“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry
Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.
Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.
“There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”
While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.
The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.
TABLE OF CONTENTS
Table of Cases
Outdoor Recreation Law and Insurance: Overview
Perception versus Actual Risk
Risk v. Reward
Risk Management Strategies
Humans & Risk
Risk = Accidents
Accidents may/may not lead to litigation
How Do You Deal with Risk?
How Does Acceptance of Risk Convert to Litigation?
Negative Feelings against the Business
Risk, Accidents & Litigation
No Real Acceptance of the Risk
No Money to Pay Injury Bills
No Health Insurance
Insurance Company Subrogation
Dealing with Different People
Dealing with Victims
Develop a Friend & Eliminate a Lawsuit
Don’t Compound Minor Problems into Major Lawsuits
Emergency Medical Services
Additional Causes of Lawsuits in Outdoor Recreation
How Do You Handle A Victim?
Dealing with Different People
Dealing with Victims
Legal System in the United States
State Court System
Federal Court System
Other Court Systems
Parties to a Lawsuit
Breach of the Duty
Determination of Duty Owed
Duty of an Outfitter
Duty of a Guide
Duty of Livery Owner
Duty of Rental Agent
Duty of Volunteer Youth Leader
In Loco Parentis
Willful & Wanton Negligence
Negligence Per Se
Results of Acts That Are More than Ordinary Negligence
Breach of Contract
Breach of Warranty
Warranty of Fitness for a Particular Purpose
Warranty of Merchantability
Warranty of Statute
Food Service Liability
Skier Safety Acts
Whitewater Guides & Outfitters
Equine Liability Acts
Assumption of Risk
Express Assumption of Risk
Implied Assumption of Risk
Primary Assumption of Risk
Secondary Assumption of Risk
Assumption of Risk & Minors
Assumption of Risk Documents.
Assumption of Risk as a Defense.
Statutory Assumption of Risk
Express Assumption of Risk
Joint and Several Liability
Release, Waivers & Contracts Not to Sue
Why do you need them
Covenants Not to sue
Who should be covered
What should be included
Jurisdiction & Venue Clause
Assumption of Risk
Hold Harmless Agreement
Drug and/or Alcohol clause
Medical Transportation & Release
What the Courts do not want to see
Statute of Limitations
Agreements to Participate
Parental Consent Agreements
Informed Consent Agreements
Standards, Guidelines & Protocols
Specific Occupational Risks
Personal Liability of Instructors, Teachers & Educators
College & University Issues
Animal Operations, Packers
Canoe Livery Operations
Ski Rental Programs
Indoor Climbing Walls
Retail Rental Programs
Risk Management Plan
Introduction for Risk Management Plans
What Is A Risk Management Plan?
What should be in a Risk Management Plan
Risk Management Plan Template
Ideas on Developing a Risk Management Plan
Preparing your Business for Unknown Disasters
Building Fire & Evacuation
Dealing with an Emergency
Theory of Insurance
Personal v. Commercial Policies
Types of Policies
Personal Injury Protection
Named Peril v. All Risk
Types of Policies
Federal and State Government Insurance Requirements
Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)
Supreme Court of New York, Kings County
December 4, 2018, Decided
2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U) **
[**1] STEVEN LEVINE, Plaintiff(s), -against-USA CYCLING, INC. & KISSENA CYCLING CLUB, INC., Defendant(s). Index No: 515257/15
Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs
DECISION / ORDER
Defendant, USA Cycling, Inc. (“USA Cycling”) has moved, pursuant to CPLR §3212, for an Order awarding summary judgment to the defendant and a dismissal of the plaintiff’s, Steven Levine, (“Mr. Levine”) complaint upon the grounds that the defendant was not negligent, and thus not liable for plaintiff’s injuries as they owed no duty to the plaintiff. The plaintiff opposes the relief sought by the defendant, USA Cycling, and maintains that the latter was negligent in that they had a greater involvement than just sanctioning the race in which the plaintiff was injured, and they failed to properly supervise, maintain and control the race in which the plaintiff who was not a participant in the race was seriously injured.
In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event [*2] when he collided with another cyclist who was a participant in the bike race.
As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention, an action was commenced on behalf of the plaintiff by the filing of a summons and complaint on or about December 21, 2015. Issue was joined by the service of a verified answer by USA Cycling on or about March 15, 2016. The plaintiff served a response to defendant’s Demand for a Verified Bill of Particulars dated March 24, 2016. Depositions of the plaintiff, as well as Todd Sowl, the chief financial officer of USA Cycling, were conducted on September 27, 2016.
In October 2016, the plaintiff moved to amend their complaint to add Kissena Cycling Club Inc., (“Kissena Cycling Club”) as an additional defendant. Kissena Cycling Club did not appear nor answer the complaint, but a default judgment had not been sought against said party.
Defendant’s contention (USA Cycling, Inc.):
The defendant, in [*3] moving for summary judgment and a dismissal of the plaintiff’s complaint, maintains that the relief sought herein should be granted because in the absence of a [**3] duty to the plaintiff there cannot be a breach and without a breach they cannot be liable for negligence.
The defendant maintains that USA Cycling merely sanctioned the event that was run by Kissena Cycling Club. They issued a permit to allow Kissena Cycling Club to use the name of USA Cycling during the event.
Defendant asserts that there is no evidence to support an argument as to the existence of a principal-agent relationship between USA Cycling and Kissena Cycling Club nor was there any evidence of control by USA Cycling or consent by USA Cycling to act on its behalf. In addition, there is no written agreement between the two entities.
In support of defendant’s motion, is the affidavit of Todd Sowl in which he stated that USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent [*4] company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.
Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.
[**4] Plaintiff’s contention:
In opposing the motion of USA Cycling for summary judgment, plaintiff maintains that USA Cycling was sufficiently involved with the cycling event that caused plaintiff’s injuries that would result in their owing a duty to the plaintiff. Plaintiff contends that USA Cycling was negligent in their failure to properly operate, supervise, maintain, manage and control the bicycle race.
The plaintiff asserts that USA Cycling by its chief operating officer, Mr. Sowl, [*5] in both his deposition and his supporting affidavit stated that his organization sanctioned the cycling event in Prospect Park. They collect some fees to compensate for sanctioning the event and provide insurance for the event.
The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.
The plaintiff asserts that negligence cases by their very nature do not lend themselves to summary dismissal since the issue of negligence is a question for jury determination. The plaintiff maintains that the proof submitted by USA Cycling does not satisfy their initial burden of establishing the absence of a material issue of fact.
This Court has considered the submissions of counsel’ for the respective parties, the arguments presented herein, as well as the applicable law, in making a determination with respect to the motion by defendant, USA Cycling, for summary judgment and a dismissal of plaintiff’s action.
The moving party in a motion for summary judgment bears the initial burden of demonstrating a prima facie entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate the absence of any material issue of fact (Drago v. King, 283 AD2d 603, 725 NYS2d 859 [2nd Dept. 2001]).
In support of USA Cycling’s motion for summary judgment, the defendant offers the deposition testimony of Todd Sowl, as well as Charles Issendorf, the event director of Kissena Sports Project Inc. d/b/a Kissena Cycling Club, who was deposed on June 14, 2018 in the related action, as well as case law which examined whether a party under similar circumstances would have been found to be negligent and thus liable to an injured party.
To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644 . In the absence of a duty, there is no breach and without a breach there is no liability (see Light v. Antedeminico, 259 A.D.2d 737, 687 N.Y.S.2d 422; Petito v. Verrazano Contr. Co., 283 A.D.2d 472, 724 N.Y.S.2d 463 [2nd Dept. 2001]).
In determining whether USA Cycling had a duty to the plaintiff, this Court examined the role of USA Cycling and specifically [*7] its involvement in this race, as well as that of the Kissena Cycling Club. The Court further considered the deposition testimony of Todd Sowl as well as Charles Issendorf.
USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While [**6] they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.
This lack of control over the event by USA Cycling and by contrast the control exhibited by the Kissena Cycling Club is further demonstrated through the deposition testimony of Charles Issendorf. [*8] Mr. Issendorf as the race director for Kissena Cycling Club has been organizing races for fourteen years. Mr. Issendorf characterized his club as more of a social club where its members race together. There are generally thirty races conducted between the months of March and September with the venues being in both Prospect Park and Floyd Bennett Field which is also situated in Brooklyn, New York. Mr. Issendorf testified that he obtains the permit for the subject race directly from the representatives of Prospect Park. Mr. Issendorf is instructed to have certain safety measures implemented at all races. He sets up the course by putting out the safety measures which includes the safety signs that are needed for the race. He also organizes the race marshals, and the pace and follow motorcycles to ensure that there is a motorcycle in both the front and back of each group.1 Mr. Issendorf further testified that Prospect Park has rules in terms of the placement of safety cones and signs that are needed, as well as the race marshals. Kissena Cycling club provides what could be characterized as “lawn signs” and Mr. Issendorf personally places these signs in the grass along the bike route. There [*9] are also traffic safety cones throughout the course that contain a sign which bear the words “caution, bicycle [**7] race”, that are placed there by Mr. Issendorf. The signs are generally situated one hundred meters apart and they are placed at crosswalks, entrances to the park, as well as at high traffic areas where there is a concentration of people. As to the course, the two lanes to the right of a double white line is where the participants are allowed to race. To the left of the double white line is the location of the pedestrian or the recreation lane. There are written instructions on the website of the club which states that at all times the participants are not allowed to enter the pedestrian or recreation lane. The race organizers also make use of a portable PA system at the race in which the chief referee warns the riders to stay to the right of the white right lane, and if they were to cross into the recreation lane it would result in their disqualification.
This Court finds that while USA Cycling sanctioned the race of June 14, 2014, the plaintiff has not sufficiently refuted the assertion and proof offered by USA Cycling that the latter did not organize, direct, control, supervise [*10] or select the venue nor did they have any employees or agents at the cycling event, and thus, had no duty to the plaintiff. Courts have addressed situations that are akin to the case at bar. The Court in Chittick v. USA Cycling Inc., 54 AD3d 625, 863 NYS2d 679 [1st Dept. 2008]), in finding that an award of summary judgment and a dismissal of the action against USA Cycling was warranted, in which spectators were injured during a bicycle race when struck by the rear pace vehicle, determined that USA Cycling had no duty to prevent any negligence involved therein. The Court in Chittick determined that USA Cycling merely sanctioned the race by lending its name to the race. The fact that USA Cycling provided the rule book to the organizer of the race did not impose a duty upon them to enforce any of the rules thereon. There was also no inference drawn as to the existence of a principal-agency relationship between USA Cycling and the race organizer.
[**8] The Court in Megna v. Newsday, Inc., 245 AD2d 494, 666 NYS2d 718 [2nd Dept. 1997], in granting summary judgment to the defendant, determined that the defendant merely sponsored the race in which the injured plaintiff had participated. It was determined that the defendant owed no duty of care to the plaintiff as the defendant was not in any way involved in the design, layout, maintenance [*11] or control of the race course, and was not in a position to assume such control (see also Mongello v. Davos Ski Resort, 224 A.D.2d 502, 638 N.Y.S.2d 166 [2nd Dept. 1966]; Johnson v. Cherry Grove Island Management Inc., 175 AD2d 827, 573 NYS2d 187 [2nd Dept. 1991]).
This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.
Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
Scott-Moncrieff v. Lost Trails, LLC
United States District Court for the Middle District of Pennsylvania
August 29, 2018, Decided; August 29, 2018, Filed
CIVIL ACTION NO. 3:16-CV-1105
2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742
PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants
exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym
For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.
Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.
I. Factual Background and Procedural History
The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:
LR 56.1 Motions for Summary Judgment.
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.
Local Rule 56.1 (emphasis added).
To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.
On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).
In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.
2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.
3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.
4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.
5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.
6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.
7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.
8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.
9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.
l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.
I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.
(Doc. 54-1, at 21).
Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).
II. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).
As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).
A. The Exculpatory Clause is Valid
An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.
The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.
B. The Exculpatory Clause is Enforceable
Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.
1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”
Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:
The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,
The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.
2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.
Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.
3. The waiver is properly conspicuous.
Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.
However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).
The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.
Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:
I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.
These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.
For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.
AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.
United States District Court for the Western District of Wisconsin
December 28, 2018, Decided; December 28, 2018, Filed
2018 U.S. Dist. LEIS 217233 *
STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.
helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed
Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.
For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.
For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.
For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.
For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.
OPINION & ORDER
Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.
K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.
At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.
Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.
The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.
The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.
The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.
Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.
K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.
A. Plaintiffs’ motion to exclude expert evidence
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).
1. P. David Halstead
P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.
• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.
• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.
The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.
Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.
Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.
Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.
Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.
Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.
Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.
2. Irving Scher, Ph.D., P.E
Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.
a. Helmet fit
• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.
• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.
These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.
Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.
Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.
b. Kinematics analysis
• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.
• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.
• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.
The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.
Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.
Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.
Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.
B. K2’s motion for summary judgment
Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.
1. Summary judgment standard
Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).
2. Strict Product liability claim
Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.
There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.
a. Defective design
Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.
i. Unreasonably dangerous defect
Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6
Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).
K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.
K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.
K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.
The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.
K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.
Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.
K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:
Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.
Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.
b. Defective Instructions
Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.
Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.
K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.
3. Negligence claim
Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).
K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.
4. Breach of warranty claim
K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).
Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.
5. Loss of consortium claim
K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.
K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.
C. Additional motions and requests for relief
As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)
But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.
A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.
3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.
Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631
Carmen Elena Monteilh Chavarria, Plaintiff, v. Intergro, Inc., et al., Defendants.
CASE NO. 8:17-cv-2229-T-23AEP
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION
2018 U.S. Dist. LEXIS 117631
July 16, 2018, Decided
July 16, 2018, Filed
COUNSEL: [*1] For Carmen Elena Monteilh Chavarria, Plaintiff: Carlos A. Leyva, LEAD ATTORNEY, Digital Business Law Group, P.A., Palm Harbor, FL; Linda Susan McAleer, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Linda S. McAleer, San Diego, CA.
For Intergro, Inc., Timothy Dolan, Felix Renta, Defendants: Catherine M. DiPaolo, Richard M. Hanchett, LEAD ATTORNEYS, Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, Tampa, FL.
JUDGES: STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
OPINION BY: STEVEN D. MERRYDAY
On September 25, 2017, the plaintiff sued (Doc. 1) the defendants for negligence, for intentional infliction of emotional distress, and for breach of contract. Asserting the same claims, the plaintiff amended (Doc. 15) her complaint on October 25, 2017. On November 8, 2017, the defendants moved (Doc. 19) to dismiss the amended complaint,1 and on April 28, 2018, the plaintiff moved (Doc. 39) — for the first time — for an order determining that Honduran law governs the claims in this action.2
1 “Defendants’ motion to dismiss amended complaint, alternative motion to strike certain allegations and the affidavit of attorney Carlos A. Leyva, and alternative notice of objection to testimony of Carlos A. Leyva.” (Doc. 19)
2 Also, the plaintiff moves “for partial summary judgment as to liability only, pursuant to [the] breach of contract claim.” (Doc. 43 at 1)
By failing to timely assert the claim, a party waives the application of foreign law. Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1257 (11th Cir. 2006); Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (holding that the plaintiff “explicitly submitted to Illinois [not Virginia] law and relied solely on it, and having done so, the district [*2] court was right to apply it to the dispute. . . . The principle of waiver is designed to prohibit this very type of gamesmanship — [the plaintiff] is not entitled to get a free peek at how his dispute will shake out under Illinois law and, when things don’t go his way, ask for a mulligan under the laws of a different jurisdiction.”); Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995) (holding that choice of law is “normally waivable”); Anderson v. McAllister Towing and Transp. Co., 17 F. Supp. 2d 1280, 1286 n.6 (S.D. Ala. 1998) (Volmer, J.) (holding that the defendant waived the right to have Saudi Arabian law applied to a contractual dispute because the defendant failed to give reasonable notice of its intent to assert that foreign law applied). “The failure to give proper notice of the applicability of foreign law does not warrant dismissal . . . . It is more likely that a failure to give reasonable notice will result in a waiver of the applicability of foreign law to the case.” Moore’s Federal Practice, Vol. 9, § 44.1.03 (3d ed. 2016).
In both the complaint and the amended complaint, the plaintiff asserts emphatically (and highlights in bold) that each claim is brought under Florida common law. The plaintiff’s response to the motion to dismiss is based entirely on Florida law. Seven months elapsed between the day the plaintiff sued [*3] and the day the plaintiff moved for “choice of law.” Because the plaintiff failed to give timely notice of the claimed applicability of foreign law, she has waived her right to assert that Honduran law governs her claims.
Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. (Doc. 15 at 4) The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. (Doc. 15 at 4) The plaintiff alleges that both Intergro and Seproma3 “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.” (Doc. 15 at 5)
3 Seproma, a subsidiary of Intergro, is not a party to this action.
After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. (Doc. 15 at 6) Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two [*4] further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye. (Doc. 15 at 6)
To state a claim for negligence, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). The plaintiff alleges that Integro owed her a duty “not to select” the rafting event in which she was injured and a duty to provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.” (Doc. 15 at 8) The defendants argue (1) that the plaintiff fails to allege sufficiently that the defendants knew that the rafting event posed an unreasonable risk of harm and (2) that, even if the plaintiff had alleged a duty of care owed by Intergro to the plaintiff, she fails to allege any individual duty owed by Dolan or Renta.
The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; [*5] that the breach caused her injury; and that she has suffered actual damages as a result of the defendants’ negligence. The plaintiff states a claim for negligence.
Intentional infliction of emotional distress
To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009) The standard for outrageous conduct is distinctly high. Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985) (“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”). Whether a person’s alleged conduct is sufficiently outrageous or intolerable is a matter of law. De La Campa v. Grifols America, Inc., 819 So. 2d 940 (Fla. 3d DCA 2002).
The plaintiff alleges (1) that the “[d]efendants understood that their collective refusal to compensate Plaintiff for work related injurious activities, including lost wages and medical care, would cause emotional anxiety and distress to a single working mother of three children” (Doc. 15 at 7) and (2) that the defendants’ “intentional refusal to pay Plaintiff’s lost [*6] wages, medical expenses, and other benefits as required by Honduran law . . . caused Plaintiff emotional distress” (Doc. 15 at 9). The plaintiff fails to allege a single instance of “outrageous,” “extreme,” and “atrocious” conduct. Count II is dismissed for failing to state a claim.
Breach of contract
The plaintiff sues for breach of contract “pursuant to non-payment of employment termination benefits.” (Doc. 15 at 1) To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009).
The amended complaint fails to identify an unfulfilled contractual obligation. Instead, the plaintiff claims entitlement to payment of benefits under Honduran law but fails to identify the law or the benefits to which she is entitled. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is granted. In amending Count III to provide a more definite statement of the claim against Intergro for breach of contract, the plaintiff must clarify the allegation that “Intergro breached the Contract by failing to pay Plaintiff the benefits that were due under same pursuant to [*7] Honduran law.” (Doc. 15 at 10) Ambiguity exists as to whether Honduran law or the contract governs the obligation to pay, whether Honduran law or the contract governs the amount of the required payment, or to whether and to what extent Honduran law and the contract otherwise control the obligation to pay and the amount of the payment. The amended complaint must clarify the plaintiff’s claim in this respect, among others.
Dolan and Renta
The plaintiff fails to state a claim against either Dolan or Renta. In Count III, the plaintiff alleges that the plaintiff’s “employment with Intergro was controlled by a binding contract” and that Intergro breached the contract “by failing to pay Plaintiff the benefits that were due under same pursuant to Honduran law.” (Doc. 15 at 9-10) But in the prayer for relief, the plaintiff (who purportedly contracted only with Intergro) prays for judgment against all defendants “for the full amount of contractual benefits due under Honduran law.” (Doc. 15 at 10) The complaint lacks an allegation that Dolan and Renta are parties to the contract. Count III fails to state a claim against Dolan and Renta.
Motion to strike
The defendant moves (Doc. 19) under Rule 12(f), Federal Rules of Civil Procedure, to strike [*8] the allegations in paragraphs 7, 8, 14, 31, 32, 35, and 37 of the amended complaint and moves to strike the affidavit of Carlos A. Leyva (Doc. 15-1). Under Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “A motion to strike is a drastic remedy” and “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Augustus v. Board of Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962). “An allegation is ‘impertinent’ or ‘immaterial’ when it is neither responsive nor relevant to the issues involved in the action. . . . ‘Scandalous’ generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Moore’s Federal Practice, Vol. 2, s 12.37 (3d ed. 2016). The defendant fails to identify and describe why the allegations are immaterial, irrelevant, and scandalous, and the plaintiff argues plausibly that the allegations are “related” to the controversy, are material, and are pertinent.
The defendant argues that Carlos Leyva’s affidavit contains allegations that have “no relation to [*9] this controversy and cause prejudice to Defendants because they are inadmissible hearsay.” (Doc. 19 at 12) The plaintiff responds that the “[d]efendants . . . conflate what is required for summary judgment with what is required in the pleadings. . . . The evidentiary burden that Defendants assume . . . does not exist at this stage in the proceedings.” (Doc. 21 at 16) For the reasons stated by the plaintiff, the defendants’ motion to strike Carlos Leyva’s affidavit is denied.
The defendant’s motion (Doc. 19) to dismiss is GRANTED IN PART. Count II is DISMISSED. Count III is DISMISSED against Dolan and Renta. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is GRANTED. The plaintiff must amend Count III to provide a more definite statement of the claim against Intergro for breach of contract.
The defendant’s “alternative motion [Doc. 19] to strike certain allegations and to strike the affidavit of attorney Carlos A. Leyva” is DENIED. The plaintiff’s motion (Doc. 39) for “choice of law” is DENIED. The plaintiff’s motion (Doc. 43) for partial summary judgment on Count III is DENIED.
No later than JULY 27, 2018, the plaintiff must amend the complaint [*10] to comply with this order4 The plaintiff must add no new claim.
4 That is, the plaintiff must (1) remove the claims for intentional infliction of emotional distress and (2) remove the claims against Dolan and Renta for breach of contract. Also, the plaintiff must amend Count III to provide a more definite statement of the claim against Integro for breach of contract.
ORDERED in Tampa, Florida, on July 16, 2018.
/s/ Steven D. Merryday
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE
Isha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)Posted: January 21, 2019
Isha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)
[**1] Isha, Plaintiff, against Tough Mudder Incorporated d/b/a/ Urban Mudder, Defendant. Index Number 512947/2016
SUPREME COURT OF NEW YORK, KINGS COUNTY
2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)
September 21, 2018, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
JUDGES: [*1] DEVIN P. COHEN, Acting Justice, Supreme Court.
OPINION BY: DEVIN P. COHEN
Upon the foregoing papers, defendant’s motion to compel arbitration and plaintiff’s cross-motion for an order denying defendant’s motion and invalidating the Waiver Agreement between the parties, is decided as follows:
Plaintiff brings this action against defendant seeking damages for injuries she sustained when she participated in defendant’s “Urban Mudder” event. Defendant contends that this dispute should be arbitrated pursuant to the contract between the parties. Typically, arbitration clauses in contracts are regularly enforced and encouraged as a matter of public policy (159 MP Corp. v Redbridge Bedford, LLC, 160 AD3d 176, 205, 71 N.Y.S.3d 87 [2d Dept 2018]). Defendant provides a copy of the contract, which states that all disputes between the parties shall be submitted to binding arbitration with the American Arbitration Association.
Plaintiff argues the arbitration contract is invalid pursuant to GBL § 399-c, which prohibits mandatory arbitration in consumer contracts. Defendant contends that the Federal Arbitration Act preempts GBL § 399-c because defendant’s business is involved in interstate commerce (Marino v Salzman, 51 Misc 3d 131[A], 36 N.Y.S.3d 48, 2016 NY Slip Op 50410[U], *1 [App Term, 2d Dept 2016] [**2] ; Ayzenberg v Bronx House Emanuel Campus, Inc. (93 AD3d 607, 608, 941 N.Y.S.2d 106 [1st Dept 2012]). However, defendant provides no evidence from someone with personal knowledge [*2] of this factual claim (cf Marino, 51 Misc 3d 131[A], 36 N.Y.S.3d 48, 2016 NY Slip Op 50410[U], *1 [holding that the FAA preempted GBL § 399-c in that case because an employee of defendant submitted an affidavit wherein he stated that defendant was a multi-state company with business in several states]). Accordingly, defendant has not established that the FAA applies and, as a result, whether the arbitration provision is enforceable here.
Plaintiff further argues that the contract cannot be admitted into evidence pursuant to CPLR 4544 because it involves a consumer transaction and the text of the contract is less than 8-point font. In support of this argument, plaintiff submits the affidavit of Vadim Shtulboym, a paralegal in plaintiff counsel’s office. Mr. Shtulboym states that, based on his work experience, he has determined, with the aid of a scanner and Abobe Acrobat Reader DC, that the contract between the parties is 7-point font. Mr. Shtulboym explains that he came to this conclusion by typing words in 8-point font and 6-point font, and comparing them to the text of the contract, the size of which appeared to be in between the two fonts.
In opposition, defendant submits the affidavit of Johnny Little, the Director of Course and Construction with defendant, who states [*3] that the font used in the contract was 8-point, Times New Roman. Mr. Rosen further states that defendant forwarded a draft of the contract, in Microsoft Word format, to be professionally printed for the event, without any reduction in font size. Accordingly, there is a triable issue of fact as to whether the document is 8-point font.
Finally, plaintiff argues that the waiver of liability clause in her contract with defendant is void because violates N.Y. Gen. Oblig. Law § 5-326, which prohibits contracts between the “owner or operator of [**3] any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” from exempting such owner or operator from “liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment”. Plaintiff does not object to the substance of any other portion of the contract.
Defendant contends that the Urban Mudder event is not a place of amusement or recreation. While the statute does not define these terms, courts have applied them to a range of activities, such as rock climbing (Lee v Brooklyn Boulders, LLC, 156 AD3d 689, 690, 67 N.Y.S.3d 67 [2d Dept 2017]), motocross (Sisino v Is. Motocross of New York, Inc., 41 AD3d 462, 463, 841 N.Y.S.2d 308 [2d Dept 2007]), automobile racing (Knight v Holland, 148 AD3d 1726, 1727, 51 N.Y.S.3d 749 [4th Dept 2017]), sky diving (Nutley v SkyDive the Ranch, 65 AD3d 443, 444, 883 N.Y.S.2d 530 [1st Dept 2009]), spa activities (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 250, 835 N.Y.S.2d 170 [1st Dept 2007]), and horseback riding (Filson v Cold Riv. Trail Rides Inc., 242 AD2d 775, 776, 661 N.Y.S.2d 841 [3d Dept 1997]).
Defendant’s attempt [*4] to distinguish the Urban Mudder event from these activities is unavailing. As an initial matter, defendant counsel’s description of the event holds no evidentiary value, as counsel does not establish his personal knowledge of these events. Secondly, even if this court were to accept counsel’s description, the event’s “rigorous” and “athletic” nature is no different than the other activities listed above. Furthermore, counsel’s assertion that these other applicable activities did not require “physical preparation” is simply baseless. Accordingly, this court finds that the contract’s waiver of negligence liability violates N.Y. Gen. Oblig. Law § 5-326.
[**4] For the foregoing reasons, defendant’s motion to compel arbitration is denied and plaintiff’s cross-motion is granted to the extent that the contract’s waiver of negligence liability is deemed void.
This constitutes the decision and order of the court.
September 21, 2018
/s/ Devin P. Cohen
DEVIN P. COHEN
Acting Justice, Supreme Court