Advertisements

A Waiver is giving up a right and is revocable agreement. A release is a contractual agreement not to sue and can be made irrevocable. If you run a recreational or sporting activity, you want a release, not something where the people can change their minds.

Here the defendant used a release. The plaintiff argued it was a waiver and assumption of the risk document and should be barred because they had been outlawed in Connecticut as a defense. The court agreed.

Rodriguez v. Brownstone Exploration & Discover Park, LLC, 2017 Conn. Super. LEXIS 844

State: CONNECTICUT, SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

Plaintiff: Yulissa Rodriguez

Defendant: Brownstone Exploration & Discover Park, LLC

Plaintiff Claims:

Defendant Defenses:

Holding: for the defendant

Year: 2017

Summary

The plaintiff was injured using a rope swing at the defendant’s park.

Many states abolished the defense of Assumption of the risk. In this case, the plaintiff argued that the release she signed was just an assumption of the risk document and was void because that defense was abolished.

The plaintiff also argued the document was titled a waiver and therefore, was not a release. Both arguments of the defendant were struck down. The first because a waiver is not a release and the second because the document was no different from an assumption of the risk document, which was no longer a defense in Connecticut.

Facts

Plaintiff filed a motion to strike the first two affirmative defenses, or here; the court referred to them as special defenses, the defendant pleaded. When a defendant answers a complaint, the defendant can plead the defenses to the specific facts and legal claims, and the defendant can plead affirmative defenses. Affirmative defenses are a list of approved defenses, that if they are not pled, are lost to the defendant.

Release is an affirmative defense in most states and was pled in this case.

To get rid of the special defenses, the plaintiff filed a motion to strike.

“‘A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.’ A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.’ . . ‘In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency.’ . . . ‘On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient.

The court’s response to the motion to strike is here.

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

The plaintiff’s argument was because the courts had abolished the defense f assumption of the risk, the releases were not valid because they were only proof of assumption of the risk. The plaintiff argued:

“Waiver” and “Release” are, in actuality, based on assumption of risk because they purport to relieve defendant of liability for risks inherent in the activity, which by statute is not a valid defense in this negligence action.

The first affirmative defense was waiver. In vast majority of states, a waiver is different from a release. Waiver’s can be revoked. When you waive a right, a lot of states allow you to revoke that waiver. A release is a contract and can only be terminated by the terms of the agreement.

The court reviewed the prior defense of assumption of the risk.

‘Traditionally, the doctrine provided a defendant with a complete defense to a claim of negligence that centered on the conduct of the plaintiff . . . [T]he assumption of risk variants fall generally into two separate categories: (1) a negligence defense that the plaintiff’s conduct operated so as to relieve the defendant of a duty of care with regard to the plaintiff; and (2) a negligence defense that, while conceding that the defendant owed a duty of care and breached that duty, precludes recovery by the plaintiff because the plaintiff was aware of the defendant’s negligence and the risk thereby created, but nevertheless chose to confront such risk.

However, the courts and or legislatures had abolished the defense because they felt it had not kept up with the times. Instead, the concept of assumption of the risk was part of the facts the jury undertook to determine the damages to be awarded to the plaintiff. If the plaintiff assumed the risk, then the jury could reduce the damages the plaintiff would receive.

Since then, many courts have reinstated the defense of assumption of the risk as a defense in sport and recreational activities. Many legislatures have also brought back the defense in statutes covering sports and recreational activities, such as Skier Safety Statutes. However, Connecticut has not done that. In Connecticut, assumption of the risk is not a defense; it has been merged into comparative negligence.

In this case, the release signed by the plaintiff was titled “Assumption of Risk, Release of Liability, Waiver of Claims & Arbitration Agreement.” The plaintiff argued that the document was a written assumption of risk document and should be void.

Under Connecticut law a Waiver is “the voluntary relinquishment or abandonment of a known right or privilege.” This is quite different from a release, which is contractually giving a right to sue over an injury prior to the injury. Waiver’s can be oral or in writing. The common waiver you hear about all the time is a criminal suspect on TV being told their rights. At any time, the criminal defendant can change their mind and not give up their rights because they waived their rights, which are reversible.

Connecticut courts have recognized that pre-injury waiver as a defense to a claim based on inherent risks from an activity is not the same as a waiver of a claim of defendant’s own negligence.

The court continued its analysis of Connecticut law by reviewing Connecticut Supreme Court decisions on the issue. Here the court differentiated between inherent risks, which are still assumed and assumption of risk as a defense.

…the Supreme Court differentiated between pre-injury release from inherent risks of an activity, defined by reference to a dictionary definition of “inherent” as “structural or involved in the constitution or essential character of something,” from release of negligence that involves the exercise of some control over the activity and/or conditions by defendant.

The court then found that the language of the waiver was only a defense to the inherent risks of the activity. A waiver under Connecticut law is not a release.

The language of the waiver provision here is limited to “the inherent risks of this activity” and is not broad enough to exculpate defendant for its own negligence.

The defendant was unable to prove that there was a difference between their documents and the loss of the assumption of risk defense. Meaning the defendant lost their motion because the waiver was the same in this case as assumption of the risk, which had been abolished.

Defendant has failed to show that the waiver special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to waiver by contract. The motion to strike the First Special Defense is denied.

The second motion based on release was also denied for the same reason.

A contractual release of liability for inherent risks from an activity is not conceptually the same thing as assumption of risk from participation in a risky activity. Defendant has failed to show that the release special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to releases by contract. The motion to strike the Second Special Defense is denied.

So Now What?

This decision picked through, carefully, the differences between a defense that had been merged into a way to determine damages, assumption of the risk, and a contractual document to release the defendant from liability.

The decision is also confusing as hell!

The result is you must carefully write your release in Connecticut. You must define the risks and have the signor agree those risks are inherent in the activity.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

Advertisements

A Motion to Strike is used by the defendant to eliminate the threat of punitive damages in this fatality claim.

The deceased had entered onto the land of the defendant and was using a rope swing to jump into a lake. She died, somehow, using the swing and her estate sued the landowner.

Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford – Norwalk, at Stamford

Plaintiff: Renee Kopesky

Defendant: Connecticut American Water Company

Plaintiff Claims: wrongful death (?)

Defendant Defenses: Motion to Strike

Holding: for the defendant

Year: 1999

Summary

This motion to strike was used to take punitive damages off the table in the litigation. This takes a lot of pressure off the defendant and deals a significant blow to the plaintiff. The damages in the case are dropped significantly probably increasing the chance of a settlement.

Facts

The plaintiff is the administratrix of the estate for the deceased. The deceased entered on to land owned by the defendant and died when she fell off a rope swing over a lake.

The defendant filed a motion to strike. A motion to strike is a preliminary motion used to eliminate claims that have no basis in the facts or the law does not allow.

The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of the complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) For purposes of a motion to strike, the moving party admits all facts well pleaded.”

The motion to strike may also be used to contest the legal sufficiency of any prayer for relief.

The defendant argued that the second count of the complaint, a claim for punitive damages was legally insufficient because it relies on the same facts the plaintiff basis their first claim on, negligence. Those facts did not support a claim for punitive damages.

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

The court first looked at the elements the plaintiff had to prove to a claim for punitive damages. To receive punitive damages the plaintiff would have to prove the defendant’s actions were reckless.

Recklessness is a state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid a danger to others or to take reasonable precautions to avoid injury to them . . .”

A claim for negligence must be separate and distinct and based on additional facts from a recklessness claim.

There is a wide difference between negligence and reckless disregard of the rights or safety of others . . . A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made . . . In other words, it is clearly necessary to plead a [common law] cause of action grounded in recklessness separate and distinct from a negligence action.”

For the plaintiff to prove recklessness the actions of the defendant must be intentional and the conduct must be highly unreasonable.

In order to rise to the level of recklessness, [the] action producing the injury must be intentional and characterized by highly unreasonable conduct which amounts to an extreme departure from ordinary care . . .”

Here the court found the plaintiff had not pled the facts necessary to prove a claim of recklessness. Consequently, there could be not be a claim for punitive damages and the second count must be dismissed.

So Now What?

It seems odd to file a motion to eliminate one claim. However, like bunting in baseball, it has a greater effect than sacrificing a runner.

First, it makes your insurance company rest easier because most policies do not cover punitive damages. Eliminating this claim takes tremendous burden and conflict off the defendant and the insurance company.

Second, the damages have been dropped significantly. In this case, the damages are reduced to the lost value of the life of the deceased.

Finally, it deals a blow to the plaintiff. Litigation is a lot of back and forth, minor wins or losses over the course of the litigation. This is a slightly bigger loss for the plaintiff and will put both parties in a better position to negotiate a settlement.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Rodriguez v. Brownstone Exploration & Discover Park, LLC, 2017 Conn. Super. LEXIS 844

Rodriguez v. Brownstone Exploration & Discover Park, LLC, 2017 Conn. Super. LEXIS 844

Yulissa Rodriguez v. Brownstone Exploration & Discover Park, LLC

FBTCV166055234S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

2017 Conn. Super. LEXIS 844

May 4, 2017, Decided

May 4, 2017, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

CORE TERMS: special defenses, assumption of risk, inherent risks, abolished, own negligence, contractual, legal sufficiency, risks inherent, relieve, legal doctrine, legally insufficient, duty of care, present case, statutory prohibition, legislatively, conceptually, exculpatory, sustaining, pre-injury, favorable, releasing, struck, admit, risky, participating

JUDGES: [*1] Edward T., Krumeich, J.

OPINION

MEMORANDUM OF DECISION

Plaintiff Yulissa Rodriguez has moved to strike the First and Second Special Defenses in the answer of defendant Brownstone Exploration & Discovery Park, LLC, arguing that they are barred under C.G.S. §52-572h(l), which provides: “[t]he legal doctrine . . . of . . . assumption of risk in actions to which this section is applicable [is] abolished.” Plaintiff asserts that the special defenses that are labeled “Waiver” and “Release” are, in actuality, based on assumption of risk because they purport to relieve defendant of liability for risks inherent in the activity, which by statute is not a valid defense in this negligence action. For the reasons stated below, the motion to strike the First and Second Special Defenses is denied.

Standards for Deciding a Motion to Strike Special Defenses

“‘A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.’ Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001); Practice Book §10-39(a).2 ‘A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.’ . . . Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). ‘In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and [*2] construe them in the manner most favorable to sustaining their legal sufficiency.’ . . . Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). ‘On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient.’ . . . Smith v. Jackson, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024411-S (August 21, 2015, Roraback, J.) (59 Conn. L. Rptr. 864, 2015 Conn. Super. LEXIS 2191). Finally, ‘the trial court is limited to considering the grounds specified in the motion [to strike].’ Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).” Pritsker v. Bowman, 2017 Conn. Super. LEXIS 190, 2017 WL 811609 *2 (Conn.Super. 2017) (Bellis, J.).

The Court May Not Review Material Outside the Pleading in Deciding a Motion to Strike

Plaintiff urged the court to consider the quoted excerpts from the contract alleged in the special defenses in the context of the entire contract, which plaintiff appended to her brief. In ruling on a motion to strike a court is required “to take the facts to be those alleged in the special defenses in the manner most favorable to sustaining their legal sufficiency.” Connecticut Nat. Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). The Court is not free to consider those portions of the contract that are not alleged nor attached as an exhibit to the answer. See generally Mercer v. Cosley, 110 Conn.App. 283, 292, 955 A.2d 550 (2008) (speaking motion to strike is improper).

The First Special Defense States the Defense of Waiver

In this action plaintiff claimed she was injured while using [*3] a rope swing at defendant’s park. Both sides referred the Court to Segal v. Brownstone Exploration and Discovery Park, LLC, 2014 Conn. Super. LEXIS 1183, 2014 WL 2696775 *2 (Conn.Super. 2014) (Roche, J.), a similar case brought against the same defendant in which Judge Roche struck a special defense based on assumption of risk: “‘[T]he doctrine [of assumption of risk] was a product of the industrial revolution, designed to insulate employers to the greatest possible extent by defeating the claims of their injured workers.’ Donahue v. S.J. Fish & Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV-539920-S (September 18, 1995, Blue, J.) (15 Conn. L. Rptr. 569, 570, 1995 Conn. Super. LEXIS 2618) [1995 WL 562216]. ‘Traditionally, the doctrine provided a defendant with a complete defense to a claim of negligence that centered on the conduct of the plaintiff . . . [T]he assumption of risk variants fall generally into two separate categories: (1) a negligence defense that the plaintiff’s conduct operated so as to relieve the defendant of a duty of care with regard to the plaintiff; and (2) a negligence defense that, while conceding that the defendant owed a duty of care and breached that duty, precludes recovery by the plaintiff because the plaintiff was aware of the defendant’s negligence and the risk thereby created, but nevertheless chose to confront such risk.’ . . . Blondin v. Meshack, Superior Court, [*4] judicial district of New Haven, Docket No. CV-08-5018828-S (October 2, 2008, Lager, J.) [46 Conn. L. Rptr. 396, 2008 Conn. Super. LEXIS 2512] [2008 WL 4635882]. However, “[t]he harsh doctrine . . . is plainly `morally unacceptable’ in modern times . . . The majority of states have altered or abolished it, either legislatively or by judicial decision . . . [T]he Connecticut legislature has statutorily abolished the doctrine in negligence cases.” Donahue v. S.J. Fish & Sons, Inc., supra, 15 Conn. L. Rptr. at 570, 1995 Conn. Super. LEXIS 2618. General Statutes §52-572h(l) states: “The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished.” In the present case, accordingly, the defendant’s second special defense is legally insufficient because the doctrine of assumption of the risk has been legislatively abolished with regard to negligence claims. The plaintiffs’ motion to strike the defendant’s second special defense is, therefore, granted.”

Defendant has not asserted a defense of assumption of risk, but rather alleged that plaintiff signed a document entitled “Assumption of Risk, Release of Liability, Waiver of Claims & Arbitration Agreement” in which “the plaintiff agreed to waive all claims against [defendant] . . . arising out of the inherent risks of participating in programs and events operated by [defendant] . . .”1 The First Special Defense alleged [*5] “[a]ny injuries sustained by the plaintiff while using the ‘Blob’ activity at [defendant] . . . arose out of the inherent risks of this activity.”

1 This is a classic contract of adhesion that is not bargained for but accepted by the consumer as a condition for his or her participation in the activity. Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 328-29, 333, 885 A.2d 734 (2005).

“Waiver is the voluntary relinquishment or abandonment of a known right or privilege.” Brown v. City of Hartford, 160 Conn.App. 677, 698, 127 A.3d 278 (2015). See also Benedetto v. Proprietors of the Commons at Mill River, Inc., 2014 Conn. Super. LEXIS 2322, 2014 WL 5356665 *8 (Conn.Super. 2014) (Vitale, J.), contractual waiver as special defense).

Connecticut courts have recognized that pre-injury waiver as a defense to a claim based on inherent risks from an activity is not the same as a waiver of a claim of defendant’s own negligence. See e.g., Hanks, 276 Conn. at 326, 335; Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643-44, 829 A.2d 827 (2003). In Hyson, the Supreme Court distinguished between release of liability for risks inherent in an activity and exculpation of a party’s own negligence:

In keeping with the well-established principle, however, that `[t]he law does not favor contract provisions which relieve a person from his own negligence’ . . . we conclude that the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides. The release signed in the present case illustrates the need for such a rule. A person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only [*6] from liability for damages caused by dangers inherent in the activity of snow tubing. A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights.

(Emphasis added.)

In Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687-88, 849 A.2d 813 & nn. 17-22 (2004), the Supreme Court differentiated between pre-injury release from inherent risks of an activity, defined by reference to a dictionary definition of “inherent” as “structural or involved in the constitution or essential character of something,” from release of negligence that involves the exercise of some control over the activity and/or conditions by defendant. In Hanks, 276 Conn. at 741, the Supreme Court cited the definition of inherent risk in Jagger, 269 Conn. at 692: “inherent risks . . . are innate to the activity, [and] ‘are beyond the control of the [recreational] operator’s exercise of reasonable care.'”

In Segal, 2014 Conn. Super. LEXIS 1183, 2014 WL 2696775 *8, the same court that had struck the assumption of risk special defense, declined to strike the waiver special defense; the court assumed the allegation that plaintiff had waived risks inherent in the activity was true as alleged, and concluded that the provision was exculpatory because it expressly included defendant’s negligence. [*7]

The language of the waiver provision here is limited to “the inherent risks of this activity” and is not broad enough to exculpate defendant for its own negligence. A contractual waiver of liability for inherent risks from an activity is not conceptually the same thing as assumption of risk from participation in a risky activity. Defendant has failed to show that the waiver special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to waiver by contract. The motion to strike the First Special Defense is denied.

The Second Special Defense States the Defense of Release

The Segal Court also refused to strike the release defense for the same reasons it did not strike the waiver special defense. 2014 Conn. Super. LEXIS 1183, 2014 WL 2696775 *8. The release special defense here also alleges the contractual release “arising out of the inherent risks of participation in the Programs . . .”2 A contractual release of liability for inherent risks from an activity is not conceptually the same thing as assumption of risk from participation in a risky activity. Defendant has failed to show that the release special defense is the same as the assumption [*8] of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to releases by contract. The motion to strike the Second Special Defense is denied.

2 This may be an exculpatory provision since it includes “the instruction received while participating in the Programs,” which is subject to control of the operator. Plaintiff has not moved to strike on this ground.

KRUMEICH, J.


Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

Kopesky v. Connecticut American Water Company, 1999 Conn. Super. LEXIS 2166

Renee Kopesky v. Connecticut American Water Company

CV 950145791

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD – NORWALK, AT STAMFORD

1999 Conn. Super. LEXIS 2166

August 2, 1999, Decided

August 2, 1999, Filed

NOTICE: [*1] THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

DISPOSITION: Defendant’s motion to strike second count of plaintiff’s amended complaint, and that portion of the prayer for relief claiming punitive damages, denied.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant brought a motion to strike the second count of plaintiff’s amended complaint and that portion of the prayer for relief claiming punitive damages in an action alleging that decedent sustained fatal injuries on defendant’s property because of defendant’s negligence and reckless conduct.

OVERVIEW: Decedent died when she fell from a swing on defendant’s property. Plaintiff brought an action against defendant, alleging that defendant was aware that the public entered their property to go swimming. The second count of plaintiff’s complaint alleged that defendant’s acts or omissions were done recklessly, wantonly, carelessly, and with a reckless disregard for the consequences of its acts or omissions. Defendant brought a motion to strike count two of plaintiff’s complaint and that portion of the prayer for relief claiming punitive damages. The court ruled that a motion to strike could be used to contest the legal sufficiency of any prayer for relief. Further, the court held that an action sounding in reckless conduct required an allegation of an intentional act that resulted in injury. Also, the court found that in order to rise to the level of recklessness, the action producing the injury must be intentional and characterized by highly unreasonable conduct which amounted to an extreme departure from ordinary care. The court, viewing the allegations in the light most favorable to plaintiff, denied the motion, concluding that the allegations did rise to the level of recklessness.

OUTCOME: Motion to strike the second count of plaintiff’s complaint and that portion of the prayer for relief claiming punitive damages was denied where, viewing the complaint in the light most favorably to plaintiff, plaintiff alleged facts sufficient to state causes of action sounding in negligence and recklessness.

CORE TERMS: recklessness, quotation marks omitted, reckless, sounding, reckless disregard, judicial district, favorably, prayer, decedent, common law, reckless conduct, legal sufficiency, cause of action, contest, viewing, fatal injuries, punitive damages, carelessness, recklessly, omissions, wantonly, swing

JUDGES: D’ANDREA, J.

OPINION BY: D’ANDREA

OPINION

MEMORANDUM OF DECISION RE: MOTION TO STRIKE

The plaintiff, Renee Kopesky, the administratrix for the estate of Tiffany Jean Kopesky, brought this action against the defendant, Connecticut American Water Company, for damages sustained by the plaintiff’s decedent. The plaintiff alleges that the plaintiff’s decedent sustained fatal injuries on the defendant’s property, when she fell from a rope swing as she attempted to swing out into the water. The plaintiff alleges that the defendant was aware that the public entered their private property to go swimming, hiking, camping and fishing. In the first count of the amended complaint, the plaintiff alleges that the plaintiff’s decedent suffered severe painful and fatal injuries as a result of the defendant’s negligence and carelessness. In the second count, the plaintiff alleges that [*2] the defendant’s “acts and/or omissions . . . were done recklessly, wantonly, carelessly and with a reckless disregard for the consequences of its acts and/or omissions.”

The defendant moves to strike count two of the plaintiff’s amended complaint and that portion of the prayer for relief claiming punitive damages. The defendant argues that “count two is legally insufficient because a claim for recklessness cannot be established by relying upon the same set of facts used to establish negligence. The second count of plaintiff’s amended complaint simply restates the facts underlying the plaintiff’s claim for negligence. Reiterating the same underlying facts of a negligence claim and renaming the claim as one for recklessness does not transform ordinary negligence into recklessness.”

” [HN1] The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of the complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). ” [HN2] For purposes of a motion to strike, the moving party admits all facts well pleaded.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994); [*3] see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). “The court must construe the facts in the complaint most favorably to the plaintiff.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

The motion to strike may also be used to contest the legal sufficiency of any prayer for relief. See Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 298 n.4, 478 A.2d 257 (1984); Central New Haven Development Corp. v. Potpourri, Inc., 39 Conn. Supp. 132, 133, 471 A.2d 681 (1993); Practice Book 10-39(a)(2).

” [HN3] Recklessness is a state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid a danger to others or to take reasonable precautions to avoid injury to them . . .” (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). [*4]

This court has previously held that “the allegations of one count of a complaint based on a common law reckless conduct must be separate and distinct from the allegations of a second count sounding in negligence . . . There is a wide difference between negligence and reckless disregard of the rights or safety of others . . . A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made . . . In other words, it is clearly necessary to plead a [common law] cause of action grounded in recklessness separate and distinct from a negligence action.” (Alterations in original; internal quotation marks omitted.) Thompson v. Buckler, 1999 Conn. Super. LEXIS 199, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 153798 (Jan. 27, 1999) ( D’Andrea, J.), Epner v. Theratx, Inc., 1998 Conn. Super. LEXIS 603, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 161989 (Mar. 10, 1998) (D’Andrea, J.). “In short, [HN4] an action sounding in reckless conduct requires an allegation of an intentional act that results in injury.” Id.

” [HN5] In order to rise to the level of recklessness, [the] action producing the injury must be intentional and characterized [*5] by highly unreasonable conduct which amounts to an extreme departure from ordinary care . . .” (Alterations in original; internal quotation marks omitted.) Epner v. Theratx, Inc., supra, 1998 Conn. Super. LEXIS 603, Superior Court, Docket No. 161989, citing Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). In the present case, viewing the allegations in the light most favorably to the plaintiff, the allegations do rise to the level of recklessness.

“If the alleged facts constitute recklessness . . . using the same facts in the negligence count does not prevent them from also being reckless. The test is whether the alleged facts amount to recklessness.” Walters v. Turrisi, 1997 Conn. Super. LEXIS 1011, Superior Court, judicial district of New London at New London, Docket No. 541162 (Apr. 15, 1997) ( Hurley, J.). “The mere fact that the allegations and factual assertions in a reckless count are the same or similar to one in a negligence count shouldn’t ipso facto mean the reckless count cannot be brought. The test is whether the facts alleged establish a reckless count. If they do all it would mean is that the plaintiff is pleading in the alternative.” Cancisco v. Hartford, 1995 Conn. Super. LEXIS 1885, Superior Court, judicial [*6] district of Hartford-New Britain at Hartford, Docket No. 519929 (June 26, 1995) (Corradino, J.).

In this case, viewing the complaint in the light most favorably to the plaintiff, the plaintiff has alleged facts sufficient to state causes of action sounding in negligence and recklessness. The first count of the plaintiff’s amended complaint contains twenty-five paragraphs of allegations relating to the defendant’s conduct regarding the incident in question. In the first count, the plaintiff alleges that that conduct amounts to the defendant’s negligence and/or carelessness.

In the second count, the plaintiff realleges and incorporates those twenty-five paragraphs from the first count and then alleges, in paragraph twenty-six, that the aforementioned conduct indicates that the defendant acted recklessly, wantonly and with a reckless disregard for the consequences. The allegations in the second count do rise to the level of recklessness. Accordingly, the plaintiff has pled an alternative cause of action sounding in recklessness, separate and distinct from the negligence count. Therefore, the defendant’s motion to strike the second count of the plaintiff’s amended complaint, [*7] and that portion of the prayer for relief claiming punitive damages, is hereby denied.

So Ordered.

D’ANDREA, J.


Safe, NOTHING is safe, when you advertise telling those who come to your website that your business, activity, or land is safe, you will be writing checks for anything pain, blood, illness or injury that can occur.

Website for park stated it was a safe place for visitors. Plaintiff went to the park because of that statement and when she fell on a rock protruding above the boardwalk, she sued. Is a rock sticking through a boardwalk a risk, normal or at least “not safe.”

The plaintiff was able to claim negligent misrepresentation because the park represented itself as safe. Safe is a Bad work.

Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

State: New Hampshire: United States District Court for the District of New Hampshire

Plaintiff: Misha Kendall

Defendant: The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association

Plaintiff Claims: Negligence, Gross Negligence and Negligent Misrepresentation

Defendant Defenses:

Holding: for the plaintiff

Year: 2017

Summary

The website promoting the private park stated the park was safe. The plaintiff went, paid her fee and got hurt. Therefore, the park was not safe. The plaintiff was able to argue the statements made on the website about safety were negligent misrepresentation; Negligent statements made to induce the plaintiff to come to the park.

The second issue was a gap between a recently passed statute and decisions of the New Hampshire Supreme Court which effectively nullified the two immunity statutes by the legislature to protect the park.

Facts

There is always an issue of “when.” When did the plaintiff actually learn or see, but in this case, the court stated the following facts.

The land is owned by a nonprofit corporation, and is operated by a third party.

The Society for the Protection of New Hampshire Forests (the “Society”) is a nonprofit corporation which owns the Lost River Gorge and Boulder Caves (“Lost River”). White Mountain Attractions Association (“White Mountain”) operates Lost River. White Mountain manages Lost River’s website, and the Society contributes to and approves the website’s content.

The land is protected from lawsuits by a specific statute that was enacted in 1917.

Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River’s reservations, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.

So, the relationship with the state is, it is not a state park, but it is protected like one to a major extent.

The plaintiff alleges that was looking for an outdoor activity that would be safe for herself and her two six-year-old children. She went to the website of for the park to look for a “safe way” to view rock formations.

She took herself and her two children to the park, paid the entrance fee and proceeded to a boardwalk. The boardwalk was four feet wide and crowded. The boardwalk turned sharply after a bridge on the say to the Sun Altar cave. The plaintiff’s view was blocked after the turn because of the crowd, a sign and a large tree.

Just after the turn a boulder protruded up through the boardwalk about a foot.

Just after the turn, a large boulder extended through the middle of the boardwalk to a height of about a foot. The boardwalk was constructed around this boulder. There were no signs to warn of the boulder in the boardwalk. Kendall did not see the boulder in her path, tripped over it, and fell, shattering her elbow. Her digital camera was destroyed, and her clothing had to be cut off of her at the hospital. She has permanent damage to her elbow that has resulted in disability.

The plaintiff sued for her injuries.

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

The defendant raised four defenses to the gross negligence and negligent misrepresentation claims of the plaintiff.

Defendants contend that Kendall’s claims for gross negligence and negligent misrepresentation are futile for the following reasons: (a) defendants are immune from liability for both claims under the 1917 Law; (b) no claim for gross negligence exists under New Hampshire law; (c) the statement about the boardwalks being safe is not a misrepresentation of fact but merely an opinion; and (d) Kendall does not allege damages that can be recovered for negligent misrepresentation.

The court first started with the immunity statutes. Besides the specific immunity statute enacted in 1917, there was a more recent statute, RSA 508.14, II.

508:14. Landowner Liability Limited.

II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

Emphasize added

What never enters the discussion is the fact the plaintiff paid to be on the land, so the recreational use statute, RSA 508.14 should not apply.

The court first decided if the new statute canceled out the old statute and made the termination that it did not. It then examined both statutes stating that the statutes should be strictly construed and viewed as being consistent with each other. Reading the first statute that one, the court found the first statute stopped claims for negligence, but not gross negligence.

The issue though is the New Hampshire Supreme court ruled that New Hampshire does not recognize gross negligence. There is only one form of negligence in New Hampshire, simple negligence.

However, because the statute in question stated that the defendant could be liable for gross negligence or willful or wanton misconduct, the court held the legislature wanted the plaintiff to be able to sue for gross negligence.

Therefore, the plaintiff’s allegations of gross negligence were outside of the immunity afforded by both statutes.

Gross negligence was defined by the court as:

…”very great negligence, or the absence of slight diligence, or the want of even scant care” and willful misconduct has been interpreted as intentional conduct or recklessness that “carries a great chance of causing harm to another.”

Based on that definition the court was able to find the boulder built in the middle of the boardwalk was gross negligence.

…Kendall alleges that defendants built the boardwalk around an obstruction, a boulder that protrudes into the boardwalk approximately one foot higher than the boardwalk. She also alleges that the boulder is in a dangerous location, just around a turn, and is obscured by a sign, a tree, and crowds of people using the boardwalk. She alleges that defendants placed no warnings about the boulder for the tourists to see before walking on the boardwalk. The proposed amended complaint alleges that the obstructed boardwalk constitutes an obvious danger, and that defendants acted with gross negligence in failing to remove or warn of the boulder.

The court tackled the negligent misrepresentation claim next. Negligent misrepresentation is “a negligent misrepresentation of a material fact by the defendant and justifiable reliance by the plaintiff.” The website stated the place was safe and the plaintiff, in her opinion, found it wasn’t.

The court was not sold on the plaintiff’s allegations, however.

At this early stage, the court cannot determine whether defendants’ alleged statement that there were boardwalks at Lost River that provided a “safe way” to view rock formations is an actionable misrepresentation.

Whether the statement on the website was actionable would be based upon several factors: whether or not it was puffing, slight exaggerations to close the sale that everyone knows are not true, the specificity of the statement, the knowledge of the person making the statement and the knowledge of both parties in relation to each other.

The plaintiff argued “that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers.”

The allegations made by the plaintiff were enough for the court not to dismiss them.

Consequently, the plaintiff will be allowed to amend her complaint to add additional claims, which would make the defendants motion to dismiss the original complaint moot.

So Now What?

Marketing makes promises that Risk Management has to Pay For. The marketing promised a safe place to recreate, and the plaintiff received in an injury there; therefore, the place was not safe.

Combine the statements made on the website with the gap between decisions of the New Hampshire Supreme Court and recent statutes in New Hampshire and the plaintiff was effective in keeping her claim alive.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


No matter who created the activity or the risk on Town’s land, using the risk was an outdoor recreation activity and protected by the New Hampshire Recreational Use Statute.

Besides if you stand in front of a rope swinging when someone is using it attempting to slap the swinger’s feet as he goes by, and you get flattened by the swinger you should not be able to recover. 

Kurowski v. Town of Chester, 2017 N.H. LEXIS 174

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Jay Kurowski F/N/F Christopher Kurowski

Defendant: Town of Chester

Plaintiff Claims: acted negligently and willfully or intentionally by failing to remove the rope swing or post warning signs.

Defendant Defenses: New Hampshire Recreational Use Statute 

Holding: For the Defendant Town 

Year: 2017 

Summary 

The Town had a park with a pond. Someone had put up a rope swing that allowed you to swing into the pond. The town knew about the rope swing and knew that it was possibly hazardous. However, the town never removed the rope swing or posted signs about the hazards it presented. 

The minor plaintiff was standing in front of someone using the rope swing attempting to hit the person’s feet when he was clobbered by the person on the swing suffering injuries. 

The father of the plaintiff sued. The trial court and the appellate court dismissed the case because the New Hampshire Recreational Use Statute provided immunity to the Town for outdoor recreational activities such as this one.

Facts 

The defendant city had a park with a pond. Someone put up a rope swing to use to swing into the pond. The city did not create the rope swing. Several people complained to the city about the rope swing and asked for it to be taken down or signs put up warning against its use.

The Town owns and maintains the Wason Pond Conservation and Recreation Area, which includes walking paths and Wason Pond, and is open to the public free of charge. Since approximately 2012, a rope swing has been attached to a tree overhanging the pond. Neither the plaintiff nor the Town constructed or maintained the swing. People use the rope swing to fling themselves over and into the pond.

The plaintiff, a minor, was at the rope swing. Another person was using the swing to enter the water. The plaintiff was attempting to hit the person’s feet. The person on the swing and the plaintiff collided injuring the plaintiff.

On August 20, 2015, Christopher was at the pond, standing in the path of a person using the swing. While Christopher was attempting to touch the feet of the person swinging on the rope, the two collided, and Christopher was seriously injured.

The father of the minor filed this lawsuit. The city filed a motion for summary judgment asking the compliant be dismissed because the city as the landowner was protected by the New Hampshire Recreational Use Statute

The trial court agreed and dismissed the case. The plaintiff appealed. 

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

The plaintiff first argued that using a rope swing to swing into a pond was not an outdoor recreation activity as defined under the New Hampshire Recreational Use Statute. The court quickly shot this down because the statute did not list everything that was to be protected by the statute it only listed a few things and started that list with the language “including, but not limited to….

The court had found other decisions it had made where it interpreted outdoor recreation activities as covered under the statute even though they were not identified in the statute. 

By its plain terms, the statute’s list of outdoor recreational activities is not exhaustive. Indeed, we have previously applied the principle of ejusdem generis to this provision and concluded that an activity not specifically enumerated — but similar in nature to the activities listed in the statute — may constitute an “outdoor recreational activity.” The principle of ejusdem generis provides that, when specific words in a statute follow general ones, the general words are construed to embrace only objects similar in nature to those enumerated by the specific words.

Looking at the statute and the activity the court found the activity was a water sport and thus covered under the statute. 

We hold that Christopher was actively engaged in an outdoor recreational pursuit sufficiently similar in nature to the enumerated activity of “water sports” to constitute an “outdoor recreational activity” under RSA 212:34, I(c). 

The next argument made by the plaintiff was because the town did not supply the swing, it was not covered under the New Hampshire Recreational Use Statute. The court quickly shot this down finding it does not matter what was used in an outdoor recreational activity or who supplied it.

However, the identity of the person or entity providing the equipment or structure used in an outdoor recreational activity is immaterial. See id. at 56 (finding immaterial the fact that playground equipment used in outdoor activity was provided by landowner rather than user). Indeed, many of the enumerated outdoor recreational activities, for example, hunting, camping, hiking, bicycling, and snowmobiling, see RSA 212:34, I(c),….

The plaintiff next argued the activity was not an outdoor recreational activity because the landowner did not authorize the activity and because the activity was hazardous. The court seemed a little irked when it shot this argument down.

In fact, the statute specifically contemplates that immunity will apply even if the activity at issue involves a known hazardous condition. See RSA 212:34, II (“A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises … . (emphasis added)).

The next argument made by the plaintiff centered around whether or not the actions of the town willful when it failed to post signs about hazards of the activity. The plaintiff argued one version of the definition of the term willful, and the town argued a second. The court found that under either definition, the town was still immune under the statute. Additionally, the court found the actions of the
town were not willful because the plaintiff could not establish the town knew or should have known that an injury would probably result from the activity. 

An allegation that a landowner knew about a particular hazard and did nothing is insufficient to establish that the landowner knew or should have known that injury would probably result from that hazard. At most, such allegations sound in negligence. Therefore, even assuming that the Spires definition applies, we conclude that the plaintiff’s allegations are insufficient as a matter of law to establish that the Town acted “willfully.”

The plaintiff then argued the acts of the town were intentional. That part of the case was dismissed by the trial court because the court found the plaintiff had not alleged enough facts to prove a case of intentional acts on the part of the town. The plaintiff’s argument was:

The plaintiff argues that the Town’s conduct constituted an intentional act for the same reasons he asserts the Town’s conduct was willful — because the Town acknowledged that the rope swing was a hazard, was warned about that hazard on three occasions between 2012 and 2015, did nothing to remove it, and did not post warning signs. 

The court did not agree. There was no proof or pleading that the town had actual or constructive knowledge that its conduct, in failing to post signs or take down the swing, was conduct that was a substantially certain to result in an injury.

At most, the plaintiff’s allegations — that the Town was aware of a hazardous condition or activity and failed to act — sound in negligence. (concluding that allegations that defendant disregarded a substantial risk and failed to act sound in negligence). Accordingly, we hold that the trial court did not err when it found that the plaintiff alleged
insufficient facts to show that the Town’s conduct was willful or intentional.

The decision of the trial court was upheld, and the complaint dismissed.

So Now What? 

This case shows two simple truths for the outdoor recreation industry today. The first, plaintiffs are going to greater lengths to create arguments to litigate over outdoor recreation injuries. The work the plaintiff put in, in order to redefine each word of the statute in a way that did not protect the Town was
substantial and lengthy. 

The second is the statutes have to be written in a way that broadens the protections the legislature intends to give the courts the leeway to dismiss frivolous claims like this. Frivolous because I believe assumption of the risk would be the next defense.

If you stand in front of someone who is holding on to a rope swinging in your direction, and you do so willingly, you assume the risk of getting flattened.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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

clip_image002 clip_image004 clip_image006 clip_image008 clip_image010

 If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw,
#AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps,
#ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw,
#FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation,
#IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence,
#OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw,
#Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer,
#RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,
#Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer,
#RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding,
#SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw,
#OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, swing, “outdoor, recreational
activity”, landowner”, rope, discovery, hazard, immunity, willful, intentional
act, pond, recreational use, constructive knowledge, enumerated, warning, water
sports, hazardous conditions, “willfully, quotation, postpone, probable”, warn,
dock, matter of law, person using, dangerous condition, shallow water,
recreational, “willful”, guard, Recreational Use, Recreational Use Statute, Rope
Swing,

 

 

 


Non-governmental park not liable under Georgia Recreational Use Statute because cyclists failed to negotiate a barricade. The dangerous condition was open, obvious and visible to all including the deceased.

Because cyclists failed to look up and did not see the barricades in time, does not change the fact the barricades were visible for hundreds of feet.

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

State: Georgia; Court of Appeals of Georgia

Plaintiff: Nancy Amestoy

Defendant: Stone Mountain Memorial Association

Plaintiff Claims: (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

Defendant Defenses: Georgia Recreational Use Statute

Holding: For the Defendant at trial Court, Plaintiff on appeal 

Year: 2016

Summary

The Georgia Recreational Use Statute extends immunity to non-governmental landowners. Here a cyclist died after failing to look up and see barricades blocking a road. Because the barricades were open and obvious, the Recreational Use Statute protected the landowner from suit. 

Facts 

The deceased was on a bike ride. The road he was riding had been closed for a foot race. The closure was  accomplished by two saw horse barricades. The deceased in attempting to negotiate between them fell suffering head injuries, while wearing a helmet, and died.

…between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed  side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

It appeared to witnesses that the deceased did not look up until the last minute to see the barricades. 

…Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day. 

The plaintiff, wife of the deceased, sued for:

(1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual
knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

The defendant filed a motion for summary judgment stating it was not liable because of the Georgia Recreational Use Act. The plaintiff argued that the exception to the act applied, if the landowner of and did not warn of a dangerous condition. The Trial court agreed and the defendant immediately appealed that order. 

SMMA responded and filed a motion for summary judgment, contending that it was immune from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous.

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

The defendant appealed the decision based upon the facts that:

… (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was
open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law….

Under the Georgia Recreational Use Act, the landowner owes no duty of care to keep the premises safe for others entering the land for recreational purposes.

In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

There is a liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. Under Georgia’s law:

…”willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental,  involuntary, inattentive, inert, or passive omission.” And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”  Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner  (SMMA) had actual knowledge that (1) the property was being used for recreational purposes; (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible con-sequences. Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property. Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.

The court held the plaintiff failed to produce any evidence to create a jury question on whether or not the condition was not apparent to those using the property, the third prong of the test.

The court cited witness statements and statements from the investigators that the barriers where visible at least for hundreds of feet. 

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious, as overwhelmingly demonstrated by the foregoing testimony and photographic evidence.

The Appellate Court reversed the trial court and granted the defendant’s motion for summary judgment based on the Georgia Recreational Use Statute

So Now What? 

The first take away is the Georgia Recreational Use Statute protects parks owned non-governmental landowners from suit. The second is, even though the statute has an exception for “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity,” the landowner must have actual knowledge, not just constructive knowledge of the dangerous condition.

Here because the barricades were visible for hundreds of feet, the barricades did not constitute a dangerous condition. 

If you are a cyclist, look up once in a while. 

What do you think? Leave a comment.

 Copyright 2017 Recreation Law (720) 334 8529

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

clip_image002 clip_image004 clip_image006 clip_image008 clip_image010

 If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

 #AdventureTourism, #AdventureTravelLaw,
#AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps,
#ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw,
#FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation,
#IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence,
#OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw,
#Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer,
#RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,
#Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer,
#RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding,
#SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw,
#OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

barricade, actual knowledge, dangerous condition, prong,
summary judgment, visible, punctuation, warn, recreational purposes, property
owners, warning, ‘willful, feet, bicyclist, matter of law, issues of material
fact, recreational, genuine, guard, user, captain, injured party, subjective,
stream, block, cone, stationed, distance, bicycle, evidence sufficient, Georgia
Recreational Use Statute, Recreational Use, Stone Mountain Memorial
Association, Non-governmental Park,