Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

David Alvarez and Elena Alvarez, Plaintiff-Appellants, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe, Defendant. David Alvarez and Elena Alvarez, Plaintiff-Appellees, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellant, Jane Doe, Defendant.

No. 328221, No. 328985

COURT OF APPEALS OF MICHIGAN

2016 Mich. App. LEXIS 2198

November 29, 2016, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY:  [*1] Oakland Circuit Court. LC No. 2014-140282-NO. Oakland Circuit Court. LC No. 2014-140282-NO.

CORE TERMS: harness, climbing, gross negligence, rock, climb, belay, incorrectly, backwards, walked, deposition testimony, loop, red, putting, front, genuine issue, material fact, reasonable minds, precautions, favorable, watched, donned, order granting, rock climbing, grossly negligent, adjacent, facing, matter of law, conduct constituted, ordinary negligence, evidence submitted

JUDGES: Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

OPINION

Per Curiam.

In Docket No. 328221, plaintiffs, David Alvarez and his wife Elena Alvarez, appeal as of right the trial court’s order granting summary disposition in favor of defendant, LTF Club Operations Company, Inc., doing business as Lifetime Fitness Center (Lifetime). In Docket No. 328985, Lifetime appeals as of right the order denying its request for case evaluation sanctions and for taxation of costs. For the reasons stated herein, we reverse the trial court’s order granting defendant’s motion for summary disposition and remand for further proceedings.

This litigation arises from David’s fall from a rock climbing wall at Lifetime’s facility in Novi. Plaintiffs were at Lifetime, where they are members, with their minor daughter to allow her the opportunity to use the rock climbing wall. Neither the plaintiffs, nor their daughter, had previously attempted to use the rock climbing wall. After David signed the requisite forms, Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, [*2]  and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.

Plaintiffs argued that, as an employee of Lifetime, Agredano was grossly negligent1 in failing to ascertain whether David had properly attached his harness and the belay system before permitting him to climb the rock wall or descend. Defendant filed a motion for summary disposition arguing the assumption of risk and waiver of liability provision within the paperwork David signed barred plaintiffs’ claims because Agredano’s asserted conduct constituted only ordinary negligence and not gross negligence. The trial court granted defendant’s motion for summary disposition finding plaintiffs failed to “present any evidence establishing that defendant was grossly negligent in failing to take precautions for plaintiff’s safety.”

1 Plaintiffs had signed a waiver of any negligence based liability.

Plaintiffs assert that the trial court erred in dismissing their claim of gross negligence against Lifetime, arguing a genuine issue of material fact exists regarding whether Agredano [*3]  was grossly negligent. We agree.

The trial court granted summary disposition in accordance with MCR 2.116(C)(7) and (10). This Court reviews “de novo a trial court’s ruling on a motion for summary disposition.” In re Mardigian Estate, 312 Mich App 553, 557; 879 NW2d 313 (2015). Specifically:

When considering a motion for summary disposition under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable to the party opposing the motion. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the evidence submitted might permit inferences contrary to the facts as asserted by the movant. When entertaining a summary disposition motion under Subrule (C)(10), the court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and refrain from making credibility determinations or weighing the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 444-445; 865 NW2d 648 (2014) (quotation marks omitted).]

In addition:

In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other [*4]  documentary evidence and construe them in the plaintiff’s favor. Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of limitations is a question of law that this Court reviews de novo. [Terrace Land Dev Corp v Seeligson & Jordan, 250 Mich App 452, 455; 647 NW2d 524 (2002) (citation omitted).]

To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations omitted). “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010). “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” Id. “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]” Id.

As [*5]  evidence of Agredano’s gross negligence, plaintiffs offered their deposition testimony. In his deposition testimony, David indicated that Agredano provided him with a harness and was present as he put it on and prepared to climb the wall:

  1. Q. And where was [Agredano] when you were placing the harness on yourself?
  2. A. She was in front of us. We were here. She was in front of us.
  3. Q. So she’s staring directly at your as you’re putting the harness on?
  4. A. She was, yeah, in front of us. We were here, and she was — I mean, we could show the picture if you want.
  5. Q. But I want to know if she was facing you when you were putting this harness on?
  6. A. Yes.

* * *

  1. Q. How much time elapsed between the time that you had your harness on and began climbing from the time when your wife began climbing?
  2. A. Okay. So they walked over to the wall, and then, as soon as I put on my harness, I walked over to the wall adjacent to [Agredano], and I watched my wife. She was already up the So whatever time it took for her to get up the eight feet, which is probably a couple minutes. I mean, a minute maybe.
  3. Q. All right. And when you walked over to the wall, was [Agredano] standing to your right?
  4. A. When I walked over to [*6] the wall, she was on my right.
  5. Q. And would you say she was within three or four feet of you?
  6. A. I could touch her. She was right there.

Further, David stated that Agredano spoke to him after he had inadvertently placed the harness on backwards and directed him to a climbing area, but did not warn him that the red loop on his harness should be on his front before he began to climb the wall:

  1. Q. When were you told to hook into something between your legs?
  2. A. Sure. So I had trouble putting on the harness, right? They walked over to the I followed . . . . I was next to — adjacent to [Agredano] . . . . As my wife started to come down [the rock wall], I asked — I asked, where should I go climb? [Agredano] pointed me over to the other adjacent valet or belay.
  3. Q. Belay
  4. A. Belay. Then somewhere between there I asked — or I don’t know if I asked, but she said, Hook it between your legs. . . .

David also stated that Agredano was present in the climbing wall area during the whole incident and watched him climb the rock wall while wearing the harness incorrectly:

  1. Q. And was [Agredano] facing you when you began climbing?
  2. A. She was facing both of us.

* * *

  1. Q. What I want to know is were [sic] you and [*7] your wife on the climbing, and she was behind you looking at the two of you?
  2. A. Yeah. She was looking at both of us.

* * *

  1. Q. Was there any point in time, while you were putting on your harness or after you put on your harness, where [Agredano] was inside the wall, through this door?
  2. A. No.
  3. Q. So she was outside in the climbing wall area with you the entire time?
  4. A. Correct.

In Elena’s deposition testimony, she testified that Agredano also spoke to David after he reached the top of the rock wall, gave him instructions regarding how to descend, and instructed David to let go of the wall despite his incorrectly worn harness:

  1. Q. What happened at that point?
  2. A. And he said — he asked her twice how to go down. And he asked her two times, because I remember, like, why he’s asking her? . . . So then, when he asked her two times, she said, just let go, and it will bring you down, the automatically thing will bring you down. And she said, I think, you know, push, let go. She said, just let go. Just let go. . . .

While Agredano claimed that she was not in the room when David incorrectly donned his harness and ascended the wall, we must consider the evidence in the light most favorable to plaintiffs and [*8]  accept their testimony as true. Terrace Land Dev Corp, 250 Mich App at 455. David and Elena’s deposition testimony was that Agredano was present when David donned his harness and ascended the wall, that she had ample opportunity to determine that David had put his harness on incorrectly, but that she failed to correct his mistake. Further, plaintiffs testified that Agredano watched David climb the wall in an unsafe harness, and directed David to let go of the wall to repel back down to the ground despite the red loop on David’s harness indicating that his harness was on backwards. Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication2 that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness. Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign [*9]  that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” David. Tarlea, 263 Mich App at 90. Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence. Thus, the trial court erred in granting defendant’s motion for summary disposition.

2 Agredano testified that if someone was standing below a rock climber, that person would be readily able to see if a harness was on backwards.

Because we have concluded that the trial court erred in granting summary disposition to defendant, it is unnecessary for us to address in Docket No. 328985 whether the decision to deny the case evaluation award would otherwise have been appropriate if the grant of summary disposition had been proper.

We reverse the order granting defendant’s motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Christopher M. Murray

/s/ Stephen L. Borrello

 

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McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45

McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45

Marcella McGrath f/k/a Marcella Widger v. SNH Development, Inc. and John Doe, an unnamed individual

No. 07-C-0111

SUPERIOR COURT OF NEW HAMPSHIRE, HILLSBOROUGH COUNTY

2008 N.H. Super. LEXIS 45

May 19, 2008, Decided

NOTICE:

THE ORDERS ON THIS SITE ARE TRIAL COURT ORDERS THAT ARE NOT BINDING ON OTHER TRIAL COURT JUSTICES OR MASTERS AND ARE SUBJECT TO APPELLATE REVIEW BY THE NEW HAMPSHIRE SUPREME COURT.

SUBSEQUENT HISTORY: Affirmed by McGrath v. SNH Dev., Inc., 158 N.H. 540, 969 A.2d 392, 2009 N.H. LEXIS 43 (2009)

JUDGES:  [*1] GILLIAN L. ABRAMSON, PRESIDING JUSTICE.

OPINION BY: GILLIAN L. ABRAMSON

OPINION

ORDER

The plaintiff commenced the instant action alleging negligence against the defendants, SNH Development, Inc. (“SNH Development”) and John Doe, an unnamed individual. The defendants now move for summary judgment, and the plaintiff objects.

For purposes of the defendants’ motion for summary judgment, the parties do not appear to dispute the following facts. SNH Development is a subsidiary of Peak Resorts, Inc. and owns and operates the Crotched Mountain Ski Area in Bennington, New Hampshire. On October 23, 2003, the plaintiff signed an application (the “application”) for a season pass to the Crotched Mountain Ski Area. The application provides:

I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the ski area facility, that I freely accept and voluntarily assume all risks of personal injury or death of property damage, release Crotched Mountain its owners and its agents, employees, directors, officers and shareholders from any and all liability for personal injury or property damage  [*2] which results in any way from negligence, conditions on or about the premises, the operations of the ski area including, but not limited to, grooming snow making, ski lift operations, actions or omissions of employees or age the area, or my participation in skiing, accepting myself the full responsibility

Defs.’ Mot. for Summ. J., Ex. B. Moreover, on December 20, 2003, the plaintiff signed a Liability Release Agreement, which provides:

I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the area facility, that I freely accept and voluntarily assume all risks of personal injury or death or property damage, and release Peak Resorts, Inc, all of its subsidiaries, and its agents, employees, directors, officers, shareholders and the manufacturers and distributors of this equipment and the school and group organizers (collective “providers’), from any and all liability for personal injury, death or property damage which results in any way from negligence, conditions on or about the premises, the operation of the area including, but not limited to grooming,  [*3] snowmaking, lift operations, actions or omissions of employees or agents of the areas, or my participating in skiing, snowboarding, blading, accepting myself the full responsibility.

Id. On February 20, 2004, the plaintiff was skiing 1 a trail at the Crotched Mountain Ski Area when an employee of SNH Development drove a snowmobile into the plaintiff’s path, causing a collision.

1 Some of the pleadings state that the plaintiff was skiing, while other’s state that the plaintiff was snowboarding.

The defendants now move for summary judgment, arguing that the plaintiff signed the application and the Liability Release Agreement, both of which are valid, enforceable exculpatory contracts. The plaintiff objects, arguing that the application and the Liability Release Agreement violate public policy and that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim.

In ruling on a motion for summary judgment, the Court “consider[s] the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” White v. Asplundh Tree Expert Co., 151 N.H. 544, 547, 864 A.2d 1101 (2004).  [*4] The Court must grant a motion for summary judgment if its “review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law Id. A fact is material “if it affects the outcome of the litigation under the applicable substantive law.” Palmer v. Nan King Restaurant, 147 N.H. 681, 683, 798 A.2d 583 (2002).

New Hampshire law generally prohibits exculpatory contracts, but the Court will enforce them if; “(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.” Dean v. MacDonald, 147 N.H. 263, 266-267, 786 A.2d 834 (2001). Thus, the Court considers each of these requirements in turn.

Regarding the first requirement, an exculpatory contract violates public policy if a special relationship existed between the parties or if there was some other disparity in bargaining power. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986) (“A defendant seeking to avoid liability must show that the exculpatory agreement does  [*5] not contravene public policy i.e that no special relationship existed between the parties and that there was no other disparity in bargaining power.”).

A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way, RSA 215-C:49, XII (Supp. 2007), and because the Crotched Mountain Ski Area serves the public. Assuming that RSA 215-C:49, XII applies to the operation of a snowmobile on a privately owned ski area, the plaintiff has not offered any legal support for the conclusion that this statute somehow charges the defendants with a duty of public service. Moreover, the fact that the Crotched Mountain Ski Area serves the public is not conclusive. For example, Barnes, involved a negligence claim arising from a collision at an enduro kart racing facility. In Barnes, the New Hampshire Supreme Court noted that the defendant’s served the public but held that the defendant’s were not charged with a duty of public service because  [*6] Endurokart racing is not “affected with a public interest.” Barnes, 128 N.H. at 108. Similarly, skiing is a recreational activity not affected with a public interest, and the Court finds that the defendant’s are not charged with a duty of public service.

The Plaintiff also contends that she was at an obvious disadvantage in bargaining power because all ski areas require skiers to sign releases. The Court disagrees.

This case … does not have any hallmarks of a disparity in bargaining power. The [skiing] service offered by the defendant is not a “matter of practical necessity.” Nor did the defendant in this ease have monopoly control over this service such that the plaintiff could not have gone elsewhere.

Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994) (quoting Barnes, 128 N.H. at 108). 2

2 The Plaintiff also argues that the application and the Liability Release Agreement violate public policy because they relieve the defendant’s from compliance with RSA chapter 215-C, which governs snowmobiles. Assuming that RSA chapter 215-C applies to the operation of a snowmobile on privately owned ski area, the application and the Liability Release Agreement would have no bearing on the enforcement of RSA chapter 215-C.  [*7] See RSA 215-C-32 (Supp.2007) (providing for the enforcement of RSA chapter 215-C).

“Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that reasonable person in his position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107. “The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.” Wright v. Loon Mt. Recreation Corp., 140 N.H. 166, 169, 663 A.2d 1340 (1995). The Court

therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”

Id. (citations omitted) (quoting Barnes, 128 N.H. at 107). The Court “will assess the clarity. the contract by evaluating it as a whole, not by examining  [*8] isolated words and phrases. Id. at 169-170.

The plaintiff does not appear to dispute that she understood the import of the application or the Liability Release Agreement. Rather, the plaintiff argues that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim. Thus, the Court turns to the third requirement.

“[T]he plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement. The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries. They may adopt language to cover, a broad range of accidents….” Barnes, 128 N.H. at 107 (citation omitted). To determine the scope of a release, the Court examines its language, strictly construing it against the defendant. Dean, 147 N.H. at 267.

Thus, in order to effectively release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of  [*9] the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”

Audley, 138 N.H. at 418 (citations omitted) (quoting Barnes, 128 N.H. at 107).

The plaintiff contends that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because neither the application nor the Liability Release Agreement reference snowmobiles. As rioted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.” Defs.’ Mot. for Summ. J., Ex. B. This language clearly states that the defendants are not responsible for the consequences of their negligence.

The Plaintiff also contends that the parties did  [*10] not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because snowmobiles are not an inherent hazard of skiing. The plaintiff relies on Wright. In Wright, the New Hampshire Supreme Court noted:

The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that

Wright, 140 N.H. at 170. Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the  [*11] Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.

Based on the foregoing, the defendant’s motion for summary judgment is GRANTED.

So ORDERED.

 


Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

Emily Johnson, Plaintiff, v. Scott Gibson and Robert Stillson, Defendants.

SC S063188

SUPREME COURT OF OREGON

358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

November 13, 2015, Argued and Submitted

March 3, 2016, Decided

SUBSEQUENT HISTORY: Reconsideration denied by Johnson v. Gibson, 2016 Ore. LEXIS 281 (Or., Apr. 21, 2016)

PRIOR HISTORY:  [***1] US Court of Appeals Ninth Circuit 1335087. On certified questions from the United States Court of Appeals for the Ninth Circuit; certification order dated April 24, 2015; certification accepted June 4, 2015.

Johnson v. Gibson, 783 F.3d 1159, 2015 U.S. App. LEXIS 6551 (9th Cir. Or., 2015)

COUNSEL: Thane W. Tienson, Landye Bennett Blumstein LLP, Portland, argued the cause and filed the brief for plaintiff. With him on the brief was Christine N. Moore.

Harry Auerbach, Chief Deputy City Attorney, Portland, argued the cause and filed the brief for defendants. With him on the brief was Denis M. Vannier, Deputy City Attorney.

Kathryn H. Clarke, Portland, argued the cause and filed the brief for amicus curiae Oregon Trial Lawyers Association. With her on the brief was Shenoa L. Payne, Haglund Kelley LLP, Portland.

Thomas W. McPherson, Mersereau Shannon, LLP, Portland, filed the brief for amici curiae League of Oregon Cities, Association of Oregon Counties, Citycounty Insurance Services, Oregon School Boards Association, Special Districts Association of Oregon, and The International Municipal Lawyers Association.

Janet M. Schroer, Hart Wagner LLP, Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel.

JUDGES: Before Balmer, Chief [***2]  Justice, and Kistler, Walters, Landau, Baldwin, Brewer and Nakamoto, Justices.*

* Linder, J., retired December 31, 2015, and did not participate in the decision of this case.

OPINION BY: WALTERS

OPINION

[**1152]  [*626]   WALTERS, J.

This case is before the court on two certified questions from the United States Court of Appeals for the Ninth Circuit. See ORS 28.200 – 28.255 (providing for certification of certain questions of Oregon law from specified federal courts and appellate courts of other states to Oregon Supreme Court). As framed by the Ninth Circuit, the questions are (1) whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act, ORS 105.672 to 105.700,1 and therefore immune from liability for their negligence; and (2) if such employees are “owner[s]” under the Act, whether the Act, as applied to them, violates the remedy clause of Article I, section 10, of the Oregon Constitution.2 We conclude that the individual employees in this case do not qualify as “owner[s]” under the Act, and that we need not address the second certified question.

1 ORS 105.672(4), which defines “owner” for purposes of the Act, was amended in 2009, and those changes [***3]  went into effect January 1, 2010. Or Laws 2009, ch 532, § 1. Plaintiff alleges that her injuries occurred in July 2009. We therefore assume, as do the parties, that the Ninth Circuit’s questions refer to the version of the statute in place at the time plaintiff’s injuries occurred. That statute is ORS 105.672(4) (2007).

The current version of ORS 105.672(4) provides: “‘Owner’ means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.”

2 The remedy clause provides: “[E]very man  [HN1] shall have remedy by due course of law for injury done him in his person, property, or reputation.” Or Const, Art 1, § 10.

This case arose when plaintiff, who is legally blind, was injured when she stepped into a hole while jogging in a public park in the City of Portland (the City). Plaintiff filed a complaint against the City and defendants Gibson and Stillson. Defendant Gibson had created the hole to fix a malfunctioning sprinkler head; he was a park technician with primary responsibility for maintenance of the park. Defendant Stillson was the maintenance supervisor for all westside parks in the City.

[*627]  Plaintiff filed her [***4]  complaint in federal district court, invoking federal claim and supplemental jurisdiction. Plaintiff alleged, under federal law, that the City had violated Title II of the American’s with Disabilities Act (ADA), 42 USC sections 12131 to 12165, and, under state law, that all three defendants were liable for negligently causing her injuries. The City filed two motions: A motion to substitute itself as the sole defendant, pursuant to the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.302; and a motion for summary judgment.

The district court denied the City’s motion for substitution. Johnson v. City of Portland, CV No 10-117-JO (D Or Feb 10, 2011) (“Johnson I“). The court reasoned that substitution of the City would violate the remedy clause in Article I, section 10, of the Oregon Constitution, because the City was immune from liability under the Public Use of Lands Act. Had the court substituted the City as the sole defendant in the case, the only defendant would have been immune and entitled to dismissal, leaving plaintiff without a remedy for her injury. Id.

The district court granted the City’s motion for summary judgment, in part. The court granted the City summary judgment as to plaintiff’s federal ADA claim, leaving plaintiff’s negligence claim as her only remaining claim. The [***5]  district court declined to retain supplemental jurisdiction over that state law claim and dismissed the case. Id.

Plaintiff then filed a new complaint in federal court invoking diversity jurisdiction. Plaintiff again alleged a state law negligence claim against defendants Gibson and Stillson, and those defendants again filed a motion to substitute the City as the sole defendant under the OTCA. In Johnson II, the district  [**1153]  court agreed with the prior ruling in Johnson I that substitution of the City was not appropriate. Johnson v. Gibson, 918 F Supp 2d 1075, 1082 (D Or 2013). Then, the individual defendants filed a motion for summary judgment, contending that they were immune from liability under the Public Use of Lands Act. Id. at 1083. The district court agreed, reasoning that employees who maintain land qualify as “owner[s]” under that Act, and that defendants Gibson and Stillson were therefore immune from liability.  [*628]  Id. at 1085. The court also held that the Public Use of Lands Act does not violate the remedy clause. Id. at 1088. The court granted defendants’ motion for summary judgment. Id. at 1089. Plaintiff appealed to the United States Court of Appeals for the Ninth Circuit, and the Ninth Circuit certified to this court the two questions now before us.

We begin with the first question [***6]  posed and the text of the Oregon Public Use of Lands Act, which provides, in part:

[HN2] “Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes * * *. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes * * *.”

ORS 105.682(1). “Land” is defined as “all real property, whether publicly or privately owned.” ORS 105.672(3). “Owner” is defined as follows:

“‘Owner’ means the possessor of any interest in any land, including but not limited to possession of a fee title. ‘Owner’ includes a tenant, lessee, occupant or other person in possession of the land.”

ORS 105.672(4) (2007).

From that definition of “owner,” defendants make a three-step argument: First, that the definition of the term “owner” is ambiguous and is not limited to those with a legal interest in the land; second, that, considered in its proper context, the term includes owners’ employees and [***7]  agents; and third, that as City employees, defendants are entitled to recreational immunity.

Defendants’ argument focuses on the second sentence of the definition of “owner.” Defendants recognize that they do not qualify as “owner[s]” under the first sentence of that definition because they do not have legal title to, or a legal right in, the property where plaintiff was injured. However, they contend, the second sentence in the definition  [*629]  is broader, and it includes both persons who have a legal right in property–specifically, “tenant[s]” and “lessee[s]”–and those who do not–specifically, “occupant[s]” and those who are “in possession of the land.” Id. According to defendants, the dictionary definitions of those latter terms demonstrate that “owner[s]” include persons without legal or equitable title to, or interest in, land.

[HN3] A “possessor” is “one that possesses: one that occupies, holds, owns, or controls.” Webster’s Third New Int’l Dictionary 1770 (unabridged ed 2002). A “possessor” is also “one that holds property without title–called also naked possessor; contrasted with owner.” Id. (emphasis in original). “Possession” means “the act or condition of having in or taking into one’s control or holding at one’s disposal”; “actual [***8]  physical control or occupancy of property by one who holds for himself and not as a servant of another without regard to his ownership and who has legal rights to assert interests in the property”; “something owned, occupied, or controlled.” Id. “Occupy” means “to hold possession of”; “to reside in as an owner or tenant.” Id. at 1561. An “occupant” is “one who takes the first possession of something that has no owner”; “one who occupies a particular place or premises”; and “one who has the actual use or possession of something.” Id. 1560.

Like defendants, we surmise, from those definitions, that  [HN4] the terms “occupant” and “person in possession of the land” may include persons without legal or equitable title to, or interest in, the land. But that is not the only lesson we take from those definitions. Like plaintiff, we conclude that those terms describe persons who do more than  [**1154]  take up space on the land. Under those definitions, an “occupant,” or a “person in possession of the land” must have some control over the space, and, given the context in which those terms are used, it is likely that the control that the legislature intended is the ability to decide who may use the space or what use may be made [***9]  of it. The terms “occupant” and “person in possession of the land” are used in the same sentence as the terms “tenant” and “lessee.” ORS 105.672(4) (2007). Tenants and lessees have the ability to decide who may use the space that they control and for what purposes. Under noscitur a sociis, a maxim of statutory construction that  [*630]  tells us that the meaning of an unclear word may be clarified by the meaning of other words used in the same context, it is likely that the legislature intended that “occupant[s]” and “person[s] in possession of the land” have the same type of control as tenants and lessees. See State v. McCullough, 347 Ore. 350, 361, 220 P3d 1182 (2009) (so describing noscitur a sociis). Under that interpretation, only persons with authority to control and exclude from the land qualify as “owner[s]” of the land.

Further support for that interpretation is found in the context in which the term “owner” is used in the Act. The Legislative Assembly enacted  [HN5] the Public Use of Lands Act in 1971 “to encourage owners of land to make their land available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Or Laws 1971, ch 780, § 2, codified as former ORS 105.660 (1971), now codified as amended as ORS 105.676 (emphasis added). The immunities [***10]  provided by the Act apply only if “[t]he owner makes no charge for permission to use the land.” Former ORS 105.688(2)(a) (2007), renumbered as ORS 105.688(3) (2010) (emphasis added). An individual without a right to exclude others from the land or to otherwise control use of the land does not have the decision-making authority that the statute contemplates–the authority to make the land available to the public or to charge for permission to use the land.

Defendants do not point us to any statutory context or legislative history that indicates that the legislature understood the terms “occupant” or “person in possession of the land” in ORS 105.672(4) (2007) to support the unbounded meaning that defendants ascribe to those terms.3 In fact, a case that defendants cite for a different proposition supports  [*631]  plaintiff’s narrow interpretation of those terms. In Elliott v. Rogers Construction, 257 Ore. 421, 433, 479 P2d 753 (1971), the court considered the standard of care that applied to a contractor that was building a road for its principal. In discussing that issue, the court observed that “[c]ases from other jurisdictions and legal writers do not treat a contractor as an occupier of land.” Id. at 432. In that case, the court was not interpreting the definition of “owner” in the Public Use of Lands Act, but its observation [***11]  about the legal meaning of the word “occupant” is consistent with our interpretation of that word as being limited to individuals with a right to control and exclude from the land.

3 Defendants do argue that the main sponsor of the bill that led to the current version of the Act stated that it was “designed to be very broad” and to “guarantee [landowners] that they [would not] be paying out of pocket for * * * allowing their property to be used.” Tape Recording, House Committee on Natural Resources, Subcommittee on Agriculture and Forestry, HB 2296, Jan 30, 1995, Tape 4, Side A (statement of Rep Kevin Mannix). However, we do not find that general statement of purpose to be of assistance in determining the meaning of defined terms in the statute. See State v. Gaines, 346 Ore. 160, 171, 206 P3d 1042 (2009) (“[I]t is not the intent of the individual legislators that governs, but the intent of the legislature as formally enacted into law[.]”).

In this case, defendants do not argue that they had a right to exclude others from the land or to otherwise control the use of the land. Rather, they argue that the definition of “owner” is so ambiguous that it requires us to look beyond the words of the definition to the context surrounding ORS 105.682, particularly the [***12]  pre-existing common law. See Fresk v. Kraemer, 337 Ore. 513, 520-21, 99 P3d 282 (2004) (context includes pre-existing common law). Defendants contend that an examination of that pre-existing common law shows that the legislature must have intended “owner” to include persons who are employed  [**1155]  by, or are agents of, persons who are more classically denominated as owners.

Defendants argue that where land and property are concerned, the common law rule has long been that employees and agents have the same privileges and immunities as their principals. Defendants contend that, insofar as the legislature enacted and amended the Act in the context of that common law rule, it intended that that rule apply. Consequently, defendants assert, the legislature was not required to say explicitly what the common law already provides.

For the common law rule on which they rely, defendants point to two Oregon cases–Herzog v. Mittleman, 155 Ore. 624, 632, 65 P2d 384 (1937); and Elliott, 257 Ore. at 432-33. In the first of those cases, Herzog, the court examined a guest passenger statute that provided that a guest in a vehicle would have no cause of action against the owner or operator for damages unless the accident was “intentional on the  [*632]  part of [the] owner or operator or caused by his gross negligence or intoxication or his reckless disregard [***13]  of the rights of others.” Id. at 628. The question presented was whether a vehicle owner’s guest, who was operating the vehicle in question at the owner’s invitation, would be protected by the same rule on the theory that he was acting as the owner’s agent while driving the vehicle. The court looked to the Restatement (First) of Agency (1933) for assistance and began with section 343, which provides:

“An agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal, except where he is exercising a privilege of the principal, or a privilege held by him for the protection of the principal’s interest.”

Id. at 631 (internal quotation marks omitted). The court also looked to section 347 of the Restatement, which provides: “An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal.” Id. (internal quotation marks omitted). Finally, the court quoted comment a to that section:

“a. Persons may have a personal immunity from liability with respect to all persons and for all acts, as in the case of a sovereign, or for some acts, as in the case of an insane person, or as to some persons as in the [***14]  case of a husband to a wife. * * * Unlike certain privileges such immunities cannot be delegated. On the other hand where an immunity exists in order to more adequately protect the interests of a person in relation to his property, the agent may have the principal’s immunity. Thus, the servant of a landowner while acting in the scope of his employment is under no greater duties to unseen trespassers than is the landowner[.]”

Id. at 631-32 (internal quotation marks omitted) (omission in original).

Reasoning from those provisions, the court explained that although “it is well settled that an agent who violates a duty which he owes to a third person is answerable for the consequences thereof,” if the agent is “acting within the authority, and pursuant to the direction of the principal, the agent is entitled to the same immunities as the principal would be had the principal done the same act under the  [*633]  same circumstances and such immunities were not personal to the principal.” Id. at 632. Applying that legal authority to the facts at hand, the court concluded that the standard of care set out in the statute was not personal to the principal–the car owner–but that it also extended to the agent–a guest that the owner [***15]  had authorized to drive the car. Id. at 633. The court further concluded that the plaintiff could not recover from the defendant-agent without a showing that the defendant-agent was grossly negligent. Id.

In the second of the Oregon cases that defendants cite, Elliott, the court considered whether a contractor working on a landowner’s property had the same limited duty of care to trespassers and licensees as did the landowner. 257 Ore. at 431-33. In that case, an employee of a construction company that was building a road for the State Highway Department accidentally injured a pedestrian who was crossing a portion of the road that had not yet been opened to the public. Id. at 424. The  [**1156]  court explained that, “[b]eing ‘clothed with the rights of the owner,’ [the construction company] was only under a duty to the plaintiff’s decedent to abstain from inflicting injury willfully or by active negligence.” Id. at 433. Because the plaintiff had alleged that the company’s employee had acted with wanton misconduct, however, the court held that the lawsuit could proceed. Id. at 434-35. Thus, without discussing the issues in the same terms used in the Restatement (First) of Agency, the court implicitly concluded that the standard of care applicable to the landowner [***16]  was not personal to the landowner, but that it also extended to the landowner’s agent.

In this case, defendants’ reliance on Herzog and Elliott is misplaced. Defendants draw general conclusions from the results in those cases without recognizing the distinction that is explicit in Herzog and implicit in Elliott–that is, the distinction between immunities that are personal to the principal and those that may extend to a principal’s agent. Immunities provided to a principal may, but do not always, extend to the principal’s agents. That is clear not only from the comment to the Restatement quoted above, but also from a line of Oregon cases to which plaintiff calls our attention. In those cases, this court considered whether the  [*634]  sovereign immunity of governmental landowners precluding their liability for defective conditions on their streets extends to agents responsible for the repair of those streets. The first case in which the court contemplated that issue was Mattson v. Astoria, 39 Ore. 577, 65 P 1066 (1901).

In Mattson, the plaintiff was injured as a result of the city’s failure to keep a public street in repair and suitable for travel. Id. at 578. The plaintiff challenged a clause of the city charter that exempted the city and members of [***17]  its council from liability for such failure. Id. The court said the following:

“That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair, is unquestioned. * * * But in such case the injured party is not wholly without remedy. He may proceed personally against the officers to whom the charter delegates the duty of keeping the streets in repair, and from whose negligence the injury resulted.”

Id. at 579. Since Mattson, the court has consistently recognized that the liability of a local government as landowner is distinct from the liability of employees and agents of the government. For instance, in Gearin v. Marion County, 110 Ore. 390, 396-97, 223 P 929 (1924), the court explained:

“The constitutional guaranty that ‘every man shall have remedy by due course of law for injury done him in his person, property or reputation’ we think is self-executing and operates without the aid of any legislative act or provision. * * * It has, however, no application to an action sounding in tort when brought against the state or one of the counties of the state. In strict law neither the state nor a county is capable of committing a tort or lawfully authorizing one to be [***18]  committed. Counties, as well as the state, act through their public officials and duly authorized agents. The officers, agents, servants and employees of the state or a county, while in the discharge of their duties, can and sometimes do commit torts, but no lawful authorization or legal justification can be found for the commission of a tort by any such officer, agent, servant or employee. When a tort is thus committed, the person committing it is personally liable for the injury resulting therefrom. The wrongful act, however, is the act of the wrongdoer and not  [*635]  the act of the state or county in whose service the wrong-doer is then engaged. For the damages occasioned by the wrong thus committed it is within the power of the legislature to impute liability against the state or the county in whose service the wrongdoer is then engaged, or to exempt the state or county from such liability, but in either event the wrongdoer is himself personally responsible. It is the remedy against the wrongdoer himself and not the remedy which may or may not be imposed by statute against the state or county for the torts of its officers or agents  [**1157]  to which the constitutional guarant[y] applies.”

See also Rankin v. Buckman, et al., 9 Ore. 253, 259-63 (1881) (city [***19]  employees liable even when city is not).

From those cases, it appears that whether a principal’s immunity is personal to the principal or may extend to an agent is a matter of legislative choice subject to constitutional bounds. We presume that the legislature was aware of that existing law. Blachana, LLC v. Bureau of Labor and Industries, 354 Ore. 676, 691, 318 P3d 735 (2014). In addition, the Restatement (Second) of Agency section 347(1) (1958), which had been published by the American Law Institute when the Legislative Assembly enacted the Oregon Public Use of Lands Act in 1971, is in accord. It provides that “[a]n agent does not have the immunities of his principal although acting at the direction of the principal.” Id. Restatement section 347 comment a clarifies: “Immunities exist because of an overriding public policy which serves to protect an admitted wrongdoer from civil liability. They are strictly personal to the individual and cannot be shared.” Subject to constitutional limitations, the legislature must determine as a matter of public policy how broadly to extend immunities.

Consequently, we conclude that when the Legislative Assembly enacted the Public Use of Lands Act, legislators would not necessarily have assumed that granting immunity to landowners would also grant immunity to their employees and agents. The legal principles that [***20]  the court had previously applied, as well as the common law rules reflected in the restatements, recognized that the grant of immunity to a principal, particularly to a governmental principal, would not necessarily extend to the employees and agents of the  [*636]  principal. Whether a court would imply such an extension could depend, for instance, on whether the court considered the grant of immunity personal to the principal, or whether extension of immunity to an agent would eliminate a remedy that the Oregon Constitution requires.

In this case, in deciding whether to imply an extension of the immunity granted to “owner[s]” of land to their employees and agents, we first consider the statute’s text. Significantly, that text indicates that the legislature intended to extend the immunity of those who hold legal title to land to some others who stand in their stead–the owners of other lesser interests in land, including tenants and lessees, and those who qualify as “occupant[s]” or “person[s] in possession” of the land. The text does not, however, disclose a legislative intent to extend the immunity of owners to additional persons who stand in their stead, such as employees and non-employee agents.

Second, we look to the [***21]  statute’s context and legislative history and note that, when it was originally enacted in 1971, the Act was supported by owners of forestland who wished to open their lands to the public for recreational uses such as hunting and fishing. Testimony, Senate Committee on State and Federal Affairs, SB 294, March 1, 1971 (written statement of Sam Taylor, a proponent of the bill). When originally enacted, the Act provided that “[a]n owner of land owes no duty of care to keep the land safe for entry or use by others for any recreational purpose or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering thereon for any such purpose.” Or Laws 1971, ch 780, § 3. Thus, it appears that the legislature’s original intent was to relieve those who control the use of their land from responsibility to take affirmative steps to make their property safe for use by others; the legislature did not express an intent to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners who commit negligent acts from responsibility for injuries caused by such acts.

The legislature amended the Act in 1995 to make it expressly [***22]  applicable to public landowners. Or Laws 1995, ch 456, § 1. However, neither that change nor other changes  [*637]  in the wording of the statute disclose an intent to change the purpose of the statute or to benefit additional classes of persons. Importantly, the legislature did not materially change the definition of owner in 1995. The 1971 Act provided that an “owner” is “the possessor of a fee title interest in any land, a tenant, lessee, occupant or other person in  [**1158]  possession of the land.” Or Laws 1971, ch 780, § 1. In 1995, the legislature broke the definition into two sentences and changed the phrase in the first sentence from “possessor of a fee title interest in any land” to “possessor of any interest in any land.” Or Laws 1995, ch 456, § 1. However, the legislature did not change the categories of persons to whom it granted immunity; in 1995, the legislature exempted the same persons from liability that it had exempted in 1971. When the legislature made the Public Use of Lands Act expressly applicable to public landowners in 1995, it did not demonstrate an intent to broaden the Act to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners [***23]  who commit negligent acts from responsibility for injuries caused by such acts.

Defendants argue, however, that other statutory context points in that direction. Defendants call our attention to the fact that just four years earlier, in 1991, the legislature had amended the OTCA to provide that a claim against a public body is the sole remedy for the torts committed by employees of that public body. Or Laws 1991, ch 861, § 1. Defendants contend that, in light of that amendment, the Public Use of Lands Act must be read to shield governmental employees and agents; otherwise, the immunity it grants to governmental landowners would mean nothing. We disagree. The Public Use of Lands Act applies not only to public landowners, but also to private landowners. Just as it did before the amendment of the OTCA, the Public Use of Lands Act protects all “owner[s]” from liability in their capacity as “owner[s].” Just like private owners, public owners are exempt from liability for their own acts. The fact that public owners are not, in addition, exempt from liability for the acts of their employees or agents does not make the immunity granted by the Public Use of Lands Act illusory. The fact that public owners, like [***24]  private owners, are not shielded from liability if they employ non-owners who cause injury to  [*638]  others in the negligent performance of their duties does not mean that the Public Use of Lands Act has no purpose.

The legislature knows how to extend immunity to governmental employees and agents when it chooses to do so. See ORS 368.031 (immunizing counties and their officers, employees, or agents for failure to improve or keep in repair local access roads); ORS 453.912 (immunizing the state and local government and their officers, agents and employees for loss or injury resulting from the presence of any chemical or controlled substance at a site used to manufacture illegal drugs); ORS 475.465 (immunizing the state, DEQ, EQC, and their officers, employees, and agents from liability to a person possessing chemicals at alleged illegal drug manufacturing site).4 The legislature did not make that express choice in the Public Use of Lands Act. Should the legislature wish to extend the immunity provided to “owner[s]” to governmental employees and agents, it is free to do so, within constitutional bounds. However, we are unwilling to insert into the definition of “owner” in ORS 105.672(4) (2007) terms that the legislature did not include. See ORS 174.010 (office [***25]  of judge is to ascertain what is contained in statute, not to insert what was omitted or to omit what was inserted).

4 Another example, although enacted after the Public Use of Lands Act, is a 2011 statute that grants immunity relating to public trails. ORS 105.668(2) immunizes a “city with a population of 500,000 or more” and its “officers, employees, or agents” from liability for injury or damage resulting from the use of a trail or structures in a public easement or an unimproved right of way.

We answer the Ninth Circuit’s first certified question as follows:  [HN6] Individual employees responsible for repairing, maintaining, and operating improvements on Cityowned recreational land made available to the public for recreational purposes are not “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act. They are therefore not immune from liability for their negligence. We do not reach the second certified question concerning Article I, section 10, of the Oregon Constitution.

The certified questions are answered.

 


Barnes and a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

Barnes & a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

John E. Barnes & a. v. New Hampshire Karting Association, Inc. & a.

No. 85-204

Supreme Court of New Hampshire

128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

May 12, 1986

COUNSEL: David J. KillKelley, of Laconia, by brief and orally, for the plaintiffs.

Sulloway Hollis & Soden, of Concord (Edward M. Kaplan and Robert J. Lanney on the brief, and Mr. Kaplan orally), for the defendants.

JUDGES: King, C.J.  All concurred.

OPINION BY: KING

OPINION

[*104]   [**152]  The plaintiffs, John E. and Virginia A. Barnes, sued the New Hampshire Karting Association (NHKA), David E. Whitesell, Midway Raceway, Inc. d/b/a Bryar Motorsport Park (Bryar), the World Karting Association (WKA) and International Insurance Company (International) for damages arising from injuries sustained by John Barnes (Barnes, or the plaintiff) in an Enduro kart collision at Bryar in 1981.  Defendants Whitesell, NHKA, WKA and Bryar moved for summary judgment, claiming that the release executed by Barnes barred him from seeking recovery.  Following a hearing, the Master (Louie C. Elliott, Jr., Esq.) recommended that the defendants’ motion for summary judgment be granted as to all counts asserted by John Barnes against Whitesell, NHKA, WKA and Bryar.  The master recommended denial of the motion for summary judgment as to the [***2]  claims asserted by Virginia Barnes and ruled that the release did not bar claims against International.  The Superior Court (DiClerico, J.) approved the master’s recommendations.  We affirm.

On August 29, 1981, before entering the pit area at the Bryar Motorsport Park, John Barnes signed a “pit pass” containing the release at issue.  The pass comprised three parts; the participant was given the top portion, which stated “THE HOLDER ACKNOWLEDGES SIGNING WAIVER & RELEASE FROM LIABILITY BEFORE ENTERING TRACK AREA.” The middle section, which each participant was required to sign in order to receive a number for the race, provided:

“RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT

IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to, the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to  [*105]  any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED [***3]  . . .

  1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT [**153] TO SUE . . . from all liability to the undersigned . . . for any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releases [sic] or otherwise while the undersigned is in or upon the restricted area, and/or competing, officiating in, observing, working for, or for any purpose participating in the event;

. . .

  1. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.

EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage.  . . .

THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements of inducements [sic]  [***4]  apart from the foregoing written agreement have been made.”

The master found that Barnes did not read the release portion before signing the pit pass on this occasion or on the previous occasions he had raced at the track. Nonetheless, Barnes admitted that he had read the top portion and understood that the document he was signing was “[s]ome sort of waiver or release.”

Barnes proceeded to take a practice run.  As he rounded a blind turn, his kart collided with a disabled kart on the track. No flagman was present to warn drivers of hazards out of view beyond that turn.  John Barnes and his wife, Virginia, sued the defendants for injuries and loss of consortium, respectively, alleging liability for ordinary and gross negligence.

[*106]  The question presented for review is whether the plaintiff’s causes of action are barred by the release and waiver of liability and indemnity agreement he signed.  Barnes contends that the release does not bar his claims because it violates public policy, is ambiguous, and does not apply to risks not inherent in the sport, which were not within the contemplation of the parties.  He further argues that the release does not cover gross negligence,  [***5]  and that it is void because it involves an illegal tying arrangement.

[HN1] Exculpatory agreements call into conflict two tenets of the law.  First, a party should be liable for the consequences of the negligent breach of a duty owed another.  As this court stated in a recent case involving an amusement ride accident, the owner of a place of public amusement “must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent individual.” Siciliano v. Capitol City Shows, Inc., 124 N.H. 719, 730, 475 A.2d 19, 25 (1984). Failure to do so will result in liability for injuries proximately caused by the breach of duty.

Contraposed against this basic rule of tort law is the principle that,  [HN2] as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs.  ABA Special Committee on the Tort Liability System, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law § 5-27 (Nov. 1984); Morrow v. Auto Championship Racing Ass’n, Inc., 8 Ill. App. 3d 682, 685, 291 N.E.2d 30, 32 (1972). Under this rule, parties may bargain [***6]  for various levels of risk and benefit as they see fit.  Thus, a plaintiff may agree in advance that the defendant has no legal duty toward him and thereby assume the risk of injury arising from the defendant’s conduct.  See W. Keeton, D. Dobbs, R. Keeton, D. Owen,  [**154]  Prosser and Keeton on the Law of Torts § 68, at 480-81 (5th ed. 1984) (hereinafter cited as Prosser & Keeton).

In New Hampshire, exculpatory contracts are generally prohibited.   [HN3] A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power. Where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service, the defendant cannot by contract rid itself of its obligation of reasonable care.  Restatement (Second) of Torts § 496B, comment g (1965); Restatement of Contracts § 575 (1932); see Wessman v. Railroad, 84 N.H. 475, 152 A. 476 (1930).

[*107]  Courts have refused to uphold such agreements because one party is at an obvious disadvantage in bargaining power. Prosser [***7]  & Keeton, supra § 68, at 482.

“The disparity in bargaining power may arise from the defendant’s monopoly of a particular field of service, from the generality of use of contract clauses insisting upon assumption of risk by all those engaged in such a field, so that the plaintiff has no alternative possibility of obtaining the service without the clause; or it may arise from the exigencies of the needs of the plaintiff himself, which leave him no reasonable alternative to the acceptance of the offered terms.”

Restatement (Second) of Torts § 496B, comment j (1965).  Cf.  Cailler v. Humble Oil & Refining Co., 117 N.H. 915, 919, 379 A.2d 1253, 1256 (1977). Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract; accordingly, courts refuse to enforce the agreement.  See Shaer Shoe Corporation v. Granite State Alarm, Inc., 110 N.H. 132, 135, 262 A.2d 285, 287 (1970).

[HN4] Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position [***8]  would have known of the exculpatory provision.  Furthermore, the plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement.  Arnold v. Shawano County Agr. Society, 106 Wis. 2d 464, 470, 317 N.W.2d 161, 164 (1982), aff’d, 111 Wis. 2d 203, 330 N.W.2d 773 (1983). The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries.  They may adopt language to cover a broad range of accidents, as they did in this case by specifying injuries involving negligence on the part of the defendants.

Nonetheless, since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.  Prosser & Keeton, supra § 68, at 483-84.  As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.  Cf.  Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 623, 419 A.2d 1111, 1113 (1980).

[*108]  As a preliminary [***9]  matter, we note that the plaintiff’s failure to read the entire release does not preclude enforcement of the agreement.  Barnes testified that he was in a line of people waiting to pay money and obtain numbers for the race and that the workers wanted to “get [them] on [their] way.” There was no evidence, however, that Barnes was denied the opportunity to read the body of the release.  “[H]aving failed to avail himself of that opportunity, yet gaining the admission to which his signature was a condition precedent, he cannot now complain that he had no notice of the import of the paper . . . he signed.” Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 550, 209 N.E.2d 329, 332 (1965).

[**155]  With these principles in mind, we now consider whether the release bars the plaintiff’s claims in this case.  The first question is whether the release is contrary to public policy. The defendants do not fall within any of the commonly-recognized classes of persons charged with a duty of public service. The record indicates that the 1981 Enduro kart races at Bryar were organized by the NHKA, which is associated with the WKA and which manages its races in accordance with WKA [***10]  rules and regulations.  Although the defendants serve a segment of the public, we cannot say that Enduro kart racing is affected with a public interest.  Provision of racing facilities is not a service of great importance to the public, nor is racing a matter of practical necessity.  Winterstein v. Wilcom, 16 Md. App. 130, 138, 293 A.2d 821, 825 (1972).

Moreover, there was no substantial disparity in bargaining power among the parties, despite the fact that Barnes was required to sign the release in order to use the racetrack. The plaintiff was under no physical or economic compulsion to sign the release.  Since the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength over Barnes or others who sought to participate in Enduro kart racing. Cailler, 117 N.H. at 919, 379 A.2d at 1256; Schlessman v. Henson, 83 Ill. 2d 82, 86-87, 413 N.E.2d 1252, 1254 (1980). Barnes wished to compete and voluntarily agreed not to hold others liable for his injuries.  Hence, we conclude that the release was not barred by public policy and may be upheld.

The plaintiff cites a number of cases from other jurisdictions that hold on public policy grounds [***11]  that an exculpatory agreement does not release defendants from liability for gross negligence. These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. “[T]he doctrine of definitive degrees of negligence is not recognized as a part of our common law.  . . .” Lee v. Chamberlin, 84 N.H. 182, 188,  [*109]  148 A. 466, 469 (1929). The plaintiff advances no reasons for abandoning this rule and we decline to create an exception to allow him to pursue his claims of gross negligence.

We now examine the language of the release to determine the extent of its coverage.  Barnes contends that the accident did not occur in a “restricted area” because, although he was on the racing surface, the area did not become restricted until numbers were given and racing had begun, and he was merely taking a practice lap at the time of the accident.  In interpreting this contract, we will give language used by the parties its common meaning, Murphy v. Doll-Mar, Inc., 120 N.H. 610, 611-12, 419 A.2d 1106, 1108 (1980), and will give the contract itself the meaning that would be attached to it by a reasonable person.  [***12]  Kilroe v. Troast, 117 N.H. 598, 601, 376 A.2d 131, 133 (1977).

The first paragraph of the release states that the release is given “IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA . . . or being permitted to compete . . . or for any purpose participate in any way in the event . . . .” The agreement defines “restricted area” as including “the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place.” Finally, the agreement states that the defendants are released “from all liability to the undersigned . . . whether caused by the negligence of the releases [sic] or otherwise while the undersigned is in or upon the restricted area, and/or competing . . . or for any purpose participating in the event.”

We find that participation in practice laps on the racing surface comes within the terms of the release.  The restricted areas are defined in terms of physical spaces, not in terms of function, and the reference to “enter[ing] for any purpose” contemplates that the racing surface is a restricted area [***13]   [**156]  during practice runs and during the actual race.  Although the plaintiff testified that he had practiced on occasion without signing a release, he signed the release prior to taking a practice lap on the day in question.  One can contemplate that racers are exposed to a variety of hazards while in the racing arena regardless of whether the actual race is taking place.  We believe that the practice run taken by Barnes in preparation for the race later that day may reasonably be construed as part of “participat[ion] in the event.” We therefore uphold the master’s conclusion that the language of the agreement was not ambiguous and that the release applied to practice laps.

[*110]  Barnes contends that the release is unenforceable because it involves an illegal tying arrangement. He asserts that, in violation of RSA 417:4, XIII, the pit pass and certain insurance coverage were offered at a single price, without an option to take one “product” and not the other.   [HN5] RSA 417:4, XIII provides that it is an unfair method of competition and an unfair and deceptive act and practice in the business of insurance to:

“Arrang[e] or participat[e] in any plan to offer [***14]  or effect in this state as an inducement to the purchase or rental by the public of any property or services, any insurance for which there is no separate charge to the insured.  . . .”

Although it appears that no separate charge was made for the insurance, we find that the insurance was not offered as an inducement to the purchase of the pit pass or the use of the Bryar Motorsport Park.

Affirmed.

 


Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Jason C. Marsh and Rhonda Marsh, Appellant-Plaintiffs, vs. Kirk Dixon, Dyna Soar Aerobatics, Inc., Appellee-Defendants.

No. 49A05-9803-CV-146

COURT OF APPEALS OF INDIANA, FIFTH DISTRICT

707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

March 12, 1999, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Richard H. Huston, Judge. Cause No. 49D10-9610-CT-1378.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: For APPELLANT: JAMES F. LUDLOW, Indianapolis, Indiana.

For APPELLEE: MICHAEL A. ASPY, Landau, Omahana & Kopka, Carmel, Indiana.

JUDGES: ROBB, Judge. BAKER, J., and GARRARD, J., concur.

OPINION BY: ROBB

OPINION

[*999] OPINION

ROBB, Judge

Case Summary

Appellants-Plaintiffs, Jason C. Marsh and Rhonda Marsh (collectively referred to as “Marsh”), appeal the trial court’s order granting summary judgment in favor of Appellees, Kirk Dixon and Dyna Soar Aerobatics, Inc. (collectively referred to as “Dyna Soar”) on Marsh’s gross negligence and products liability claim. We affirm in part and reverse in part.

Issues

Marsh raises two issues for our review which we restate as:

I. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the release signed by Marsh was valid; and

II. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the facts of this case do not support a products liability claim.

Facts and Procedural [**2] History

The facts most favorable to the judgment show that on October 9, 1994, Marsh decided to ride in a wind tunnel (“Dyna Soar Machine”) constructed by Kirk Dixon (“Dixon”) for Dyna Soar Aerobatics, Inc. Dixon is the sole officer of this company. The Dyna Soar Ride simulates the experience of free-fall by projecting columns of air through a cable trampoline upon which patrons of the ride levitate. Marsh signed a release which discharged Dyna Soar, its director, and its employees from liability in the event of an accident. While on the Dyna Soar ride, Marsh fell off of a column of air and fractured his ankle. Marsh sued Dyna Soar, bringing both a negligence claim and a products liability claim. The trial court entered summary judgment in favor of Dyna Soar finding that “the facts do not support a products liability claim or a misrepresentation claim.” (R. 159). This appeal ensued.

Discussion and Decision

Before we reach Marsh’s first issue, we note that Dyna Soar argues in their brief that Marsh waives the issue regarding the validity of the release for two reasons. First, Dyna Soar argues that Marsh failed to make a negligence claim in his original complaint. In [**3] his original complaint, Marsh filed a claim under a gross negligence theory. Second, Marsh failed to raise the same issue in his Motion to Correct Errors.

First, we find that Dyna Soar has waived their argument regarding the fact that Marsh made a gross negligence claim rather than a negligence claim. In their brief, they cite no cases and outline no argument developing this position. [HN1] Ind. Appellate Rule 8.3 requires Dyna Soar to support each contention with an argument, including citations to the authorities, statutes, and record for support. App.R. 8.3(A)(7); Burnett v. Cincinnati Ins. Co., 690 N.E.2d 747, 749 (Ind. Ct. App. 1998). Failure of a party to [*1000] present a cogent argument in his or her brief is considered a waiver of that issue. Id.

Second, we conclude that a party does not waive their right to appeal a claim by omitting the same from its Motion to Correct Errors. Marsh raised two issues in its Motion to Correct Errors. He argued that he presented sufficient evidence to create a genuine issue of material fact as to whether Dyna Soar was grossly negligent, and he argued that he had a viable products liability claim. He did not raise the issue of whether the release [**4] was valid. Indiana Trial Rule 59(A) provides that only two issues must be addressed in a Motion to Correct Errors before they may be appealed to this court: newly discovered material evidence and claims that a jury verdict is excessive or inadequate. T.R. 59(A)(1) and (2). The trial rule states that any other issues that are “appropriately preserved during trial may be initially addressed in the appellate brief.” Id. Trial Rule 59(D) states that a Motion to Correct Errors “need only address those errors found in Trial Rule 59(A)(1) and (2). Id. Based on the plain language of Trial Rule 59, therefore, we conclude that [HN2] a party does not waive its right to appeal a trial court’s decision if it fails to raise an issue in its Motion to Correct Errors which was properly preserved at trial. Dyna Soar’s claims to the contrary are based on cases referring to Trial Rule 59 before it was amended. Accordingly, we conclude that the following issue is properly before this court.

I.

Marsh argues that the trial court erred when it entered summary judgment on his negligence claim. In particular, he argues that the release he signed exculpating Dyna Soar was not sufficient to release [**5] Dyna Soar for its own negligence. We agree.

[HN3] It is well settled in Indiana that exculpatory agreements are not against public policy. Powell v. American Health Fitness Center, 694 N.E.2d 757, 760 (Ind. Ct. App. 1998). Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.” 694 N.E.2d at 761. In Powell, the clause at issue stated that Powell released the defendant “from ‘any damages’ and placed the responsibility on Powell for ‘any injuries, damages or losses.” Id. The Powell court concluded:

As a matter of law, the exculpatory clause did not release [the defendant] from liability resulting from injuries she sustained while on its premises that were caused by its alleged negligence. Therefore, the exculpatory clause is void to the extent it purported to release [the defendant] from [**6] liability caused by its own negligence.

694 N.E.2d at 761-62 (emphasis added). This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” Indiana State Highway Commission v. Thomas, 169 Ind. App. 13, 346 N.E.2d 252, 260 (Ind. Ct. App. 1976) (emphasis in original). We note, however, that [HN4] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. See Powell, 694 N.E.2d at 761-62. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. See 694 N.E.2d at 761.

In this case, we are presented with a similar exculpatory clause as in Powell. The release states in pertinent part:

I hereby fully and forever discharge and release [**7] . . . Dyna-Soar Aerobatics, Inc. and all of the partners, directors, officers, employees, and agents for the aforementioned companies from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of any damages, [*1001] both in law and in equity, in any way resulting from personal injuries, conscious suffering, death or property damage sustained while flying Dyna-Soar.

(R. 275). Obviously, the release fails to specifically and explicitly refer to Dyna Soar’s own negligence. The injury sustained by Marsh was not allegedly derived from a risk which was inherent in the nature of the ride. Dixon instructed Marsh that he would only levitate three to four feet from the ground. When the ride started, however, Marsh was allegedly shot fifteen feet in the air and subsequently dropped to the ground. Such a risk is not inherent in the nature of a wind tunnel ride. Thus, if, indeed, the accident occurred as Marsh describes, the injury must have resulted from the negligence of Dyna-Soar. We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this [**8] exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

Dyna Soar argues that the Powell decision should not be applied retroactively. In support of this argument, Dyna Soar cites Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc., 458 N.E.2d 291 (Ind. Ct. App. 1984). In Sink, the court held that ” [HN5] pronouncements of common law made in rendering judicial opinions of civil cases have retroactive effect unless such pronouncements impair contracts made or vested rights acquired in reliance on an earlier decision.” Id. at 295 (emphasis added). Dyna Soar argues that Powell changed the common law, and therefore, it should not apply to exculpatory agreements made prior to said decision. We disagree. Before the Powell decision, Indiana courts had never decided whether an exculpatory clause required specific language. In fact, in Powell, this court was careful to distinguish other cases which have upheld exculpatory clauses similar to the clause used by Dyna Soar:

Although [**9] we have upheld exculpatory clauses which have used similar language, those cases can be distinguished. In Shumate [v. Lycan, 675 N.E.2d 749 (Ind.Ct.App.1997), trans. denied] and Terry v. Indiana State University, 666 N.E.2d 87 (Ind.Ct.App.1996), the nonspecificity of the language in the exculpatory clauses was not put at issue nor addressed. In Marshall [v. Blue Springs Corp., 641 N.E.2d 92 (Ind.Ct.App.1994)], the focus of the appeal was that there was a genuine issue of material fact as to whether the releases were signed “willingly” or under economic or other compulsion. The nonspecificity of the language used to effect release for the defendant’s own negligence was not presented as an issue nor addressed. In LaFrenz [v. Lake Cty. Fair Bd., 172 Ind. App. 389, 360 N.E.2d 605 (1977)], we noted “the form and language of the agreement explicitly refers to the appellees’ [party released] negligence.” Therefore, had the issue been raised, the language contained the specific and explicit reference to negligence we now hold to be necessary.

Powell, 694 N.E.2d at 762 (citations omitted). From the language of the Powell decision itself, we [**10] conclude that Powell did not change Indiana common law. Thus, Dyna Soar can not show that they relied on earlier Indiana decisions when drafting its exculpatory agreement.

II.

Marsh also argues that the trial court erred when it entered summary judgment on his products liability claim. In particular, he argues that the Dyna Soar machine is a product for purposes of the Indiana Products Liability Act. 1 We disagree.

1 The Indiana Products Liability was codified at Ind. Code § 33-1-1.5-1 et seq. Since the inception of this litigation, however, the Act has been recodified at Ind. Code § 34-20-1-1 et seq. Hereinafter, we shall refer to the Indiana Products Liability Act using its former citation.

[HN6] In order to be subject to liability under the Indiana Products Liability Act, Dyna Soar must be defined as the seller of a product. The Act defines a seller as “a person engaged in the business of selling or leasing a product for resale, use, or consumption.” [*1002] Ind. Code § 33-1-1.5-2(5). 2 A product [**11] is defined as follows:

” [HN7] Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Ind. Code § 33-1-1.5-2(6). 3 Marsh claims that Dixon created a machine, a product, and provided a service. He argues that his claim should not be barred just because a service was provided in this case. In support of his argument, he points this court to Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379 (Ind. Ct. App. 1990). In Ferguson, a worker fell off of a ladder that was attached to a grain bin. The plaintiffs sued the manufacturers of the grain bin and its component parts under a products liability theory. In determining that the Indiana Products Liability Act applied to the plaintiffs’ claims, the Ferguson court stated: “the legislature did not contemplate a distinction between movable and nonmovable property, but rather sought to exclude transactions which relate primarily to the act of providing a service, such as that provided by an accountant, attorney, or physician.” 555 N.E.2d at 1384-85. [**12] Marsh claims that no such service was provided in his case. We do not find Ferguson dispositive. The crucial issue in Ferguson concerned whether the real estate improvement statute of limitations or the products liability statute of limitations applied to the plaintiffs’ products liability claim. Thus, the Ferguson court discussed whether property affixed to real estate constitutes a product. Such is not the issue in the present case.

2 See now Ind. Code § 34-6-2-136

3 See now Ind. Code § 34-6-2-114

We find Hill v. Rieth-Riley Const. Co., Inc., 670 N.E.2d 940 (Ind. Ct. App. 1996) more applicable to the set of facts presented here. In Hill, the defendants removed and reset guardrails to facilitate the resurfacing of U.S. 31. The plaintiff struck one of these guardrails and brought suit against the defendants under the Indiana Products Liability Act. This court held that the contract between the Indiana Department of Transportation and the plaintiffs was predominantly a contract for [**13] services. The Hill court stated: “even if it were true that 31 new concrete plugs were installed and some rusted rails replaced, the [plaintiffs] have presented no evidence that this contract was not “for the most part” about the service of resurfacing the roadway.” 670 N.E.2d at 943. In this case, the transaction between Marsh and Dyna Soar wholly involved a service. By purchasing a ticket from Dyna Soar, Marsh received the limited right to ride the Dyna Soar machine. He did not receive an interest in any property. In fact, Dyna Soar retained all rights to operate and control the machine in question. We conclude that the trial court did not err by entering summary judgment against Marsh on his products liability claim.

Affirmed in part and reversed in part.

BAKER, J., and GARRARD, J., concur.


A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually, Appellants, vs. Young Men’s Christian Association of Greater Indianapolis, Appellee.

No. 49A04-1211-CT-551

COURT OF APPEALS OF INDIANA

2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

July 19, 2013, Decided

July 19, 2013, Filed

NOTICE: PURSUANT TO INDIANA APPELLATE RULE 65(D), THIS MEMORANDUM DECISION SHALL NOT BE REGARDED AS PRECEDENT OR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR THE LAW OF THE CASE.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

SUBSEQUENT HISTORY: Transfer denied by A.M.D. v. YMCA of Greater Indianapolis, 997 N.E.2d 356, 2013 Ind. LEXIS 883 (Ind., Nov. 7, 2013)

PRIOR HISTORY: [*1]

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Heather Welch, Judge. Cause No. 49D12-0805-CT-20350.

Taylor v. State, 891 N.E.2d 155, 2008 Ind. App. LEXIS 1678 (Ind. Ct. App., 2008)

CORE TERMS: summary judgment, camper, causation, counselor, bathroom, staff, proximate cause, restroom, superseding, intervening, exculpatory clause, foreseeability, foreseeable, bush, rafting, looked, matter of law, superseding cause, reasonably foreseeable, duty to supervise, chain of causation, omission, sexual assaults, suspicious, violent, negligent act, question of fact, supervision, supervising, designated

COUNSEL: ATTORNEY FOR APPELLANTS:DANIEL S. CHAMBERLAIN, Doehrman Chamberlain, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: MARK D. GERTH, JEFFREY D. HAWKINS, MICHAEL WROBLEWSKI, Kightlinger & Gray, LLP, Indianapolis, Indiana.

JUDGES: FRIEDLANDER, Judge. ROBB, C.J., and KIRSCH, J., concur.

OPINION BY: FRIEDLANDER

OPINION

MEMORANDUM DECISION – NOT FOR PUBLICATION

FRIEDLANDER, Judge

A.M.D., a minor, by his parents and guardians, John Doe and Jane Doe, and John Doe and Jane Doe individually, appeal from the trial court’s order granting summary judgment in favor of Young Men’s Christian Association of Greater Indianapolis and YMCA of Greater Indianapolis (collectively, the YMCA) in an action brought by the Does alleging negligence against the YMCA. The following issue is presented in this appeal: Did the trial court err by granting summary judgment in favor of the YMCA under the doctrine of superseding causation?

We reverse.

The facts designated to the trial court for purposes of ruling on the motion for summary judgment follow. When A.M.D. was eight years old, he participated in a summer day camp through the YMCA’s Day Camp [*2] Program at Lions Park in Zionsville, Indiana. The camp was offered to children in grades kindergarten through sixth grade. On June 27, 2006, YMCA camp counselors accompanied A.M.D. and the other camp participants to Creekside Park, which is a park immediately adjacent to Lions Park. On that particular day there were fifteen to twenty children, ranging in age from six years old to twelve years old, and three camp counselors at the park.

The purpose of the trip to Creekside Park was to give the children the opportunity to enjoy rafting and playing in and around the water. The camp began that day at 7:00 a.m. and the group walked over to Creekside Park at approximately 2:00 p.m. Until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious.

During the rafting excursion, the counselors were situated such that one counselor, Megan Donaldson, was positioned where the rafting began, and two counselors, Melissa Raab and Jay Binkert, were [*3] positioned where the rafting ended. Shortly after the rafting began, A.M.D. told Raab that he needed to go to the bathroom. Since the public restroom was a ten-to-fifteen minute walk away, Raab allowed A.M.D. to urinate by some bushes that were within Raab’s direct and unobstructed view. Raab instructed A.M.D. to remain by the bush and to return when he was finished. At the time Raab instructed A.M.D. to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

A.M.D. went to the bathroom by the bushes as instructed and was within Raab’s line of sight. Raab momentarily turned her attention towards the creek to check on the other children, and turned her attention away from A.M.D. for less than a minute. When Raab looked back to check on A.M.D., he was gone. Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor [*4] approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D. Once Raab noticed that A.M.D. was not by the bushes, she immediately began looking for A.M.D. and screaming his name. Ultimately, A.M.D. was found, but the perpetrator had run away. Approximately six months later, Taylor was arrested on an unrelated charge and was subsequently identified as the person who had sexually assaulted A.M.D. Taylor was convicted of a class A felony and was sentenced to fifty years in the Department of Correction. See Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1142, 129 S. Ct. 1008, 173 L. Ed. 2d 301 (2009), reh’g denied, 556 U.S. 1148, 129 S. Ct. 1665, 173 L. Ed. 2d 1032; Taylor v. State, No. 06A04-1009-PC-557, 951 N.E.2d 312 (July 29, 2011), trans. denied.

Prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that [*5] were committed at the Lions or Creekside Parks. Prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

On May 7, 2008, the Does individually, and on behalf of A.M.D., filed a negligence action against the YMCA. The YMCA filed a motion for summary judgment in the action presenting the following two claims: 1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims. The Does filed their opposition to the YMCA’s motion for summary judgment claiming that the following four theories precluded the entry of summary judgment in the YMCA’s favor: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue [*6] of the exculpatory clause contained in the camper application form signed by Jane Doe.

On September 17, 2012, the trial court held a hearing on the YMCA’s motion for summary judgment. In part, the trial court’s order on summary judgment reads as follows:

The Court hereby finds that the Defendant, YMCA, is entitled to summary judgment as a matter of law and the Court hereby GRANTS the Defendant, YMCA’s, Motion for Summary Judgment. The Court hereby DENIES the Plaintiffs’ Partial Motion for Summary Judgment regarding the exculpatory clause. The Court further notes that the Defendant never disputed that they had a duty to supervise A.M.D. Thus, the Court does not find this issue was before the Court and the Court declines to address the Plaintiffs[sic] Motion for Partial Summary Judgment on this issue as it is moot due to the Court’s ruling on the issue of proximate cause. There is no just reason for delay, and [the YMCA] is entitled to judgment in their favor and against A.M.D., a Minor, by His Parents and Guardians, JOHN DOE AND JANE DOE, and JOHN DOE AND JANE DOE, Individually on the Plaintiffs’ Complaint as a matter of law. This Judgment is a full, complete, and final Judgment on the [*7] Plaintiffs’ Complaint as to [the YMCA] in this case. The Clerk of this Court shall enter the Judgment in the Judgment Docket.

Appellant’s Appendix at 21. A.M.D. and the Does appeal. Additional facts will be supplied where necessary.

A.M.D. and the Does contend that the trial court erred by granting the YMCA’s motion for summary judgment and by denying their motion for partial summary judgment on the issue of the impact of the exculpatory clause in the camper application signed by Jane Doe. The trial court included in its summary judgment order specific findings of fact and conclusions of law. A trial court’s specific findings and conclusions are not required, and, while they offer insight into the trial court’s rationale for the judgment entered, and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind. Ct. App. 2007). A trial court’s order granting summary judgment may be affirmed upon any theory supported by the designated materials. Id. Additionally, the fact that the parties filed cross-motions for summary judgment does not alter our standard of [*8] review. Id. In that situation, we consider each motion separately in order to determine whether the moving party is entitled to judgment as a matter of law. Id.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). “Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.” Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006). Where the action involves negligent supervision of a child, we have made the following observation:

[T]here is a well-recognized duty in tort law that persons entrusted with children have a duty to supervise their charges. The duty is to exercise ordinary care on behalf of the child in custody. The duty exists whether or not the supervising party has agreed to watch over the child for some form of compensation. However, the caretaker is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.

Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006). Our Supreme [*9] Court announced the three-part test for determining whether to impose a duty at common law in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), viz. (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003). Furthermore, the trial court found and the parties do not contest the finding that the YMCA owed a duty to supervise A.M.D.

In this case, the question presented on appeal concerns the issue of causation. We have held that causation is an essential element of a negligence claim. Bush v. N. Ind. Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997). “The injurious act must be both the proximate cause and the cause in fact of an injury. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination.” Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002). In the present case, the trial court entered summary judgment in favor of the YMCA after engaging in an analysis of causation, which we reproduce in pertinent [*10] part as follows:

Summary Judgment Standard

. . . .

11. This Court notes the issue presented by YMCA’s Motion for Summary Judgment only addresses the element of causation. The Court does find under well-settled Indiana Law that the YMCA had a duty to supervise A.M.D. However, the issue for this Court is whether there is a material dispute of fact on the element of proximate cause.

12. In order to prevail in a negligence action, the plaintiff must demonstrate all the requisite elements of a cause of action: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach.” Ford Motor Co. v Rushford, 868 N.E.2d 806, 810 (Ind. 2007). The question of whether the defendant owes the plaintiff a legal duty is generally one of law for the court. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).

. . . .

17. Causation is an essential element of a negligence claim. Bush v. Northern Indiana Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997), trans. denied (1999). “Proximate cause has two components: causation-in-fact and scope of liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1243-44 (Ind. 2003). [*11] To establish factual causation, the plaintiff must show that but for the defendant’s allegedly tortious act or omission, the injury at issue would not have occurred. Id. The scope of liability doctrine asks whether the injury was a “natural and probable consequence” of the defendant’s conduct, which in the light of the circumstances, should have been foreseen or anticipated. Id. at 1244. Liability is not imposed on the defendant if the ultimate injury was not “reasonably foreseeable” as a consequence of the act or omission. Id. Therefore, the fundamental test of proximate cause is “reasonable foreseeability”. Lutheran Hospital of Indiana, Inc v. Blaser, 634 N.E.2d 864, 871 (Ind. Ct. App. 1994).

18. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination. Adams Twp. Of Hamilton County v. Sturdevant, 570 N.E.2d 87, 90 (Ind. Ct. App. 1991). However, “Where only a single conclusion can be drawn from the set of facts, proximate cause is a question of law for the court to decide.[“] Merchants National Bank v. Simrell’s, 741 N.E.2d 383, 389 (Ind. Ct. App. 2000).

19. In this case, the facts are undisputed and only a single conclusion can be [*12] drawn or inferred from the facts. Therefore, the Court finds that the issue of proximate cause is a question of law not fact.

Appellant’s Appendix at 13-16. The trial court then analyzed cases addressing the issue whether intentional criminal acts of third parties break the chain of causation under the doctrines of superseding and intervening causation.1

1 The Supreme Court described the doctrine as follows:

The doctrine of superseding or intervening causation has long been part of Indiana common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (internal citations omitted)(emphasis supplied).

Our Supreme Court in Control Techniques examined whether Indiana’s Comparative [*13] Fault Act2 had subsumed or abrogated the doctrines of superseding and intervening causation, and the impact of the viability of those doctrines, such that error could be predicated upon the refusal to instruct the jury thereon. In concluding that no instruction on the doctrine of superseding causation was warranted, the Supreme Court stated as follows:

For the reasons expressed below, we agree with the Court of Appeals that no separate instruction is required. In capsule form, we conclude that the doctrines of causation and foreseeability impose the same limitations on liability as the “superseding cause” doctrine. Causation limits a negligent actor’s liability to foreseeable consequences. A superseding cause is, by definition, one that is not reasonably foreseeable. As a result, the doctrine in today’s world adds nothing to the requirement of foreseeability that is not already inherent in the requirement of causation.

Control Techniques, Inc. v. Johnson, 762 N.E.2d at 108. The court went on to hold that the adoption of the Comparative Fault Act did not affect the doctrine of superseding cause. Id.

2 Ind. Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through June 29 2013, excluding [*14] P.L. 205-2013).

The YMCA argues that the trial court correctly found that Taylor’s criminal conduct was a superseding or intervening cause of the harm to A.M.D. and cites Restatement (Second) of Torts § 448 in support. The Restatement provides as follows:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

The YMCA claims that it was not foreseeable that a sexual predator would be lying in wait in the woods in an attempt to sexually molest one of their campers, and in particular, A.M.D.

Restatement (Second) of Torts §449, known as the very duty doctrine, provides as follows: If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, [*15] negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The YMCA’s bathroom procedure for the camp, as set forth in the camp brochures provides as follows:

No camper is ever alone and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

Appellant’s Appendix at 179. Additionally, day campers were to go to the bathroom in pairs, with one counselor present. The YMCA’s Code of Conduct for Day Camp Counselors provided as follows with respect to restroom supervision:

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless [*16] of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Id. at 213.

Further, the counselors were instructed that they shall never leave a child unsupervised. In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety. Several of the major responsibilities of the Camp Site Director involved the protection of the campers, such as personally supervising the campers at all times, being directly responsible for the daily safety and schedule of the campers, and maintaining a clean, neat, and safe campsite.

Raab’s deposition testimony indicated her understanding that an eight-year-old child should not be allowed to go to the restroom by himself or wander off because the YMCA did not want the child to get lost, suffer any harm, or be attacked. She further attested to the fact that under the YMCA’s rules campers are allowed to use only those bathrooms inspected by staff to make sure there was no one suspicious lurking around or lingering. Another YMCA employee [*17] attested as follows:

Q: What are the bathroom procedures for the YMCA?

A: For one staff person to accompany two children to the restroom.

Q: And why do you have that procedure or policy?

A: To protect children and to protect the staff.

Q: Protect children from what?

A: Potential child-on-child abusers or any interaction of any kind that’s inappropriate, fighting.

Q: Well, you would also have that policy and procedure for the one staff and two children to prevent sexual molestation from third parties, correct?

A: Correct.

Q: And that’s exactly what happened here; Mr. Taylor came upon the scene, found this child and assaulted him?

A: I can’t . . . .

Id. at 181.

Other designated evidence before the trial court suggested that until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern on the day in question. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious. Furthermore, prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that were committed at the Lions or Creekside [*18] Parks. Additionally, prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.” Rauck v. Hawn, 564 N.E.2d 334, 339 (Ind. Ct. App. 1990). Furthermore, a determination of whether Taylor’s act was a superseding or intervening cause of A.M.D.’s harm such that the original chain of causation has been broken depends on a determination of whether it was reasonably foreseeable under the circumstances that an actor would intervene in such a way as to cause the resulting injury. Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009).

In order to make that determination, three factors are pertinent to the analysis. First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete [*19] control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm. Id. At a minimum, the facts pertinent to the third factor are in dispute. Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.3

3 The trial court did not resolve the issue of whether the exculpatory clause in the camper application signed by Jane Doe released YMCA from liability because the issue was moot. We do not address the arguments pertaining to the release of liability because there is no ruling on this issue subject to our review.

Judgment reversed.

ROBB, C.J., and KIRSCH, J., concur.


Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

* Formatting in this case maybe different when finalized by the Court.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

Wendy Jane Stone, Plaintiff-Appellant, v. Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc., Defendants-Appellees.

Court of Appeals No. 15CA0598

COURT OF APPEALS OF COLORADO, DIVISION I

2016 Colo. App. LEXIS 1829

December 29, 2016, Decided

OPINION

[*1] City and County of Denver District Court No. 14CV33637 Honorable R. Michael Mullins, Judge

Opinion by JUDGE MILLER

Taubman and Fox, JJ., concur

Announced December 29, 2016

Charles Welton P.C., Charles Welton, Denver, Colorado, for Plaintiff-Appellant

Markusson Green & Jarvis, John T. Mauro, H. Keith Jarvis, Denver, Colorado, for Defendants-Appellees

¶ 1 In this action seeking recovery for personal injuries sustained at a fitness club, plaintiff, Wendy Jane Stone, appeals the summary judgment entered in favor of defendants, Life Time Fitness, Inc.; Life Time Fitness Foundation; and LTF Club Operations Company, Inc. (collectively, Life Time), on Stone’s negligence and Premises Liability Act (PLA) claims based on injuries sustained when she tripped on a hair dryer cord after washing her hands. The principal issue presented on appeal is whether the district court correctly ruled that Stone’s claims are contractually barred based on assumption of risk and liability release language contained in a member usage agreement (Agreement) she signed when she became a member of Life Time.

¶ 2 We disagree with the district court’s conclusion that the exculpatory provisions of the Agreement are valid as applied [*2] to Stone’s PLA claim. Consequently, we reverse the judgment as to that claim and remand the case for further proceedings. We affirm the district court’s judgment on the negligence claim.

I. Background

¶ 3 Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

¶ 4 Stone alleged that allowing the blow dryer cord to hang below the sink counter constituted a trip hazard and a dangerous condition and that, by allowing the condition to exist, Life Time failed to exercise reasonable care. She asserted a general negligence claim and also a claim under Colorado’s PLA, section 13-21-115, C.R.S. 2016.

¶ 5 Life Time moved for summary judgment, relying on assumption of risk and liability release language contained in the Agreement Stone signed when she joined Life Time. Life Time argued that the Agreement was [*3] valid and enforceable, that it expressly covered the type and circumstances of her injuries, and that it barred Stone’s claims as a matter of law. A copy of the Agreement appears in the Appendix to this opinion.

¶ 6 After full briefing, the district court granted Life Time’s motion, concluding that the Agreement was “valid and enforceable” and that Stone had released Life Time from all the claims asserted in the complaint.

II. Discussion

¶ 7 She contends that the district court, therefore, erred in entering summary judgment and dismissing her action.

A. Summary Judgment Standards

¶ 8 Summary judgment is appropriate if the pleadings and supporting documents establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Gagne v. Gagne, 2014 COA 127, ¶ 24; see C.R.C.P. 56(c). We review de novo an order granting a motion for summary judgment. Gagne, ¶ 24; see Ranch O, LLC v. Colo. Cattlemen’s Agric. Land Tr., 2015 COA 20, ¶ 12.

B. Negligence Claim

¶ 9 In her complaint, Stone alleged common law negligence and PLA claims, and she pursues both claims on appeal. The trial court’s summary judgment ruled in favor of Life Time without distinguishing between Stone’s negligence and PLA claims. It simply concluded that the [*4] exculpatory clauses in the Agreement were “valid and enforceable” and released Life Time from all claims asserted against it.

¶ 10 We turn to the negligence claim first because we may affirm a correct judgment for reasons different from those relied on by the trial court. English v. Griffith, 99 P.3d 90, 92 (Colo. App. 2004).

¶ 11 The parties agree that the PLA applies to this case. In section

13-21-115(2), the statute provides:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

The PLA thus provides the sole remedy against landowners for injuries on their property. Vigil v. Franklin, 103 P.3d 322, 328-29 (Colo. 2004); Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo. App. 2010). Similarly, it is well

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

Section 13-21-115(1), C.R.S. 2016, defines “landowner” as including “a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” In its answer, Life Time admitted that it owned and operated the club where Stone was injured and that the PLA governs her [*5] claims.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

established that the PLA abrogates common law negligence claims against landowners. Legro v. Robinson, 2012 COA 182, ¶ 20, aff’d, 2014 CO 40.

¶ 12 Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court therefore correctly ruled against her on that claim. We now turn to the effect of the exculpatory clauses in the Agreement on Stone’s PLA claim.

C. Application of Exculpatory Clauses to PLA Claim

¶ 13 As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room. We agree.

1. Law

¶ 14 “Generally, exculpatory agreements have long been disfavored.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998). Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. Id.; Jones [*6] v. Dressel, 623 P.2d 370, 375 (Colo. 1981). This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Our supreme court has explained:

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Id.

¶ 15 Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language. 623 P.2d at 375.

2. Analysis

a. The First Three Jones Factors

¶ 16 The first three Jones factors provide little help for Stone’s position. The supreme court has specified that no public duty is implicated if a business provides recreational services. See Chadwick, 100 P.3d at 467 (addressing guided hunting services and noting that providers of recreational activities owe “no special duty [*7] to the public”); Jones, 623 P.2d at 376-78 (skydiving services); see also Hamill, 262 P.3d at 949 (addressing recreational camping services and noting supreme court authority).

¶ 17 With regard to the second factor, the nature of the services provided, courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity. See Chadwick, 100 P.3d at 467; Hamill, 262 P.3d at 949; see also Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (snowmobiling not a matter of practical necessity), aff’d, 127 F.3d 1273 (10th Cir. 1997); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (whitewater rafting not an essential service), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997). Stone attempts to distinguish those cases by asserting that people join fitness centers “to promote their health, not for the thrill of a dangerous recreational activity.” She cites no authority for such a distinction, and we are not persuaded that such activities as camping and horseback riding, at issue in the cases cited above, are engaged in for a dangerous thrill as opposed to the healthful benefits of outdoor exercise. Consequently, the recreational nature of the services Life Time provides does not weigh against upholding or enforcing the Agreement.

¶ 18 With respect to the third factor, a contract is fairly entered into if one party [*8] is not at such an obvious disadvantage in bargaining power that the effect of the contract is to place that party at the mercy of the other party’s negligence. See Hamill, 262 P.3d at 949; see also Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Possible examples of unfair disparity in bargaining power include agreements between employers and employees and between common carriers or public utilities and members of the public. See Heil Valley Ranch, Inc., 784 P.2d at 784. However, this type of unfair disparity is generally not implicated when a person contracts with a business providing recreational services. See id.; see also Hamill, 262 P.3d at 949-50.

¶ 19 In evaluating fairness, courts also examine whether the services provided could have been obtained elsewhere. Hamill, 262 P.3d at 950. Nothing in the record indicates that Stone could not have taken her business elsewhere and joined a different fitness club or recreation center. Nor is there any other evidence that the parties’ relative bargaining strengths were unfairly disparate so as to weigh against enforcing the Agreement.

¶ 20 We therefore turn to the fourth prong of the Jones test – whether the intention of the parties was expressed in clear and unambiguous language. [*9]

b. The Fourth Jones Factor

¶ 21 The validity of exculpatory clauses releasing or waiving future negligence claims usually turns on the fourth Jones factor – whether the intention of the parties is expressed in clear and unambiguous language. Wycoff, 251 P.3d at 1263 (applying the Jones factors to a PLA claim). This case also turns on that factor.

¶ 22 The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable. Chadwick, 100 P.3d at 467; see also Threadgill v. Peabody Coal Co., 34 Colo. App. 203, 209, 526 P.2d 676, 679 (1974), cited with approval in Jones, 623 P.2d at 378.

¶ 23 We conclude that the Agreement fails this test for numerous reasons.

¶ 24 First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Gross v. Sweet, 400 N.E.2d 306, 309 (N.Y. 1979), cited with approval in Jones, 623 P.2d at 378. Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

¶ 25 Second, the two clauses are replete with legal jargon, using phrases and terms such as “affiliates, subsidiaries, [*10] successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.” The use of such technical legal language militates against the conclusion that the release of liability was clear and simple to a lay person.

¶ 26 Third, the first of the two clauses relied on by Life Time bears the following heading: “under Chapter 458, 459, 460, or Chapter 461 ASSUMPTION OF RISK.” At oral argument, counsel for Life Time conceded that the reference to multiple chapters was ambiguous and confusing, and he could not explain to what the chapters referred. Our research has not enlightened us on the subject. Conscientious lay persons could reasonably have skipped over the fine print appearing under that heading, believing it did not apply to them because they would have no reason to understand that chapters 458, 459, 460, or 461 had any relevance to their situation. Thus, the assumption of risk heading was not clear and unambiguous.

¶ 27 Fourth, the dominant focus of the Agreement is on the risks of strenuous exercise and use of exercise equipment at the fitness center:

  • The opening paragraph [*11] of the Agreement contains the following warning: “All members are strongly encouraged to have a complete physical examination by a medical doctor prior to beginning any work out program or strenuous new activity. If I have a history of heart disease, I agree to consult a physician before becoming a Life Time Fitness member.”
  • Under the confusing assumption of risk heading, the first sentence states, “I understand that there is an inherent risk of injury, whether caused by me or someone else, in the use of or presence at a Life Time Fitness Center, the use of equipment and services at a Life Time Fitness Center, and participation in Life Time Fitness’ programs.”
  • There then follows a listing of types of risks, including the use of “indoor and outdoor pool areas with waterslides, a climbing wall area, ball and racquet courts, cardiovascular and resistance training equipment,” and other specified programs, as well as
  • “[i]njuries arising from the use of Life Time Fitness’ centers or equipment” and from activities and programs sponsored by Life Time; “[i]njuries or medical disorders resulting from exercise at a
  • Life Time Fitness center, including, but not limited to heart attacks, strokes, [*12] heart stress, spr [sic] broken bones and torn muscles or ligaments”; and “[i]njuries resulting from the actions taken or decisions made regarding medical or survival procedures.”

¶ 28 Fifth, the term “inherent risk of injury” that appears in the assumption of risk clause has been applied in various Colorado statutes and case law to address waivers of liability only for activities that are dangerous or potentially dangerous. Thus, the General Assembly has provided for releases from liability in circumstances such as activities involving horses and llamas, section 13-21-119, C.R.S. 2016; being a spectator at baseball games, section 13-21-120, C.R.S. 2016; agricultural recreation or agritourism activities (including hunting, shooting, diving, and operating a motorized recreational vehicle on or near agricultural land), section 13-21-121, C.R.S. 2016; skiing, section 33-44-109, C.R.S. 2016; and spaceflight activities, section 41-6-101, C.R.S. 2016. Significantly, not one of these statutory exemptions from liability extends to the use of locker rooms, rest rooms, or dressing rooms associated with these activities. Rather, the releases of liability extend only to the dangerous or potentially dangerous activities themselves.

¶ 29 Colorado’s published cases concerning the term “inherent risks” similarly concern dangerous or potentially [*13] dangerous activities. For example, the term “inherent risks” has been addressed in cases involving skiing, Graven v. Vail Assocs., Inc., 909 P.2d 514, 519 (Colo. 1995); horseback riding, Heil Valley Ranch, Inc., 784 P.2d at 782; medical procedures or surgical techniques, Mudd v. Dorr, 40 Colo. App. 74, 78-79, 574 P.2d 97, 101 (1977); and attendance at roller hockey games, Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707, 710 (Colo. App. 2000). Thus, in reported cases, the term “inherent risks” has been limited to dangerous or potentially dangerous activities, rather than accidents occurring in more common situations, such as using locker rooms.

¶ 30 In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands. Indeed, Stone so stated in her affidavit submitted in opposition to the motion for summary judgment.

¶ 31 Sixth, Life Time contends that the only relevant language we need consider is that set forth in the second exculpatory clause, labeled “RELEASE OF LIABILITY.” That provision begins [*14] by stating that “I waive any and all claims or actions that may arise against Life Time . . . as a result of any such injury.” (Emphasis added.) The quoted language, however, is the first use of the term “injury” in the release of liability clause. So the scope of the release can be determined only by referring back to the confusing assumption of risk clause. It is not surprising then that Life Time’s counsel characterized the release’s reference to “such injury” as “squirrely.” In any event, all of the ambiguities and confusion in the assumption of risk clause necessarily infect the release clause.

¶ 32 Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive. Compare Maehal Enters., Inc. v. Thunder Mountain Custom Cycles, Inc., 313 P.3d 584, 590 (Colo. App. 2011) (declining to treat the phrase as restrictive and citing Bryan A. Garner, A Dictionary of Modern [*15] Legal Usage 432 (2d ed. 1995)), with Ridgeview Classical Sch. v. Poudre Sch. Dist., 214 P.3d 476, 483 (Colo. App. 2008) (declining to conclude that the phrase took the statute out of the limiting rule of ejusdem generis). For purposes of deciding this case we need not resolve this conflict; the relevance of the conflict for present purposes is that it creates another ambiguity.

¶ 33 That ambiguity – expansive versus restrictive – is critical because nothing in the Agreement refers to risks of using sinks or locker rooms. The assumption of risk clause refers to the “risk of loss, theft or damage of personal property” for the member or her guests while “using any lockers” at a Life Time fitness center. That is quite a separate matter, however, from suffering a physical injury in a locker room.

¶ 34 Significantly, when Life Time intends to exclude accidental injuries occurring in locker rooms, it knows how to draft a clear waiver of liability doing so. In Geczi v. Lifetime Fitness, 973 N.E.2d 801, 803 (Ohio Ct. App. 2012), the plaintiff entered into a membership agreement with Life Time in 2000 (eleven years before Stone entered into the Agreement), which provided in relevant part:

[T]he undersigned agrees to specifically assume all risk of injury while using any of the [*16] Clubs[‘] facilities, equipment, services or programs and hereby waives any and all claims or actions which may arise against LIFE TIME FITNESS or its owners and employees as a result of such injury. The risks include, but are not limited to

. . . .

(4) Accidental injuries within the facilities, including, but not limited to the locker rooms, . . . showers and dressing rooms.

Id. at 806. Life Time chose not to include similar language in the Agreement signed by Stone.

c. The Agreement Is not Clear, Unambiguous, and Unequivocal

¶ 35 Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. See Chadwick, 100 P.3d at 467. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

III. Conclusion

¶ 36 The judgment on Stone’s negligence claim is affirmed, the judgment on her PLA claim is reversed, and the case is remanded for further proceedings on that claim.

JUDGE [*17] TAUBMAN and JUDGE FOX concur.