the facilities and the equipment, Massengill was given a Sports Specific Training and Advanced Rehabilitation Agreement and Release (Agreement and Release) to take home and review. Three days later, both Massengill and his wife executed the Agreement and Release, and they began using the facilities. Massengill was present at S.M.A.R.T. almost every day, and he had been using the lat-pull-down machine for nearly a month prior to his injury. He had not asked any questions about using the machine because he had used one previously. On March 13, 1996, Massengill was warming up on the machine, and he noticed that the pin holding the weights was shaped like a “T” rather than the longer “I” usually used. When Massengill pulled the bar down, the pin holding the weights popped out, and he fell over backwards, hitting [**5] his left hand and injuring his wrist.

On May 29, 1997, the Massengills filed their Complaint for Negligence and Damages. The first count of the Complaint for Negligence and Damages was couched in terms of alleged negligence causing injury to James Massengill, and the second count was couched in terms of recovery by Kaylea Massengill [*1134] for loss of consortium based upon her husband’s injuries. Various procedural steps, including discovery, followed the Answer by S.M.A.R.T., which included the affirmative defense of waiver and the affirmative defense that Kaylea Massengill’s claims were derivative of James Massengill’s claim. On October 3, 1997, there was filed by facsimile a Defendant’s Motion for Summary Judgment accompanied by a Memorandum in Support of Defendant’s Motion for Summary Judgment. Additional procedural steps ensued, and on February 2, 1998, the district court entered an Order Granting Defendant’s Motion for Summary Judgment.

The district court ruled that the exculpatory clause, including the release and waiver, was not ambiguous and was enforceable. Since the premise for the grant of the summary judgment by the district court was the language contained in the Agreement [**6] and Release, the district court ruled implicitly that any other issues of fact, genuine or not, were not material. The Massengills have appealed from the Order Granting Defendant’s Motion for Summary Judgment.

In Mercado v. Trujillo, 980 P.2d 824, 825-26 (Wyo. 1999), we summarized our rules with respect to review of summary judgments:

“‘When [HN1] a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court’s dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.'” Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). [**7] See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).

“A [HN2] summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo.[,] 550 P.2d 490 (1976). [HN3] After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat’l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of the Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence [**8] at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt.” Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).

Nowotny v. L & B Contract Industries, 933 P.2d 452, 455 (Wyo.1997) (quoting Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985)).

More specifically and succinctly, with respect to this case, when review is sought of a summary judgment this Court must determine that there is no genuine issue of a material fact and the party prevailing in the district court is entitled to judgment as a matter of law. Utilization of summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. [HN4] In accomplishing the review of a summary judgment resting upon a question [*1135] of law, our review is de novo and affords no deference to the district court’s ruling on that question. E.g., Roberts v. Klinkosh, 986 P.2d 153, 156 (Wyo. 1999); Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo. 1999); [**9] Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 949 (Wyo. 1998).

Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T. and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T. It continues with this language:

1. Any member using S.M.A.R.T. SPORTS facility shall undertake any and all risks. The member shall also be liable for any and all risks. S.M.A.R.T. SPORTS shall not be liable for any injuries or damage to any member, or the property of the member, or be subject to any claim, demand, injury or damages whatsoever, including, without limitation, those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents. The member, for himself/herself and on behalf of his/her executors, administrators, heirs, assigns, and assignees and successors, does hereby expressly forever [**10] waive, release and discharge S.M.A.R.T. SPORTS, its owners, officers, employees, agents, assigners and successors from all such claims, demands, injuries, damages, actions or causes of action.

The language of the Agreement and Release is broad, and specifically releases S.M.A.R.T. from claims and actions for negligence. Indeed, the Massengills do not assert that the agreement does not apply to this action; instead, their contention is that the agreement is not enforceable. In the absence of any genuine issue of a material fact with respect to the language of the Agreement and Release, the issue is a pure question of law with respect to whether the district court invoked and correctly applied the pertinent rules of law.

In Shepard v. Top Hat Land & Cattle Co., 560 P.2d 730, 732 (Wyo. 1977), the applicable rule was summarized:

[HN5] If the language of the contract is plain and unequivocal that language is controlling and the interpretation of the contractual provisions is for the court to make as a matter of law. The meaning of the instrument is to be deduced only from its language if the terms are plain and unambiguous. Mauch v. Ballou, Wyo., 499 P.2d 591 (1972); [**11] Craig v. Gudim, Wyo., 488 P.2d 316 (1971); Chandler-Simpson, Inc. v. Gorrell, Wyo., 464 P.2d 849 (1970); Flora Construction Company v. Bridger Valley Electric Association, Inc., Wyo., 355 P.2d 884 (1960); Barlow v. Makeeff, 74 Wyo. 171, 284 P.2d 1093 (1955).

This rule first was alluded to by this Court in Horvath v. Sheridan-Wyoming Coal Co., 58 Wyo. 211, 230, 131 P.2d 315, 321 (1942), and it has been consistently applied over the years, appearing most recently in Saulcy Land Co. v. Jones, 983 P.2d 1200, 1202 (Wyo. 1999).

[HN6] Exculpatory clauses or releases are contractual in nature, and we interpret them using traditional contract principles and considering the meaning of the document as a whole. Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 712 (Wyo. 1987); Schutkowski, 725 P.2d at 1059; Kelliher v. Herman, 701 P.2d 1157, 1159 (Wyo. 1985). The language of the Agreement and Release is clear in manifesting an intention to release S.M.A. [**12] R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.” And, just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the entire membership application evidences no other rational purpose for which it could have been intended.”

The Massengills endeavor to avoid the release and waiver articulated in the Agreement and Release by arguing that it is not valid as a matter of public policy because the business of S.M.A.R.T. is appropriate for [*1136] public regulation, and the nature of the use of the equipment by Massengill is not material to the public policy or public regulation determination. We said in Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999):

[HN7] In Wyoming, a contract limiting liability for negligence may be enforced only if it does not contravene public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059-60 (Wyo.1986); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987); Brittain v. Booth, 601 P.2d 532, 535 (Wyo.1979). [**13]

In Schutkowski, 725 P.2d at 1060, this Court adopted from Colorado a four-part test for evaluating a negligence exculpatory clause. [HN8] The factors the court considers are: “(1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” A comparison of Massengill’s claim with these factors leads to the ineluctable conclusion that the district court’s decision was correct as a matter of law.

We said in Milligan, 754 P.2d at 1066, “[ [HN9] a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” We then adopted from California [HN10] a definition of a release agreement affecting the public interest, giving rise to a public duty, which is that 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 [**14] 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 * * *. 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.” (Emphasis added and footnotes omitted.) Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46, 6 A.L.R.3d 693 (1963).

Milligan, 754 P.2d at 1066. We also adopted a [HN11] list of examples of services which are typically subject to public regulation and which demand a public duty or are considered essential. The list includes common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities. Milligan, 754 P.2d at 1066.

Schutkowski was a case involving a sky diving injury, and we held that [HN12] a private recreational business does not qualify as one that owes a special duty to the public nor are its services of a special, highly [**15] necessary nature. Schutkowski, 725 P.2d at 1060. The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential, and there was no greater duty to the public than existed in Schutkowski, Boehm or Milligan. The district court in its Order Granting Defendant’s Motion for Summary Judgment cites and relies upon decisions from other jurisdictions which have held that [HN13] exculpatory clauses in health club contracts do not violate public policy. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982); Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (1995). We are persuaded that the approach of the courts in Minnesota and Washington is the correct rule.

Massengill further maintains that he joined S.M.A.R.T. pursuant to a doctor’s order, and as such was receiving an essential service; therefore, S.M.A.R.T. owed him a public duty that is subject to regulation. A casual conversation, at a drugstore one evening, with the doctor/equity [**16] owner of the S.M.A.R.T. facility hardly qualifies as a prescription. The doctor was not Massengill’s treating physician nor was he acting in that capacity; he engaged in the conversation as the owner of the facility and not a physician. Moreover, the record is devoid of evidence showing that on the day he was injured, Massengill was engaging in a rehabilitation program. He admitted joining S.M.A.R.T. to [*1137] get into better physical condition. That was the purpose of his membership at S.M.A.R.T., and it qualifies as a recreational activity and not a practical necessity. Based on Massengill’s own testimony, his membership was purely recreational and not pursuant to a doctor’s order. There is no genuine issue of material fact as to the purpose or nature of Massengill’s use of the S.M.A.R.T. facility that needs to be resolved.

The third factor in the Schutkowski test is whether the contract was fairly entered into. Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining [**17] strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.” Milligan, 754 P.2d at 1066. Similar to the releases in Milligan, which involved an optional ski race, and Schutkowski, which involved sky diving, no evidence suggests that Massengill was unfairly pressured into signing the agreement or was deprived of the opportunity to understand its implications. In fact, after Massengill initially toured the facilities, he was given the Agreement and Release to take with him, which he filled out at home and returned three days later.

In determining that the Order Granting Defendant’s Motion for Summary Judgment should be considered under principles of contract law, we held that the last factor of the Schutkowski test is satisfied in this case. The intent of the parties was clearly expressed in clear and unambiguous language. [HN14] We interpret exculpatory clauses or releases using traditional contract principles, and consider the meaning of the document as a whole. Milligan, 754 P.2d at 1067. Just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the [**18] entire membership application evidences no other rational purpose for which it could have been intended.”

In a further effort to avoid the Agreement and Release, the Massengills present an argument that the Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 (Lexis 1999), creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity. The Massengills rely upon Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), and the distinction drawn in that case between primary assumption of risk and secondary assumption of risk. The thrust of this rather convoluted argument is that, if the conduct of the defendant comes within the category of secondary assumption of risk, a statutory duty is created by the language that preserves actions based on negligence. The Massengills then contend that the Agreement and Release cannot be enforced because it is contrary to the statutory duty. No authority is cited for that precise proposition, and we are satisfied that [HN15] the Recreation Safety Act does not foreclose [**19] the invocation of a contractual release or waiver for negligent conduct that is not released by the assignment of the inherent risk to the person participating in the sport or recreational opportunity under the statute. Indeed, the limited reach of the statute would suggest that a contractual release in addition to the statute would be prudent.

With respect to the claim of Kaylea Massengill for loss of consortium, her cause of action was included in the Order Granting Defendant’s Motion for Summary Judgment. She executed the same Agreement and Release that James Massengill signed. Furthermore, her claim for loss of consortium was derivative of James Massengill’s claim for injuries, and it fails when his claim fails. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1301 (Wyo. 1995); Boehm, 748 P.2d at 708.

The only pertinent issue in this case was whether the exculpatory clause should be held to violate public policy and not enforced for that reason. The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally [**20] thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order. The case [*1138] is correctly resolved as a matter of law under principles relating to contract, and the contractual language being clear and unambiguous, there are no genuine issues of material fact. The case is controlled by Schutkowski and the later cases that followed it. We affirm the district court’s Order Granting Defendant’s Motion for Summary Judgment.


Wyoming Recreational Safety Act

Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123

§ 1-1-121.Recreation Safety Act; short title.

This act shall be known and may be cited as the “Recreation Safety Act”.

§ 1-1-122.  Definitions.

(a)  As used in this act:

(i)   “Inherent risk” with regard to any sport or recreational opportunity means those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity;

(ii)  “Provider” means any person or governmental entity which for profit or otherwise, offers or conducts a sport or recreational opportunity. This act does not apply to a cause of action based upon the design or manufacture of sport or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational opportunity;

(iii) “Sport or recreational opportunity” means commonly understood sporting activities including baseball, softball, football, soccer, basketball, swimming, hockey, dude ranching, nordic or alpine skiing, mountain climbing, river floating, hunting, fishing, backcountry trips, horseback riding and any other equine activity, snowmobiling and similar recreational opportunities;

(iv) “Equine activity” means:

(A) Equine shows, fairs, competitions, performances or parades that involve any or all breeds of equines;

(B) Any of the equine disciplines;

(C) Equine training or teaching activities, or both;

(D) Boarding equines;

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

(F) Rides, trips, hunts or other equine activities of any type however informal or impromptu;

(G) Day use rental riding, riding associated with a dude ranch or riding associated with outfitted pack trips; and

(H) Placing or replacing horseshoes on an equine.

(v)  Repealed by Laws 1996, ch. 78, § 2.

(vi) “This act” means W.S. 1-1-121 through 1-1-123.

§ 1-1-123.  Assumption of risk.

(a)  Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b)  A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

(c)  Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.

 


Bill before congress to open the Yellowstone River and Grand Teton National Parks to paddling has an interesting side

The bill is sponsored by, let’s say, a very non environmental supporter in Congress. The bill is part of several other bills which are not so innocuous and the bill opens vast areas to paddling that the NPS will not be able to control.

You can find the bill here:

113th CONGRESS

1st Session

H. R. 3492

IN THE HOUSE OF REPRESENTATIVES

November 14, 2013

Mrs. Lummis (for herself and Mr. Bishop of Utah) introduced the following bill; which was referred to the Committee on Natural Resources

A BILL

To provide for the use of hand-propelled vessels in Yellowstone National Park, Grand Teton National Park, and the National Elk Refuge, and for other purposes.

1.

Short Title

This Act may be cited as the ” River Paddling Protection Act “.

2.

Regulations Superseded

(a)

In general

The following regulations shall have no force or effect with regard to hand-propelled vessels and the Secretary of the Interior may not issue substantially similar regulations that apply to hand-propelled vessels:

(1)

Section 7.13(d)(4)(ii) of title 36, Code of Federal Regulations, regarding vessels on streams and rivers in Yellowstone National Park.

(2)

Section 7.22(e)(3) of title 36, Code of Federal Regulations, regarding vessels on lakes and rivers in Grand Teton National Park.

(b)

Wildlife-Dependent recreational use

Notwithstanding section 25.21(a) of title 50, Code of Federal Regulations, regarding National Elk Refuge, the use of hand-propelled vessels on rivers and streams in the National Elk Refuge shall be considered a “wildlife-dependent recreational use” as that term is defined in section 5(2) of Public Law 89–669 ( 16 U.S.C. 668ee(2) ).

On the surface it looks great. We can paddle on a couple of rivers that have been closed forever. However, does it open up too much?  It does not stop on the Yellowstone River but all rivers in Yellowstone National park. The same with Grand Teton National Park, everything will be fair paddling game.

Honestly, I don’t know if that is good, great or bad.  You need to read and investigate for yourself.

Here are some comments: Protection of parks requires self restraint and Lummis Boating Legislation for Yellowstone and Grand Teton Parks Misguided.

Do Something

Read, educate yourself and get involved.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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Wyoming Ski Area Statute

WYOMING STATUTES ANNOTATED

Title 6  Crimes and Offenses

Chapter 9  Miscellaneous Offenses

Article 2.  Other

GO TO CODE OF WYOMING ARCHIVE DIRECTORY

Wyo. Stat. § 6-9-201  (2012)

§ 6-9-201.  Trespass on closed or unsafe areas within ski areas; penalty; exceptions.

  (a) A person is guilty of a misdemeanor punishable by a fine of not more than one hundred dollars ($100.00) if he:

   (i) Skis on a slope or trail that has been posted as “closed”;

   (ii) Knowingly enters upon public or private lands from an adjoining ski area when the lands have been closed by the owner and posted as closed by the owner or by the ski area operator; or

   (iii) Intentionally enters state or federal land leased and in use as a ski area, knowing:

      (A) The lessee of the premises has designated the land as an unsafe area; or

      (B) The land has been posted with warning signs, prohibiting entry, which are reasonably likely to come to the attention of the public.

 (b) This section does not apply to peace officers, national park or forest service officers, or persons authorized by the lessee of the premises.

HISTORY: (Laws 1982, ch. 75, § 3; 1989, ch. 202, § 1.)

NOTES: Law reviews.

For article, “Recreational Injuries and Inherent Risks: Wyoming’s Recreation Safety Act: An Update,” see XXXIII Land & Water L. Rev. 249 (1998).

Am. Jur. 2d, ALR and C.J.S. references.

Liability for injury or death from ski lift, ski tow or similar device, 95 ALR3d 203.

Ski resort’s liability for skier’s injuries resulting from condition of ski run or slope, 55 ALR4th 632.

   HIERARCHY NOTES:

   Tit. 6 Note

   Tit. 6, Ch. 9 Note

Wyo. Stat. § 6-9-301  (2012)

§ 6-9-301.  Skier safety; skiing while impaired; unsafe skiing; collisions; penalties.

  (a) No person shall move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any illicit controlled substance or other drug as defined by W.S. 35-7-1002.

(b) No person shall ski in reckless disregard of his safety or the safety of others.

(c) No skier involved in a collision with another person in which an injury results shall leave the vicinity of the collision before giving his name and current address to an employee of the ski area operator or a member of the ski patrol except for the purpose of securing aid for a person injured in the collision, in which event the person leaving the scene of the collision shall give his name and current address as required by this subsection within twenty-four (24) hours after securing aid.

(d) Any person violating this section is guilty of a misdemeanor punishable by imprisonment for not more than twenty (20) days, a fine of not more than two hundred dollars ($200.00), or both.

HISTORY: (Laws 1989, ch. 202, § 2.)

NOTES: Law reviews.

For article, “Recreational Injuries and Inherent Risks: Wyoming’s Recreation Safety Act: An Update,” see XXXIII Land & Water L. Rev. 249 (1998).

Am. Jur. 2d, ALR and C.J.S. references.

Products liability: skiing equipment, 76 ALR4th 256.

Skier’s liability for injuries to or death of another person, 75 ALR5th 583.

   HIERARCHY NOTES:

   Tit. 6 Note

   Tit. 6, Ch. 9 Note

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