Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)
Posted: September 25, 2023 Filed under: Assumption of the Risk, Colorado, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Collision, Inherent Risk Release, Mammoth Mountain Ski Area, ski area, skiing, Snowmobile, Waiver Leave a commentTo Read an analysis of this case see:
Snowmobiles are an inherent risk on ski slopes in California.
Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)
JOHN VALTER, Plaintiff and Appellant,
v.
MAMMOTH MOUNTAIN SKI AREA, LLC, Defendant and Respondent.
C096036
California Court of Appeals, Third District, Mono
September 18, 2023
NOT TO BE PUBLISHED
Super. Ct. No. CV170111
BOULWARE EURIE, J.
Mammoth Mountain Ski Area, LLC, is a ski resort that, like many ski resorts, uses snowmobiles in its operations. John Valter sued Mammoth after colliding with one of these snowmobiles while skiing. He alleged that a Mammoth employee improperly drove the snowmobile up the mountain and then stopped in his path. On Mammoth’s motion for summary judgment, the trial court found his claims failed as a matter of law for two reasons. First, it found Valter’s claims barred under the doctrine of primary assumption of risk, reasoning that a collision with a plainly visible snowmobile is a risk inherent in skiing and that Mammoth had not increased this risk. Second, it found Valter’s claims barred because he expressly assumed the risk of colliding with a snowmobile when he signed Mammoth’s liability waiver. In the waiver, Valter acknowledged the risks of colliding with snowmobiles and excused Mammoth for liability for its negligence.
On appeal, Valter contends neither ground for granting summary judgment is valid. Starting with the doctrine of primary assumption of risk, he asserts the doctrine is inapplicable because the risk of colliding with a snowmobile is not a risk inherent in skiing and, even it were, Mammoth improperly increased this risk. Turning to express assumption of risk, he asserts Mammoth’s conduct was grossly negligent and so exceeded the scope of the liability waiver. We limit our discussion to Valter’s second argument. Because we conclude the trial court properly granted summary judgment on the ground of express assumption of risk, we affirm on that basis.
BACKGROUND
I
Factual Background
Mammoth is a ski resort in Mammoth Lakes. As is common in the ski industry, it uses snowmobiles in its operations and has taken certain steps to reduce the chance of collisions with guests. It has, for instance, created a snowmobile training program and developed training materials that, among other things, require its snowmobile drivers to limit their speed in congested areas, to ride on the side of the run providing the best visibility, to yield to guests, and to use flags and headlights when driving in public areas. It has additionally posted signs at the top of ski lifts warning that snowmobiles “may be encountered at any time,” included the same warning in its trail map, and, in its liability waiver for season-pass holders, required season-pass holders to acknowledge that “Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”
Mammoth has also established preferred routes for its snowmobile drivers with the intent to limit collision risks. One of these routes formerly covered two ski runs called St. Moritz and Stump Alley. Stump Alley is a larger, popular run that ends at the base of the resort; St. Moritz is a smaller run that branches off Stump Alley. To provide a rough visualization of these runs, think of a rotated lowercase y-as in, A-with the longer line representing Stump Alley and the shorter line representing St. Moritz. For the designated route covering these runs, snowmobile drivers were instructed to stay to their left when going up St. Moritz; then, where St. Moritz meets Stump Alley, to make a slight right turn onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, to travel across Stump Alley and then stay to their left when going up Stump Alley. A map of Mammoth’s preferred snowmobile routes shows the St. Moritz-to-Stump Alley route. As depicted in the map, the route crosses Stump Alley at an upward diagonal from right to left and then goes up the left of Stump Alley. Mammoth began developing this route at some time before 1989 and used it until late 2016.
In early 2016, one of Mammoth’s lift maintenance employees, Joshua Peters, drove his snowmobile up St. Moritz on his way to a lift maintenance station. Peters- who had completed Mammoth’s snowmobile safety training-drove up St. Moritz at about 15 miles per hour, slowed to about five miles per hour before exiting St. Moritz, and then continued at this speed on Stump Alley as he looked to cut across the run. Valter, an expert skier, was skiing down the left side of Stump Alley at the same time and began decelerating from about 30 miles per hour to make a left turn onto St. Moritz. Peters said he saw Valter from a distance of about 80 to 120 feet, slowed further, and then stopped. But Valter never saw Peters. Valter made three or four controlled turns a after Peters first saw him, and he then collided with Peters’s snowmobile on Stump Alley. Valter suffered significant injuries as a result.
Two other witnesses saw the accident. One was another Mammoth employee who was driving a snowmobile behind Peters. He afterward told an officer that Peters had stopped and that Valter was looking over his left shoulder just before the collision- though Valter told the same officer that he never looked over his shoulder. Another witness saw the accident from above on a ski lift. In a written statement, he said the snowmobile was driving slowly up Stump Alley diagonally from “skier[‘]s left to right”-as in, from the left side to the right side of the run from the perspective of a skier going downhill. He added that the snowmobile had slowed almost to a stop at the time of impact. But, he wrote, it was “almost as though [the] skier never saw [the] snow mobile”; the skier traveled in a “controlled line but it was directly into [the] snow mobile.”
Several photographs taken immediately after the collision show the snowmobile’s appearance and position at the time of the accident. The snowmobile is dark blue and flies an orange flag at its back. It is not obstructed by any apparent obstacles. Another photograph taken after the accident, which the parties marked up during Peters’s deposition, shows Peters’s path from St. Moritz to Stump Alley. Both parties accept that the photograph accurately depicts his path. The photograph (together with other photographs of the scene) shows Peters entered Stump Alley from the far left of St. Moritz near a sign describing different runs and then headed up Stump Alley at a sharp diagonal. According to a diagram that Mammoth personnel made after the accident, the distance between this sign and Peters’s snowmobile at the place of the collision was 44 feet.
Before the accident, and as a condition of holding a season pass, Valter signed a liability waiver. In the waiver, Valter agreed he “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles,” “agree[d] that these risks and dangers are necessary to the sports of Skiing and Snowboarding,” “AGREE[D] TO EXPRESSLY ASSUME ANY AND ALL RISK OF INJURY OR DEATH which might be associated with [his] participation in the SPORTS,” and “AGREE[D] NEVER TO SUE, AND TO RELEASE FROM LIABILITY, Mammoth . . . for any . . . injury . . . which arises in whole or in part out of [his] . . . participation in the SPORTS . . ., including without limitation those claims based on MAMMOTH’S alleged or actual NEGLIGENCE ….”
II
Procedural Background
Following the accident, Valter sued Mammoth for premises liability and negligence, alleging that Mammoth failed to maintain the ski area in a safe condition and failed to provide adequate warning of the alleged unsafe condition. He reasoned that Peters improperly stopped his snowmobile in front of his path without providing adequate warning.
Mammoth later filed a motion for summary judgment, asserting that Valter’s claims failed as a matter of law for two reasons. It contended his claims were barred under the doctrine of primary assumption of risk because a potential collision with a snowmobile is a risk inherent in skiing and it had not unreasonably increased this risk. It also asserted his claims were barred because, in signing the liability waiver, he had expressly agreed to assume the risk of its negligence. Although Mammoth acknowledged that the waiver would not cover its gross negligence, it argued that Valter could not prove gross negligence here.
Valter opposed the motion. To Mammoth’s argument concerning primary assumption of risk, he contended snowmobiles have nothing to do with skiing and, even if they did, Mammoth increased the risk inherent in skiing in two ways: first, because Mammoth selected a dangerous snowmobile route, as skiers traveling down the popular Stump Alley run are unable to see snowmobiles traveling up St. Moritz and lack adequate warning of snowmobiles; and second, because Peters dangerously deviated from the snowmobile route when he traveled up the center of St. Moritz and up the right (skier’s left) of Stump Alley. To Mammoth’s argument concerning express assumption of risk, Valter contended Mammoth’s conduct rose to the level of gross negligence and so fell outside the scope of the liability waiver. He reasoned that Mammoth was grossly negligent because it failed to provide adequate warnings about snowmobiles, it chose a dangerous snowmobile route, and Peters dangerously deviated from this route.
The trial court granted Mammoth’s motion, agreeing with both of Mammoth’s arguments. Starting with the facts, the court found the undisputed facts showed Mammoth warned skiers about the potential risk of colliding with snowmobiles, adopted a snowmobile safety manual, and required training for employees operating snowmobiles. The court further, among other things, found the undisputed facts showed Peters slowed and then stopped on Stump Alley after exiting St. Moritz, Peters’s snowmobile was in plain view before the collision on a clear and sunny day, snowmobiles are regularly used at ski resorts, and Valter had expressly agreed to assume the risk of colliding with snowmobiles when he signed a liability waiver for his season pass.
The court then turned to Mammoth’s arguments. Beginning with Mammoth’s argument grounded on primary assumption of risk, it found a collision with a plainly visible snowmobile is a risk inherent in skiing, adding “that a snowmobile is a commonly used and essential piece of equipment necessary for the practical operation of a ski mountain.” It further found Mammoth had not increased this inherent risk. While it accepted that Peters might have deviated from the snowmobile route by several feet, it found this detail immaterial and noted that Peters had attempted to yield to downhill skier traffic on Stump Alley, slowed to five miles per hour as he looked for a safe opportunity to cross, and stopped in a plainly visible location before the collision. Turning to Mammoth’s argument premised on express assumption of risk, the court found Valter expressly excused Mammoth for liability for its ordinary negligence. Although it found the waiver would not excuse Mammoth for liability for gross negligence, it concluded Valter could not show gross negligence here.
After the court entered judgment in Mammoth’s favor, Valter timely appealed.
DISCUSSION
I
Standard of Review
A trial court may grant a motion for summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) To meet its burden on summary judgment, a moving defendant must show either that one or more elements of the plaintiff’s causes of action cannot be established or that there is a complete defense to the plaintiff’s case. (Id., subd. (p)(2).) If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists. (Ibid.) A factual issue is material if it could make a difference in the disposition of the motion. (Cal. Rules of Court, rule 3.1350(a)(2).) And a factual issue is triable if “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)
” ‘” ‘We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'” ‘” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.) We also” ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.'” (Ibid.)
II
Express Assumption of Risk
Valter contends neither of the trial court’s grounds for granting Mammoth’s motion for summary judgment are valid. He first asserts the trial court wrongly granted summary judgment on the ground that the risk of colliding with a snowmobile is an inherent risk of skiing. He reasons that the risk of a snowmobile collision is not an inherent risk of skiing and, even if it were, Mammoth’s misconduct increased this risk. He further asserts the court wrongly granted summary judgment on the additional ground that he expressly agreed to assume the risk of Mammoth’s negligence, reasoning that Mammoth’s conduct was grossly negligent and so exceeded the scope of the agreement. Because we conclude no reasonable person could find Mammoth’s conduct rose to the level of gross negligence, we reject Valter’s challenge to the latter ground for granting summary judgment and affirm on that basis.
As a condition of receiving a season pass for Mammoth, Valter expressly agreed to assume the risk of Mammoth’s negligence. In the context of sports, including for skiing, courts have consistently found these types of agreements are valid when they excuse liability for ordinary negligence-that is, for “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754, 759 (City of Santa Barbara) [“a number of cases have upheld agreements insofar as they release liability for future ordinary negligence in the context of sports and recreation programs”]; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [finding Mammoth’s liability waiver valid].) But our Supreme Court has explained that these agreements generally cannot excuse liability for gross negligence-that is, for conduct evidencing “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct.'” ‘” (City of Santa Barbara, at p. 754.)
Applying these principles here, we conclude Valter’s signing of the liability waiver bars him from suing Mammoth for ordinary negligence-which Valter does not dispute. We further conclude Valter cannot show Mammoth’s conduct rose to the level of gross negligence. The undisputed facts show, among other things, that snowmobiles are common at ski resorts, that Mammoth posted signs warning guests that snowmobiles could be encountered at any time, that Valter expressly acknowledged the risk of colliding with a snowmobile and agreed to assume the risk of Mammoth’s negligence, that Mammoth trained Peters on snowmobile safety, that Peters drove his snowmobile slowly and stopped or almost stopped before the collision, that his snowmobile flew an orange flag, and that, in the photographs taken immediately after the accident, no obstacles are shown obstructing a downhill skier’s ability to see Peters and his snowmobile in the area of the collision. Considering the undisputed facts here, we conclude that Mammoth met its burden to show that it is entitled to judgment on the ground of express assumption of risk. We also conclude that Valter has failed to raise any triable issue of material fact to preclude summary judgment. (See Joshi v. Fitness Internat., LLC (2022) 80 Cal.App.5th 814, 828 [“although the existence of gross negligence is a matter generally for the trier of fact [citation], it may be determined as a matter of law on summary judgment in an appropriate case”].)
Although Valter argues Mammoth’s conduct here could be found grossly negligent for several reasons, we find none of his arguments persuasive. He first contends Mammoth could be found grossly negligent because the presence of snowmobiles is not an inherent part of skiing. But whether or not the presence of snowmobiles is an inherent part of skiing, we are at least satisfied that no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles. The undisputed facts, again, show that snowmobiles are common at ski resorts. Mammoth’s former health and safety manager, for instance, explained that in the ski industry, snowmobiles are used “on a daily basis for lift maintenance, lift operations, and for ski patrol emergency transport.” Valter, who said he had skied about a 1,000 days in his lifetime on various mountains, never alleged differently. He instead acknowledged he commonly saw snowmobiles on ski runs that were open to the public. The undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety. Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response. Again, Valter never alleged differently and, on appeal, states he does not disagree “that snowmobiles are very useful and efficient in the operation of a ski resort.” On these undisputed facts, we cannot say that Mammoth’s decision to use snowmobiles evidenced “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct,'” ‘” even though, as Valter asserts elsewhere in his brief, snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers. (City of Santa Barbara, supra, 41 Cal.4th at p. 754.)
Second, Valter suggests Mammoth could be found grossly negligent because it never shared its designated snowmobile routes with its guests. But Mammoth repeatedly cautioned guests about snowmobiles and explained they could be encountered at any time. Signs at the top of the lifts at Mammoth, for instance, explain that snowmobiles “may be encountered at any time.” The Mammoth trail map says the same: Snowmobiles “may be encountered at any time.” And the liability waiver that Valter signed further warned about the presence of snowmobiles and the risk of collisions, stating that Valter “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.” Even Valter agreed “Mammoth provide[d] [him] a warning that [he] may encounter snowmobiles,” though he said Mammoth never mentioned moving snowmobiles. Considering the undisputed facts on this topic, we accept that Valter would have had more information about the potential for encountering snowmobiles had Mammoth shared its snowmobile routes with its guests. But we conclude no reasonable person could find Mammoth grossly negligent simply because it failed to share these maps-a practice that no ski resort, as far as Valter has shown, has adopted. (See Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1028-1030 [no gross negligence as a matter of law, in a case involving a student’s concussion playing football, even though the school district “could have done more to educate students and family” about concussions].)
Third, Valter argues Mammoth could be found grossly negligent because Peters failed to follow Mammoth’s preferred snowmobile route for St. Moritz. According to the preferred snowmobile route, again, Peters should have stayed to his left when going up St. Moritz; then, where St. Moritz meets Stump Alley, made a slight right onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, traveled across Stump Alley and up the left side of Stump Alley. But according to Valter, Peters instead “drove up near the middle of St. Moritz” (rather than the left), “made a looping right turn near the top of St. Moritz at its intersection with Stump Alley” (rather than a slight right), and “intend[ed] to drive up the right side of Stump Alley” (rather than drive across Stump Alley and up the left side of the run). As a result, Valter asserts, Peters was “several yards from where he was supposed to be before trying to cross Stump Alley” at the time of the accident.
But much of Valter’s alleged facts lack evidentiary support. He claims Peters “intend[ed] to drive up the right side of Stump Alley” based on the statements of an officer who spoke with Peters after the accident. But according to the officer, Peters characterized his route before the accident, not the route he intended to follow afterward. Valter further claims Peters ended up several yards off the snowmobile route. But he cites nothing in support and appears to rely only on speculation. He also cites a photograph to show Peters drove near the middle of St. Moritz. But the cited photograph shows Peters’s route along the left side of St. Moritz. Valter appears to characterize the photograph differently because it shows open snow to the left on part of Peters’s path. But as the Mammoth trail map and snowmobile route map show, snowmobile drivers going up St. Moritz will-even if they stay to their far left on St. Moritz-have open snow to their left as they approach Stump Alley. This area, however, is not part of St. Moritz. It is instead part of a different run, Patrolmen’s, that branches off St. Moritz immediately after St. Moritz branches off Stump Alley. As the photograph of Peters’s path shows, moreover, because of trees, Peters could not have driven farther to the left at the point where St. Moritz meets Stump Alley.
In any event, even if Peters deviated from the snowmobile route and ended up “several yards” off the route, we find no reasonable person could find his conduct demonstrated gross negligence. Even assuming that Peters’s driving left him somewhat off the designated route, the undisputed facts still show he exercised a degree of caution: He traveled slowly up the mountain, reduced his speed to five miles per hour as he exited St. Moritz, continued at five miles per hour on Stump Alley, and, after seeing Valter, slowed further and either stopped or almost stopped. Valter does not dispute these facts. The photograph depicting Peters’s path, moreover, shows, if nothing else, that Peters could not have driven farther to the left at the point where St. Moritz meets Stump Alley. And photographs taken immediately after the collision show that Peters’s snowmobile flew an orange flag and that no apparent obstacle obstructed a downhill skier’s ability to see Peters and his snowmobile while on Stump Alley. On these undisputed facts, we conclude no reasonable person could find that Peters’s conduct evidenced either a want of even scant care or an extreme departure from the ordinary standard of conduct, even if, as Valter asserts, Peters was “several yards” off the designated route at the time of the collision.
We find that true even though Valter suggests that Mammoth could be found grossly negligent even if Peters were “mere inches” off the designated route. Valter bases his point on our court’s opinion in Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546. In that case, a gym deliberately placed a piece of exercise equipment less than four feet behind a treadmill, even though it knew the treadmill manufacturer’s manual said to provide a minimum six-foot clearance behind the treadmill for user safety. (Id. at pp. 549, 551, 558.) A gym member later sued the gym for negligence after falling off the treadmill and hitting her head on the equipment behind it. (Id. at pp. 548-549.) But the trial court found her claims failed as a matter of law on summary judgment, reasoning that the gym member had signed a liability waiver and the gym’s conduct could not constitute gross negligence. (Id. at p. 553.) On appeal, we reversed. We found a jury reasonably could find the facts demonstrated gross negligence, including by finding that it is standard practice in the industry to provide a minimum six-foot safety zone behind treadmills, that the gym failed to follow this standard practice to accommodate more members to make more money, that the gym took no mitigation measures, and that, as an expert implied, the gym’s failure to provide the standard safety zone was an extreme departure from the ordinary standard of conduct. (Id. at pp. 557-558, 567.)
Attempting to apply Jimenez‘s reasoning here, Valter suggests that if “mere inches” could support a claim of gross negligence in that case, then surely several yards could support a claim of gross negligence here. We find differently. To start, as noted, Valter cites no facts showing that Peters was several yards off the designated route at the time of the accident. But even setting that aside, we find Jimenez is distinguishable on several levels. First, unlike the plaintiff there, Valter cites no expert opinion suggesting that a “mere inches” deviation-or even a “several yards” deviation-from a designated snowmobile path is an extreme departure from the ordinary standard of conduct. And second, unlike the defendant in Jimenez, Mammoth implemented various safety precautions to limit collision risks, including by warning guests about snowmobiles, training snowmobile operators, and using designated snowmobile routes. We find Jimenez of limited help to Valter for these reasons.
Next, Valter asserts Mammoth could be found grossly negligent in using St. Moritz as one of its designated snowmobile routes. He reasons that Mammoth should have chosen a different route because it knew Stump Alley was a popular run, knew skiers “coming down Stump Alley ‘hug’ the tree line on the left in order to turn left onto St. Moritz,” acknowledged that these trees would have grown substantially since the snowmobile routes were initially established around 1989, knew snowmobiles on St. Moritz pose a potential danger to skiers, knew other routes were available, and never conducted any safety, feasibility, or visibility studies for the route. He adds that Mammoth’s new snowmobile routes no longer use St. Moritz (though he says the “change was not made in response to Valter’s injury”) and that Mammoth now uses snowmobile corridors that are marked off with stakes and ropes.
But although we accept that Mammoth could have taken more precautions to ensure skier safety before Valter’s injury, its failure to do so cannot support a claim for gross negligence here. Mammoth, again, had taken several steps to limit potential collisions on St. Moritz before Valter’s injury, including warning guests about snowmobiles, requiring training for its snowmobile drivers, and requiring these drivers to yield to guests, to fly an orange flag and use headlights, and to stay to their left while driving up St. Moritz-which would place them on the opposite side of the run from skiers who were (as Valter puts it) hugging the tree line coming down Stump Alley to St. Moritz. And while Valter claims Mammoth should have used a route other than St. Moritz, he has not shown, or even alleged, that any alternate route would have been safer.
Nor has Valter shown that Mammoth’s process for selecting St. Moritz as one of its snowmobile routes was inadequate. Mammoth may not have conducted formal studies about the use of St. Moritz, but its personnel still considered potential routes that would, in their view, maximize safety and then tested their conclusions about best routes. For the St. Moritz-to-Stump Alley route, for example, Mammoth personnel skied down Stump Alley while a snowmobile was on St. Moritz and “determined that it was very easy to see the snowmobile.” And in the decades before Valter’s injury, nothing in the record shows the use of St. Moritz harmed a single skier or snowboarder. Indeed, the record shows only one other snowmobile collision in the previous 40 years at Mammoth, with the other collision occurring on a hill after a beginner skier lost control and hit a ski school’s snowmobile.
Mammoth, to be sure, could have taken even more precautions to ensure skier safety before Valter’s injury. As Valter notes, for example, Mammoth could have enhanced safety further through the earlier adoption of snowmobile corridors. But he cites not one ski resort that used snowmobile corridors before the time of his injury, and we find this limited consideration insufficient to support a potential claim for gross negligence. Considering the undisputed facts here, we conclude no reasonable juror could find Mammoth’s use of St. Moritz in its snowmobile route evidenced either a want of even scant care or an extreme departure from the ordinary standard of conduct. And we find that so even though we accept, as Valter argues, that Mammoth did not pursue all possible options for limiting collision risks. (See Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 361 [no gross negligence as a matter of law even though the city did not “pursue all possible options” when attempting to save a swimmer].)
Lastly, Valter contends several triable issues of material fact preclude summary judgment. He starts with the visibility of the snowmobile. He asserts Peters’s deviation from the route and failure to be “at the left side of St. Moritz when he reached the top of that run” endangered skiers “turning left around a blind corner onto St. Moritz.” Explaining the blind corner, he states a skier coming down Stump Alley cannot see “down much of St. Moritz” because of the angle at which St. Moritz meets Stump Alley, trees, and other obstacles. He adds that Peters’s snowmobile was dark blue and so could be “easily lost in the shadows covering the run [St. Moritz] at the time.”
But Valter’s allegations cannot be squared with the undisputed facts. Although Valter claims Peters failed to be at the left side of St. Moritz at the top of that run, the photograph showing Peters’s route-which Valter relies on-shows Peters could not have been farther to the left at that location. Although Valter further claims Peters’s snowmobile could have been lost in the shadows present at the time, the photograph he cites purportedly showing these shadows shows clear skies and white snow, with the only shadow depicted being the photographer’s own. And although Valter notes some obstacles may prevent a skier from seeing “down much of St. Moritz” while coming down Stump Alley, Peters’s snowmobile was not on St. Moritz at the time of the accident. Nor was it “coming around a blind corner when it struck him,” as Valter repeatedly asserts in his reply brief. The photograph of Peters’s route, again, shows Peters entered Stump Alley from the far left of St. Moritz and then traveled up Stump Alley before the accident. Other photographs show Peters’s snowmobile was on Stump Alley at the time of the accident and not obstructed by any apparent obstacles. And all witnesses who described Peters’s speed explained that he traveled slowly up Stump Alley and then stopped or almost stopped before Valter skied into him. Valter has failed to show a triable issue of material fact in these circumstances.
Nor are we persuaded to find differently merely because, as Valter notes, snowmobiles are not as loud and massive as certain other snow equipment-namely, snowcats. Valter discusses snowcats in an attempt to distinguish our court’s earlier decision in Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, a case involving a skier who was injured after colliding with a snowcat that was 30 feet long and 18 feet wide and had a safety beacon, warning lights, and an audible alarm. (Id. at pp. 348, 362.) Although the snowcat in that case turned without using a turn signal before the collision, we ultimately found other warnings about the snowcat’s presence (including the snowcat’s large size and loud sound) barred the skier from claiming that Mammoth was grossly negligent as a matter of law. (Id. at p. 363.) Attempting to distinguish the case, Valter asserts a snowmobile is not as obvious as a snowcat. But while that is true, our standard is not whether a snowmobile is comparable to a snowcat. And on the undisputed facts here-which, among other things, show that snowmobiles are common at ski resorts, that Peters drove his snowmobile slowly and stopped (or almost stopped) before the collision, that the snowmobile flew an orange flag, and that no apparent obstacle obstructed a downhill skier’s ability to see Peters and his snowmobile on Stump Alley-we conclude that no reasonable person could find Mammoth grossly negligent.
Valter alternatively, in his reply brief, argues he lacked sufficient time to avoid Peters even if Peters and his snowmobile were plainly visible. That is so, he reasons, because he was skiing at about 30 miles per hour (or about 44 feet per second)[1] and Peters testified that he saw Valter when he was about 80 to 120 feet away-which would mean Valter only had two to three seconds to adjust to avoid Peters. But Valter fails to account for several facts that undercut his argument. First, in his own telling, he was traveling at a speed less than 30 miles per hour, as he was decelerating from 30 miles per hour at the time of the collision. And second, according to Peters’s undisputed testimony, Valter managed to make three or four controlled turns after Peters saw him- demonstrating that the issue is more that Valter failed to notice Peters than that he lacked time to avoid Peters. At any rate, because Valter raised this argument for the first time in his reply brief, and without good cause, we find the argument forfeited. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
In the end, none of Valter’s arguments-whether considered individually or collectively-potentially show Mammoth was grossly negligent. Again, we accept that snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers. We accept too that Mammoth could have done more to protect skiers from potential snowmobile collisions. But the question is not simply whether a reasonable person could find that Mammoth could have done more. Of course it could have. And no matter the precautions Mammoth implements, someone could always imagine some additional precaution or some additional study that could prove helpful. But that is not the relevant inquiry. It is instead whether a reasonable person could find that Mammoth’s conduct demonstrated “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct.'” “‘ (City of Santa Barbara, supra, 41 Cal.4th at p. 753.) And on this question, we find the answer is no as a matter of law. (See Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, supra, 25 Cal.App.5th at pp. 363-365 [no gross negligence as a matter of law even though the snowcat operator failed to use a turn signal before turning]; Brown v. El Dorado Union High School Dist., supra, 76 Cal.App.5th at p. 1030 [no gross negligence as a matter of law even though the school district “could have done more”]; Decker v. City of Imperial Beach, supra, 209 Cal.App.3d at p. 361 [no gross negligence as a matter of law even though the city did not “pursue all possible options”].)
DISPOSITION
The judgment is affirmed. Mammoth is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: DUARTE, Acting P. J., MESIWALA, J.
———
Notes:
[1] One mile is 5,280 feet. Someone traveling 30 miles per hour is traveling 158,400 feet per hour, 2,640 feet per minute, and 44 feet per second.
———
Insurance companies are fighting policyholders rather than plaintiffs in the recreational industry field.
Posted: August 28, 2023 Filed under: Activity / Sport / Recreation, Insurance, Minnesota | Tags: Conditions Precedent, Cowboy Softball, exclusions, Insurance, insurance coverage, Meech Bucking Bull Ranch in Sebeka, Meeches, Minnesota, Scottsdale Insurance Leave a commentInsurance companies are attempting to avoid liability in OR cases by denying coverage. I’ve seen 4 in the past year in outdoor recreation.
Scottsdale Ins. Co. v. Meech (D. Minn. 2023)
State: Minnesota, United States District Court, D. Minnesota
Plaintiff: Scottsdale Insurance Company
Defendant: Troy Meech; Peggy Meech; and Scott Sellers
Plaintiff Claims: Whether there is coverage for an underlying claim under the policy
Defendant Defenses: There is coverage
Holding: For the Plaintiff Insurance Company
Year: 2023
Summary
Insurance company asked court for judgement saying there was no coverage under the policy for the claim. The coverage was denied because the exclusions in the policy were clear. The ranch owner is going to pay the claim out of their own pocket.
Facts
Scott Sellers is the plaintiff in the state court lawsuit against the defendant Meeches, Troy & Peggy. In this case, the plaintiff, the party starting the lawsuit is Scottsdale Insurance, the insurance company that issued a policy to the Meeches. The defendants are all three of the parties in the state court case, Meeches & Seller, the defendants and the plaintiff.
The defendants owned a ranch and purchased an insurance policy from Scottsdale. There is a state court case filed by Sellers for his injuries in the softball game. During the lawsuit in state court, the insurance company filed this action in federal court asking a court to determine if the insurance company had to defend and pay any claim based on the lawsuit in the state court.
The Meeches own and operate a ranch at which they host an annual event called the “Nimrod Bull Bash.” One of the activities during the event is a game of “Cowboy Softball,” during which participants play softball while bulls are present on the field. Defendant Scott Sellers is pursuing a state-court action against the Meeches for personal injuries that he suffered during a Cowboy Softball game in September 2021.
The insurance policy that Scottsdale issued to the Meeches contains two exclusions relevant to this case: an exclusion for “Athletic or Sports Participants” and a “Special Event Participant Exclusion.” The Meeches do not dispute that these exclusions preclude coverage for any injuries suffered by a participant in the Cowboy Softball game. The Meeches likewise do not dispute that Sellers in fact participated in the game. Instead, the Meeches contend that Sellers cannot be considered a participant because he was not authorized to play. The Meeches require all participants to register in advance and sign a waiver. Sellers did neither; instead, according to the Meeches, he entered the field without consent from the Meeches or any agent of the Meeches.
Once this case was filed in the Federal District Court of Minnesota, the insurance company filed a motion for summary judgement. The court then had to interpret the contract, the insurance policy and found there was no coverage.
Analysis: making sense of the law based on these facts.
This is a simple decision with one paragraph explaining there is no coverage.
There were two exclusions in the policy that the court found denied coverage. The Athletic or Sports Participants exclusion and the Special Event Participant exclusion.
The Athletic or Sports Participants exclusion stated there was no coverage for injuries sustained on the property for any person practicing or participating in sports, athletic contest, or exhibition. The name Cowboy Softball ended any argument about whether or not it was a sports event.
The athletic contest exclusion was again covered by the name and the activity. Playing softball. Coverage would have been excluded whether or not there were bulls on the field.
Unfortunately for the Meeches, however, coverage is precluded regardless of whether Sellers’s participation in the softball game was authorized. The language of the “Athletic or Sports Participants” exclusion precludes coverage for “‘bodily injury’ to any person arising out of practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” Similarly, the “Special Event Participant Exclusion” precludes coverage for “‘bodily injury . . . arising out of . . . [t]he practicing for or participation in any athletic event, contest, [or] game . . . covered by this policy.” The former exclusion does not define “participant”; the latter includes a broad definition of “participant,” which includes performers, volunteers, and “any other person taking part” in the activities covered by the exclusion. The language of these exclusions plainly covers any person who actually participated in the Cowboy Softball game regardless of whether the person was authorized to do so; there is no language that distinguishes between authorized and unauthorized participants.
So Now What?
Read your policy.
Confirm what you believe is covered under your policy with the insurance agent or broker that sold you the policy.
If you have a doubt about coverage, whether something is covered, IN ADVANCE confirm coverage with an email or letter. A PHONE CALL is worthless now days, unless you are legally allowed to record the phone call. (Even if your state allows you to record phone calls, if the call is to someone out of your state, which does not allow you to record phone calls, your recorded call is worthless.) Get it in writing
Understand your Exclusions in your policies. Exclusions are specific events, fact patterns or risks your policy will not provide defense or coverage for.
Understand your Prerequisites or condition’s precedent in your policy. Condition’s precedent are specific requirements you must meet before any coverage is available. In OR cases a condition precedent found in many policies is the requirement you have a release signed. No release, no coverage.
Whether you are right or wrong, insurance pays to prove you are right or pay if you are wrong. Make sure you have a good policy that covers what you do.
For more articles like this see:
To Review Case Law concerning this issue see:
Atain Specialty Ins Co v Adventure Facility Concepts Mgmt ND Ill 2023
MidContinent Excess Surplus Ins Co v Experiential Sys ND Ohio 2022
Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447
I’m currently involved in two cases that I cannot write about yet.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
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Scottsdale Ins. Co. v. Meech (D. Minn. 2023)
Posted: August 28, 2023 Filed under: Activity / Sport / Recreation, Insurance, Minnesota | Tags: Conditions Precedent, Cowboy Softball, exclusions, Insurance, insurance coverage, Meech Bucking Bull Ranch in Sebeka, Meeches, Minnesota, Scottsdale Insurance Leave a commentScottsdale Ins. Co. v. Meech (D. Minn. 2023)
SCOTTSDALE INSURANCE COMPANY, Plaintiff,
v.
TROY MEECH; PEGGY MEECH; and SCOTT SELLERS, Defendants.
No. 22-CV-0454 (PJS/LIB)
United States District Court, D. Minnesota
April 25, 2023
Alexander V. Tibor and Kurt M. Zitzer, MEAGHER & GEER, P.L.L.P., for plaintiff.
Troy Meech and Peggy Meech, defendants pro se.
ORDER
PATRICK J. SCHILTZ, CHIEF JUDGE
Plaintiff Scottsdale Insurance Company (“Scottsdale”) brought this action seeking a declaration that it owes no duty to defend or indemnify its insureds, Troy and Peggy Meech, in a pending state-court personal-injury action. This matter is before the Court on Scottsdale’s motion for summary judgment. For the reasons stated on the record at the April 24, 2023, hearing, and briefly outlined below, Scottsdale’s motion is granted.[1]
The Meeches own and operate a ranch at which they host an annual event called the “Nimrod Bull Bash.” ECF No. 43 at 2. One of the activities during the event is a game of “Cowboy Softball,” id., during which participants play softball while bulls are present on the field. Defendant Scott Sellers is pursuing a state-court action against the Meeches for personal injuries that he suffered during a Cowboy Softball game in September 2021. See ECF No. 1-1 (state-court complaint).
The insurance policy that Scottsdale issued to the Meeches contains two exclusions relevant to this case: an exclusion for “Athletic or Sports Participants” and a “Special Event Participant Exclusion.” ECF No. 1-2 at 39, 69. The Meeches do not dispute that these exclusions preclude coverage for any injuries suffered by a participant in the Cowboy Softball game. The Meeches likewise do not dispute that Sellers in fact participated in the game. Instead, the Meeches contend that Sellers cannot be considered a participant because he was not authorized to play. The Meeches require all participants to register in advance and sign a waiver. ECF No. 43 at 1. Sellers did neither; instead, according to the Meeches, he entered the field without consent from the Meeches or any agent of the Meeches.
Unfortunately for the Meeches, however, coverage is precluded regardless of whether Sellers’s participation in the softball game was authorized. The language of the “Athletic or Sports Participants” exclusion precludes coverage for “‘bodily injury’ to any person arising out of practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” ECF No. 1-2 at 39. Similarly, the “Special Event Participant Exclusion” precludes coverage for “‘bodily injury . . . arising out of . . . [t]he practicing for or participation in any athletic event, contest, [or] game . . . covered by this policy.” ECF No. 1-2 at 69. The former exclusion does not define “participant”; the latter includes a broad definition of “participant,” which includes performers, volunteers, and “any other person taking part” in the activities covered by the exclusion. ECF No. 1-2 at 69. The language of these exclusions plainly covers any person who actually participated in the Cowboy Softball game regardless of whether the person was authorized to do so; there is no language that distinguishes between authorized and unauthorized participants. Accordingly, the Court grants Scottsdale’s motion for summary judgment.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Plaintiff’s motion for summary judgment [ECF No. 38] is GRANTED.
2. The Court DECLARES that, under Policy Number CPS7431908, effective from August 27, 2021 to August 27, 2022, plaintiff Scottsdale Insurance Company owes no duty to defend or indemnify defendants Scott Meech and Peggy Meech with respect to claims asserted against them by defendant Scott Sellers in Wadena County Case No. 80-CV-22-905.
4
LET JUDGMENT BE ENTERED ACCORDINGLY.
———
Notes:
[1]Defendant Scott Sellers did not respond to Scottsdale’s motion and did not appear at the hearing.
———
Maine Good Samaritan Statutes
Posted: August 24, 2023 Filed under: Maine | Tags: Good Samaritan law, Good Samaritan Statutes, MAINE 2 Comments§ 164. Immunity from civil liability 1
§ 2150-C. Automated external defibrillators; immunity from civil liability 1
§ 2150-G. Epinephrine autoinjectors; emergency administration 3
§ 3108. Asthma inhalers and epinephrine autoinjectors 5
§ 6305. Epinephrine autoinjectors; guidelines; emergency administration 5
§ 164. Immunity from civil liability
Notwithstanding any inconsistent provisions of any public or private and special law, any person who voluntarily, without the expectation of monetary or other compensation from the person aided or treated, renders first aid, emergency treatment or rescue assistance to a person who is unconscious, ill, injured or in need of rescue assistance, shall not be liable for damages for injuries alleged to have been sustained by such person nor for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such first aid, emergency treatment or rescue assistance, unless it is established that such injuries or such death were caused willfully, wantonly or recklessly or by gross negligence on the part of such person. This section shall apply to members or employees of nonprofit volunteer or governmental ambulance, rescue or emergency units, whether or not a user or service fee may be charged by the nonprofit unit or the governmental entity and whether or not the members or employees receive salaries or other compensation from the nonprofit unit or the governmental entity. This section shall not be construed to require a person who is ill or injured to be administered first aid or emergency treatment if such person objects thereto on religious grounds. This section shall not apply if such first aid or emergency treatment or assistance is rendered on the premises of a hospital or clinic. [1977, c. 69 (AMD).]
History:
1969, c. 565, (NEW). 1975, c. 452, § 1 (RPR). 1975, c. 679, § 1 (AMD). 1977, c. 69, (AMD).
ME Rev. Stat. Tit. 14 Sec. 164 Immunity from civil liability (Maine Revised Statutes (2022 Edition))
§ 2150-C. Automated external defibrillators; immunity from civil liability
1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. “Automated external defibrillator” or “AED” means a medical device that combines a heart monitor and a defibrillator approved by the United States Food and Drug Administration that:
(1) Is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia;
(2) Is capable of determining, without intervention by an operator, whether defibrillation should be performed on an individual; and
(3) Upon determination that defibrillation should be performed, automatically charges and requests delivery of an electrical impulse to an individual’s heart. [2007, c. 267, §2 (RPR).]
B. [2007, c. 267, §2 (RP).]
2. Prohibition.
3. Duties.
4. Penalties.
5. Effect on other law.
6. Immunity. The following persons and entities are immune from civil liability for damages relating to the use, possession or purchase of an AED and arising out of acts or omissions relating to preparing for and responding to suspected sudden cardiac arrest emergencies absent gross negligence or willful or wanton misconduct:
A. Any person or entity that acquires an AED; [2007, c. 267, §2 (NEW).]
B. Any person or entity that owns, manages or is otherwise responsible for the premises on which an AED is located; [2007, c. 267, §2 (NEW).]
C. Any person who retrieves an AED in response to a perceived sudden cardiac arrest emergency; [2007, c. 267, §2 (NEW).]
D. Any person who uses, attempts to use or fails to use an AED in response to a perceived sudden cardiac arrest emergency; [2007, c. 267, §2 (NEW).]
E. Any physician or other authorized person who issues a prescription for the purchase of an AED; [2007, c. 267, §2 (NEW).]
F. Any person or entity that is involved with the design, management or operation of an AED program; and [2007, c. 267, §2 (NEW).]
G. Any person or entity that provides instruction in the use of an AED. [2007, c. 267, §2 (NEW).]
History:
2001, c. 364, § 1 (NEW). 2007, c. 267, § 2 (RPR).
ME Rev. Stat. Tit. 22 Sec. 2150-C Automated external defibrillators; immunity from civil liability (Maine Revised Statutes (2022 Edition))
§ 2150-F. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings. [2015, c. 231, §1 (NEW).]
1. Administer. “Administer” means to apply an epinephrine autoinjector directly to a human body.
2. Authorized entity. “Authorized entity” means any entity, organization or place of employment, other than a school under Title 20-A, section 6305, in connection with or at which allergens capable of causing anaphylaxis may be present, including but not limited to recreation camps, colleges, universities, day care facilities, youth sports leagues, amusement parks, restaurants and sports arenas.
3. Epinephrine autoinjector. “Epinephrine autoinjector” means a single-use device used for the automatic injection of a premeasured dose of epinephrine into a human body or another single-use epinephrine delivery system approved by the federal Food and Drug Administration for public use.
4. Health care practitioner. “Health care practitioner” means an individual who is licensed, registered or otherwise authorized in the appropriate jurisdiction to prescribe and administer drugs in the course of professional practice.
History:
Amended by 2020, c. 560, §3, eff. 2/21/2020. Added by 2015, c. 231, §1, eff. 10/15/2015.
ME Rev. Stat. Tit. 22 Sec. 2150-F Definitions (Maine Revised Statutes (2022 Edition))
§ 2150-G. Epinephrine autoinjectors; emergency administration
1. Prescribing to an authorized entity permitted. A health care practitioner may prescribe epinephrine autoinjectors in the name of an authorized entity for use in accordance with this section, and pharmacists and health care practitioners may dispense epinephrine autoinjectors pursuant to a prescription issued in the name of an authorized entity. A prescription authorized pursuant to this section is valid for 2 years.
2. Authorized entities permitted to maintain supply. An authorized entity may acquire and stock a supply of epinephrine autoinjectors pursuant to a prescription issued under subsection 1. An epinephrine autoinjector must be stored in a location readily accessible in an emergency and in accordance with the instructions for use for the epinephrine autoinjector and any additional requirements that may be established by the department. An authorized entity shall designate employees or agents who have completed the training required under subsection 4 to be responsible for the storage, maintenance, control and general oversight of epinephrine autoinjectors acquired by the authorized entity.
3. Use of epinephrine autoinjectors. An employee or agent of an authorized entity who has completed the training required by subsection 4 may use epinephrine autoinjectors prescribed pursuant to subsection 1 to:
A. Provide an epinephrine autoinjector to a person the employee or agent believes in good faith is experiencing anaphylaxis, or the parent, guardian or caregiver of such a person, for immediate administration, regardless of whether the person has a prescription for an epinephrine autoinjector or has previously been diagnosed with an allergy; and [2015, c. 231, §1 (NEW).]
B. Administer an epinephrine autoinjector to a person the employee or agent believes in good faith is experiencing anaphylaxis, regardless of whether the person has a prescription for an epinephrine autoinjector or has previously been diagnosed with an allergy. [2015, c. 231, §1 (NEW).]
4. Training. An employee or agent of an authorized entity shall complete an anaphylaxis training program and shall complete additional training at least every 2 years thereafter. The training must be conducted by a nationally recognized organization experienced in training nonprofessionals in emergency health treatment or an entity or individual approved by the department. The department may approve specific entities or individuals or may approve classes of entities or individuals to conduct training. Training may be conducted online or in person and, at a minimum, must cover:
A. How to recognize signs and symptoms of severe allergic reactions, including anaphylaxis; [2015, c. 231, §1 (NEW).]
B. Standards and procedures for the storage and administration of an epinephrine autoinjector; and [2015, c. 231, §1 (NEW).]
C. Emergency follow-up procedures. [2015, c. 231, §1 (NEW).]
The entity or individual that conducts the training shall issue a certificate, on a form developed or approved by the department, to each person who successfully completes the anaphylaxis training program.
5. Immunity. The following entities are not liable for any injuries or related damages that result from any act or omission of the entity committed in good faith pursuant to this section unless it is established that the injuries or related damages were caused willfully, wantonly or recklessly or by gross negligence:
A. A health care practitioner that prescribes epinephrine autoinjectors in accordance with subsection 1; [2015, c. 231, §1 (NEW).]
B. A pharmacist or health care practitioner that dispenses epinephrine autoinjectors in accordance with subsection 1; [2015, c. 231, §1 (NEW).]
C. An authorized entity that acquires and stocks epinephrine autoinjectors or designates employees or agents to be responsible for storage, maintenance, control and general oversight of epinephrine autoinjectors in accordance with subsection 2; [2015, c. 231, §1 (NEW).]
D. An employee or agent of an authorized entity who has completed the training required by subsection 4 who provides an epinephrine autoinjector to a person pursuant to subsection 3, paragraph A or who administers an epinephrine autoinjector to a person in accordance with subsection 3, paragraph B; and [2015, c. 231, §1 (NEW).]
E. An individual or entity that conducts training in accordance with subsection 4. [2015, c. 231, §1 (NEW).]
The administration of an epinephrine autoinjector in accordance with this section is not the practice of medicine or any other profession that otherwise requires licensure.
This subsection does not eliminate, limit or reduce any other immunity or defense that may be available under the laws of this State, including that provided under Title 14, section 164.
An authorized entity located in this State is not liable for any injuries or related damages that result from the provision or administration of an epinephrine autoinjector outside of this State if the authorized entity would not have been liable for such injuries or related damages had the provision or administration occurred within this State.
History:
Added by 2015, c. 231, §1, eff. 10/15/2015.
ME Rev. Stat. Tit. 22 Sec. 2150-G Epinephrine autoinjectors; emergency administration (Maine Revised Statutes (2022 Edition))
§ 2496. Rules and policies
1. Department rulemaking. The department is authorized and empowered to make and enforce all necessary rules and regulations for the administration of this chapter, and may rescind or modify such rules and regulations from time to time as may be in the public interest, insofar as such action is not in conflict with any of the provisions of this chapter. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
2. Youth camps; emergency medication. A youth camp must have a written policy authorizing campers to self-administer emergency medication, including, but not limited to, an asthma inhaler or an epinephrine autoinjector as defined in section 2150-F, subsection 3. The written policy must include the following requirements:
A. A camper who self-administers emergency medication must have the prior written approval of the camper’s primary health care provider and the camper’s parent or guardian; [2005, c. 140, §1 (NEW).]
B. The camper’s parent or guardian must submit written verification to the youth camp from the camper’s primary health care provider confirming that the camper has the knowledge and the skills to safely self-administer the emergency medication in camp; [2009, c. 211, Pt. A, §9 (AMD).]
C. The youth camp health staff must evaluate the camper’s technique to ensure proper and effective use of the emergency medication in camp; and [2009, c. 211, Pt. A, §9 (AMD).]
D. The emergency medication must be readily available to the camper. [2005, c. 140, §1 (NEW).]
History:
Amended by 2020, c. 560, §4, eff. 2/21/2020. 1975, c. 496, § 3 (NEW). 1977, c. 694, § 351 (AMD). 1999, c. 727, § 1 (AMD). 2005, c. 140, § 1 (RPR). 2009, c. 211, Pt. A, §9 (AMD). MRSA T.22 ., §2496 (AMD).
ME Rev. Stat. Tit. 22 Sec. 2496 Rules and policies (Maine Revised Statutes (2022 Edition))
§ 3108. Asthma inhalers and epinephrine autoinjectors
Municipal employees and volunteers that operate or assist in any municipal recreational program or camp may receive training on how to administer asthma inhalers and epinephrine autoinjectors as defined in Title 22, section 2150-F, subsection 3. Municipal employees and volunteers may possess and administer prescribed asthma inhalers and epinephrine autoinjectors in order to provide emergency aid. [2019, c. 560, §5 (AMD).]
History:
Amended by 2020, c. 560, §5, eff. 2/21/2020. 2007, c. 588, § 1 (NEW).
ME Rev. Stat. Tit. 30-A Sec. 3108 Asthma inhalers and epinephrine autoinjectors (Maine Revised Statutes (2022 Edition))
§ 6305. Epinephrine autoinjectors; guidelines; emergency administration
1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. “Collaborative practice agreement” means a written and signed agreement between a physician licensed in this State or a school health advisor under section 6402-A and a school nurse under section 6403-A that provides for the prescription of epinephrine autoinjectors by the physician or school health advisor and administration of epinephrine autoinjectors by a school nurse or designated school personnel to students during school or a school-sponsored activity under emergency circumstances involving anaphylaxis. [2013, c. 526, §1 (NEW).]
B. “Designated school personnel” means those employees, agents or volunteers of a school administrative unit or an approved private school designated by a collaborative practice agreement between a physician licensed in this State or a school health advisor under section 6402-A and a school nurse under section 6403-A who have completed the training required by rule to provide or administer an epinephrine autoinjector to a student. [2013, c. 526, §1 (NEW).]
C. “Epinephrine autoinjector” means a single-use device used for the automatic injection of a premeasured dose of epinephrine into a human body or another single-use epinephrine delivery system approved by the federal Food and Drug Administration for public use. [2019, c. 560, §2 (AMD).]
D. “School” means a public or approved private school. [2013, c. 526, §1 (NEW).]
2. Collaborative practice agreement; adoption authorized. A school administrative unit or an approved private school may authorize adoption of a collaborative practice agreement for the purposes of stocking and administering epinephrine autoinjectors as provided under this section. The administration of an epinephrine autoinjector in accordance with this section is not the practice of medicine.
3. Collaborative practice agreement; authority. A collaborative practice agreement permits a physician licensed in this State or school health advisor under section 6402-A to prescribe an epinephrine autoinjector and direct a school nurse under section 6403-A to administer an epinephrine autoinjector in good faith to any student experiencing anaphylaxis during school or a school-sponsored activity. Pursuant to a collaborative practice agreement, a physician licensed in this State or school health advisor under section 6402-A may authorize the school nurse under section 6403-A during school or a school-sponsored activity to designate other school personnel with training required by rule to administer an epinephrine autoinjector if the school nurse is not present when a student experiences anaphylaxis.
4. Collaborative practice agreement; terms and provisions. A collaborative practice agreement must include the following information:
A. Name and physical address of the school; [2013, c. 526, §1 (NEW).]
B. Identification and signatures of the physician or school health advisor under section 6402-A and school nurse under section 6403-A who are parties to the collaborative practice agreement, the dates the agreement is signed by each party and the beginning and end dates of the period of time within which the agreement is in effect; and [2013, c. 526, §1 (NEW).]
C. Any other information considered appropriate by the physician or school health advisor under section 6402-A and school nurse under section 6403-A. [2013, c. 526, §1 (NEW).]
5. Use of epinephrine autoinjectors without a collaborative practice agreement. The governing body of a school administrative unit or an approved private school may authorize a school nurse under section 6403-A and designated school personnel to administer an epinephrine autoinjector to a student in accordance with a prescription specific to the student on file with the school nurse and in accordance with section 254, subsection 5. The administration of an epinephrine autoinjector in accordance with this subsection is not the practice of medicine.
6. Manufacturer or supplier arrangement. A school administrative unit or an approved private school may enter into an arrangement with a manufacturer of epinephrine autoinjectors or a 3rd-party supplier of epinephrine autoinjectors to obtain epinephrine autoinjectors at fair market prices or reduced prices or for free.
7. Purchase from licensed pharmacies. A collaborative practice agreement under this section may provide that a school administrative unit or an approved private school may purchase epinephrine autoinjectors from a pharmacy licensed in this State.
8. Guidelines. By December 1, 2015 and as needed after that date, the department in consultation with the Department of Health and Human Services shall develop and make available to all schools guidelines for the management of students with life-threatening allergies. The guidelines must include, but are not limited to:
A. Guidelines regarding education and training for school personnel on the management of students with life-threatening allergies, including training related to the administration of an epinephrine autoinjector; [2013, c. 526, §1 (NEW).]
B. Procedures for responding to life-threatening allergic reactions; [2013, c. 526, §1 (NEW).]
C. A process for the development of individualized health care and allergy action plans for students with known life-threatening allergies; and [2013, c. 526, §1 (NEW).]
D. Protocols to prevent exposure to allergens. [2013, c. 526, §1 (NEW).]
9. Plan. By September 1, 2016 and as needed after that date, the governing body of a school administrative unit or an approved private school shall:
A. Implement a protocol based on the guidelines developed pursuant to subsection 8 for the management of students with life-threatening allergies enrolled in the schools under its jurisdiction; and [2013, c. 526, §1 (NEW).]
B. Make the protocol under paragraph A available on the governing body’s publicly accessible website or the publicly accessible website of each school under the governing body’s jurisdiction or, if those websites do not exist, make the protocol publicly available through other means as determined by the governing body. [2013, c. 526, §1 (NEW).]
The governing body of the school administrative unit or the approved private school shall annually attest to the department that the schools under its jurisdiction are implementing the protocol in accordance with the provisions of this subsection.
History:
Amended by 2020, c. 560, §2, eff. 2/21/2020. Added by 2014, c. 526, §1, eff. 7/31/2014.
ME Rev. Stat. Tit. 20-A Sec. 6305 Epinephrine autoinjectors; guidelines; emergency administration (Maine Revised Statutes (2022 Edition))
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Again, a bad response to the accident and poorly written release, if you can call it that, wiped out all defenses to the lawsuit.
Posted: August 21, 2023 Filed under: Assumption of the Risk, California, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue), Youth Camps | Tags: assumption of the risk, Dressage, Equine, Foxfield Riding School, Gross negligence, horseback riding, Inherent Risk, Ordinary Negligence, Release, Sleepaway Camp, Waiver Leave a commentThe way the plaintiff was treated post injury, you could see that litigation was coming.
Browne v. Foxfield Riding Sch. (Cal. App. 2023)
State: California; California Court of Appeals, Second District, Sixth Division
Plaintiff: Ava Browne, through her mother, Kelly Browne
Defendant: Foxfield Riding School and riding instructor Katelyn Puishys
Plaintiff Claims: ordinary and gross negligence
Defendant Defenses: Assumption of the Risk & Release
Holding: for the Plaintiff
Year: 2023
Summary
The plaintiff fell off her horse at a camp for jumping. She walked back to the cabin by herself and ended up needing emergency back surgery. The facts leading up to her injury were equally concerning. The court found multiple was to void the release and send this win back to court so the plaintiff could try again.
Facts
Ava was 12 years old when Kelly enrolled her in Foxfield’s summer sleepaway camp. Kelly completed and signed Ava’s application. In the application, Kelly indicated Ava had prior experience in horseback riding, including jumping crossrails. The application also stated that Ava was a “Level 3” rider at Mill Creek Riding School. A “Level 3” rider at Mill Creek would have been taught how to “jump horses, with multiple jumps,” and how to control a horse’s speed from walking slowly “all the way to canter.” Such a rider would also have been introduced to bigger and wider jumps.
Foxfield evaluated Ava on the first day of camp and placed her in the group with the least advanced riders. On the first and second days of instruction, Ava rode a horse named Polly in an enclosed dressage ring. Ava felt comfortable riding Polly.
On the third day of instruction, Foxfield assigned Ava a horse named Sonny, and Puishys taught the lesson. Ava rode Sonny in the dressage ring for about an hour and practiced some jumps. The group then went into the cross-country field. Ava completed her first jump with Sonny in the field, but fell off on her second jump, the “log jump.” Sonny bucked during the jump, and Ava was thrown off and landed on her back. Puishys continued with the riding lesson while Ava walked back to the cabins by herself.
Ava called Kelly from camp, and Kelly took her home. The next day, Ava had an X-ray done on her neck. She suffered a spinal injury requiring emergency surgery.
At trial, Ava testified she was nervous about riding Sonny. While riding in the dressage ring, she had difficulty controlling Sonny and told Puishys she needed instructions. Puishys “brushed it off.” Ava was also nervous about riding in the cross-country field and told Puishys she could not do it. Puishys told Ava to “face [her] fears.”
Another camper in Ava’s group testified that Ava was having problems controlling Sonny right before the log jump. She said that Sonny seemed to “want[] to go fast” and that he was “hard to control.”
The Brownes also presented deposition testimony of Foxfield’s owner, who testified that it was not typical for dressage ring riders to be taken into the cross-country field on their third day of instruction.
After the Brownes’ case-in-chief, Defendants moved for nonsuit based on the primary assumption of risk doctrine and Foxfield’s release of liability. The trial court granted the motion as to the issue of ordinary negligence, but denied it as to gross negligence. The court found that the signed release “was specific” and “very broad.” It found the release “encompassed every one of the activities that the plaintiff engaged in, including but not limited to the activity of cross[-]country field jumping at the time the injury occurred. [¶] So clearly, primary express assumption of the risk has been established as a matter of law. There’s nothing for the jury to resolve in that regard.”
The trial proceeded on the issue of gross negligence, and the jury returned a verdict in favor of the Defendants. After partially granting the Brownes’ motion to strike and tax costs, the trial court awarded nearly $97,000 in costs to Defendants.
Analysis: making sense of the law based on these facts.
Reviewing the facts, it is fairly obvious there are some factual issues that raise a concern before the law is applied to the case. The release or at least language to prevent litigation is part of the application, not a separate document or at least not set out to be identified as important information.
The instructor seems to be indifferent towards the students and fails totally after the plaintiff fell off her horse. “…Ava was thrown off and landed on her back. Puishys continued with the riding lesson while Ava walked back to the cabins by herself.”
Failure of the instructor to listen to the concerns of the student and absolute failure to follow up or to respond when the student falls is scary.
At the same time, there also seems to be a real failure to understand the skills of the plaintiff. Her mother on the application writes down one level of skills, the evaluation seems to show a different level of skill, and the actual skill of the plaintiff is less than the other evaluations.
The failure of the student to adequately identify her skills with what she showed and the failure of the instructor to understand the needs of the plaintiff combined to create a lawsuit.
Legal Analysis
The plaintiff argued the release was void because the release:
…clearly and unambiguously” release claims arising from Defendants’ negligent conduct, which increased the inherent risks of horseback riding. Alternatively, they argue the release was void for a lack of meeting of the minds.
The court went into a thorough review of what is required for the plaintiff to win a case, a prelude to the defendant losing the case.
To prevail on a cause of action for ordinary negligence, a plaintiff must prove the defendant owed them a legal duty, breached that duty, and proximately caused their injury. Although a defendant generally has a duty” ‘not to cause an unreasonable risk of harm to others [citation], some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors[,] and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” ([coach has duty to not increase risk of harm inherent in learning a sport].) A written release may exculpate a defendant by negating that duty.
The analysis of the law continued.
” ‘Contract principles apply when interpreting a release. ‘Where, as here, the interpretation of a release does not turn on the credibility of extrinsic evidence,” ‘” ‘construction of the instrument is a question of law . . . . It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[s’] cause of action.” ‘”
The scope of a release is determined by its express language. “The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence . . . need not be spelled out in the agreement.” “‘ “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” ‘”
To be effective, a “release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.'”
In the above quotes, the appellate court is pointing out that the language in the release is going to be defective, voiding the release. However, the court is not done with why and how the release is going to be denied, the court then attacks the defense of assumption of the risk.
Thus, where the primary assumption of risk doctrine applies, the release must clearly and unambiguously exempt the defendant from liability from their own misconduct or negligent acts that increase the risks inherent in the activity. It must be sufficiently clear and explicit to” ‘set forth to an ordinary person untrained in the law that the intent and effect of the document is to release . . . claims for [their] own personal injuries and to indemnify the defendants from and against liability to others [that] might occur in the future.'” “If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.”
Finally, the court gets to the point.
The express language of the release here does not “clear[ly], unambiguous[ly], and explicit[ly]” relieve Defendants of liability resulting from their own negligence or for conduct that increased the risks inherent in horseback riding.
The release language fails. There is no language in the release, that in the court’s opinion gave notice to the plaintiff that they were giving up their right to sue. The release did not use the word negligence or any phrase or other words that indicated this was a release.
But nothing in the release mentions negligence, negligent acts, or misconduct by the Defendants. Nor does the release inform an ordinary person untrained in the law that it would apply to Defendants’ negligent conduct or conduct that increases the risks inherent in horseback riding.
The release does state that Kelly “waive [s] any claims that [she] might have against [Defendants]” and that she “agree[s] to pay all doctor or hospital fees” if Ava was injured at Foxfield. But we do not read these statements in isolation. Instead, we must interpret the release as a whole and its language in context,….
This analysis cumulates in the analogy that the release, if 0ne exists or the assumption of the risk language, only prevents claims for the inherent risks of the activity.
Read in context, the waiver language appears in the same sentence as the releasee’s assumption of inherent risks. Thus, we interpret it to encompass only those injuries resulting from the inherent risks of riding or handling of horses, not injuries resulting from Defendants’ alleged negligent acts. It is not a waiver of all liability.
The inherent risks of any activity are assumed by anyone participating in the activity. A release is used to cover those risks that are created by the defendants or those risks that are increased by the actions of the defendants. The court stated the release, if it was one, had no value.
The risk of injury caused by the defendants’ negligence was not within the scope of the release because a release requires “a high degree of clarity and specificity . . . in order to find that it relieves a party from liability for its own negligence.”
The court concluded that the only risks the plaintiff assumed were those inherent in the activity.
The only risks the Brownes assumed was related to the inherent risks of horseback riding. They did not assume liability attributable to Defendants’ negligence or conduct that increased the inherent risks in horseback riding.
The plaintiff also argued the jury instructions for gross negligence were incorrect. The defendant won at trial on the claims of gross negligence.
“Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be grossly negligent by acting or failing to act.”
However, the court found the instructions were clear. However, this did not really matter because since the underlying negligence claim was now back on the table, the new trial, gross negligence would be back as a claim.
The plaintiff also argued that because the defendant was not properly licensed and accredited, there could not be a meeting of the minds. Meaning the contract, the release was void, because there was important information concerning the contract that would have prevented the plaintiff from entering into the contract if known by the plaintiff. The court did not consider this argument because it held the release was void. However, this is an interesting argument that we will probably see in the future.
Brownes argue that was error because the evidence was probative to show the release was void for a lack of meeting of the minds-i.e., that Kelly would not have signed the release if she had known Foxfield was not properly licensed and accredited. We do not resolve this argument because even if the evidence was probative to the release being void, its exclusion was harmless given our conclusion that the release only applied to injuries resulting from the inherent risks of horseback riding and not to the negligence claims.
The defendants were awarded costs of nearly $97,000. That award was based on an offer of settlement that was rejected by the plaintiff. An offer of settlement is made by the defendant means the defendant says to the plaintiff we will give you $XX dollars and a judgment. If you accept this, you get the $XX immediately. If you reject the settlement, then any cost, we incur after the offer is rejected can be billed to you if you win the amount we offer or less.
Since the win was overturned by the court then the $97,000 judgement was also overturned.
There was a dissent in this opinion, which would have upheld the win for the defendant.
So Now What?
Again, reading this case, you can see the result coming way before the court ever states its decision because of the over-justification used in the decision. At the same time, there are some clear issues that helped the court reach its decision.
The release was poorly written and part of an application. The court did not even get into the issues of how the release was presented as part of an application. The language alone was enough to trigger the failure of the release to work.
The second clear issue is how the plaintiff was treated before and after the fall. Walking back to her cabin, alone, after being told to “face her fears” and brushed off her other concerns.
To read about other poorly written releases see:
Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.
Poorly written release gave the plaintiffs the only chance they had to win
To read about other California cases see:
To read about other equine (horse) cases see:
Equine laws stop suit against horse, outfitter still sued.
One winner for equine liability statutes. Indiana statute stops litigation based on horse kick.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
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Browne v. Foxfield Riding Sch. (Cal. App. 2023)
Posted: August 21, 2023 Filed under: Assumption of the Risk, California, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue), Youth Camps | Tags: assumption of the risk, Dressage, Equine, Foxfield Riding School, Gross negligence, horseback riding, Inherent Risk, Ordinary Negligence, Release, Sleepaway Camp, Waiver Leave a commentAVA BROWNE, a Minor, etc., et al., Plaintiffs and Appellants,
v.
FOXFIELD RIDING SCHOOL et al., Defendants and Respondents.
2d Civil Nos. B315743, B318304
California Court of Appeals, Second District, Sixth Division
August 14, 2023
NOT TO BE PUBLISHED
Superior Court County of Ventura Super. Ct. No. 56-2017-00499800-CU-PO-VTA Matthew P. Guasco, Judge
Dykema Gossett, Becky S. James and Lisa M. Burnett for Plaintiffs and Appellants.
Hawkins Parnell &Young, Elaine K. Fresch, Jerry C. Popovich and Melanie M. Smith for Defendants and Respondents.
BALTODANO, J.
Ava Browne, through her mother, Kelly Browne,[1] sued Foxfield Riding School and riding instructor Katelyn Puishys (collectively, Defendants) for ordinary and gross negligence after she was injured during a horseback riding accident. The trial court granted Defendants’ motion for nonsuit as to ordinary negligence, and a jury found in favor of Defendants on the gross negligence claim. The court awarded costs to Defendants.
The Brownes appeal from the judgment and contend the trial court erred when it: (1) granted partial nonsuit as to ordinary negligence, (2) instructed the jury on gross negligence, (3) made certain evidentiary rulings, (4) made cumulative errors, and (5) awarded Defendants costs pursuant to Code of Civil Procedure[2] section 998. As we explain below, the trial court erred in granting partial nonsuit on the ordinary negligence claim but did not err with respect to its evidentiary rulings and instructing the jury. We therefore affirm in part, reverse in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Ava was 12 years old when Kelly enrolled her in Foxfield’s summer sleepaway camp. Kelly completed and signed Ava’s application. In the application, Kelly indicated Ava had prior experience in horseback riding, including jumping crossrails. The application also stated that Ava was a “Level 3” rider at Mill Creek Riding School. A “Level 3” rider at Mill Creek would have been taught how to “jump horses, with multiple jumps,” and how to control a horse’s speed from walking slowly “all the way to canter.” Such a rider would also have been introduced to bigger and wider jumps.
In the application, Foxfield included the following release:
“I have sufficient knowledge of horses to understand their unpredictability and potentially dangerous character in general[,] and I understand that the use, handling[,] and riding of a horse ALWAYS involves risk of bodily injury to anyone who handles or rides horses, as well as the risk of damaging the property of others. I understand that any horse, irrespective of its training and usual past behavior and characteristics, may act or react unpredictably at times, based upon instinct or fright, which likewise is an inherent risk assumed by one who handles/rides horses. I expressly assume such risk and hereby waive any claims that I might have against Foxfield Riding School, its [t]eachers, [c]ounselors[,] and [t]rainers, on behalf of the above[-]mentioned camper or myself. I agree to pay all doctor or hospital fees if the child is injured while staying at Foxfield.”
Foxfield evaluated Ava on the first day of camp and placed her in the group with the least advanced riders. On the first and second days of instruction, Ava rode a horse named Polly in an enclosed dressage ring. Ava felt comfortable riding Polly.
On the third day of instruction, Foxfield assigned Ava a horse named Sonny, and Puishys taught the lesson. Ava rode Sonny in the dressage ring for about an hour and practiced some jumps. The group then went into the cross-country field. Ava completed her first jump with Sonny in the field, but fell off on her second jump, the “log jump.” Sonny bucked during the jump, and Ava was thrown off and landed on her back. Puishys continued with the riding lesson while Ava walked back to the cabins by herself.
Ava called Kelly from camp, and Kelly took her home. The next day, Ava had an X-ray done on her neck. She suffered a spinal injury requiring emergency surgery.
The Brownes sued Defendants for negligence/gross negligence. They alleged Defendants breached their duty of care by assigning Ava to ride Sonny, a horse “unfit and unsafe for riding by a beginning rider like Ava.” They also alleged Defendants failed to adequately instruct Ava before requiring her to ride in the cross-country field, which was beyond her abilities.
At trial, Ava testified she was nervous about riding Sonny. While riding in the dressage ring, she had difficulty controlling Sonny and told Puishys she needed instructions. Puishys “brushed it off.” Ava was also nervous about riding in the cross-country field and told Puishys she could not do it. Puishys told Ava to “face [her] fears.”
Another camper in Ava’s group testified that Ava was having problems controlling Sonny right before the log jump. She said that Sonny seemed to “want[] to go fast” and that he was “hard to control.”
The Brownes also presented deposition testimony of Foxfield’s owner, who testified that it was not typical for dressage ring riders to be taken into the cross-country field on their third day of instruction.
Phyllis Pipolo, Ava’s previous riding instructor, testified that Ava’s balance was “slightly ahead of the center of gravity” and “slightly out of the rhythm of the horse.” She questioned Ava’s stability and said Ava had issues with “a lack of control.”
The Brownes’ expert witness, Linda Rubio, inspected Foxfield’s facilities, observed Foxfield’s horses, interviewed the Brownes, reviewed deposition testimony, and watched videos of Ava’s riding. Rubio opined Ava was a beginning level rider and that Sonny was not a suitable horse because he was “an advanced horse.” She also opined the lesson plan on the day of the accident with Ava riding Sonny was not an appropriate plan for Ava because it “increase[d] the risk over and above those inherent [in] horseback riding.” Rubio said Ava should not have gone into the cross-country field because it was “beyond her scope of capability.” According to Rubio, Foxfield increased the risk of Ava falling off the horse by putting her in the field and having her attempt the log jump.
After the Brownes’ case-in-chief, Defendants moved for nonsuit based on the primary assumption of risk doctrine and Foxfield’s release of liability. The trial court granted the motion as to the issue of ordinary negligence, but denied it as to gross negligence. The court found that the signed release “was specific” and “very broad.” It found the release “encompassed every one of the activities that the plaintiff engaged in, including but not limited to the activity of cross[-]country field jumping at the time the injury occurred. [¶] So clearly, primary express assumption of the risk has been established as a matter of law. There’s nothing for the jury to resolve in that regard.”
The trial proceeded on the issue of gross negligence, and the jury returned a verdict in favor of the Defendants. After partially granting the Brownes’ motion to strike and tax costs, the trial court awarded nearly $97,000 in costs to Defendants.
DISCUSSION
Partial nonsuit
The Brownes contend the trial court erred when it granted a partial nonsuit as to ordinary negligence. They contend the release did not “clearly and unambiguously” release claims arising from Defendants’ negligent conduct, which increased the inherent risks of horseback riding. Alternatively, they argue the release was void for a lack of meeting of the minds. We agree the trial court erred in interpreting the release and granting partial nonsuit. ” ‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in [their] favor.’ [Citation.] In determining the sufficiency of the evidence, the . . . court must not weigh the evidence or consider the credibility of the witnesses. Instead, it must interpret all of the evidence most favorably to the plaintiff s case and most strongly against the defendant, and must resolve all presumptions, inferences, conflicts, and doubts in favor of the plaintiff. If the plaintiffs claim is not supported by substantial evidence, then the defendant is entitled to a judgment as a matter of law, justifying the nonsuit.” (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541.) We review the trial court’s ruling on a nonsuit de novo. (Id. at pp. 1541-1542.)
To prevail on a cause of action for ordinary negligence, a plaintiff must prove the defendant owed them a legal duty, breached that duty, and proximately caused their injury. (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356 (Benedek).) Although a defendant generally has a duty” ‘not to cause an unreasonable risk of harm to others [citation], some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.] Where the doctrine applies to a recreational activity, operators, instructors[,] and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, italics omitted; see also Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1005-1006 [coach has duty to not increase risk of harm inherent in learning a sport].) A written release may exculpate a defendant by negating that duty. (Benedek, at p. 1356.)
” ‘Contract principles apply when interpreting a release.'” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483 (Cohen).) Where, as here, the interpretation of a release does not turn on the credibility of extrinsic evidence,” ‘” ‘construction of the instrument is a question of law . . . . It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[s’] cause[] of action.” ‘” (Ibid.)
The scope of a release is determined by its express language. (Benedek, supra, 104 Cal.App.4th at p. 1357.) “The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence . . . need not be spelled out in the agreement.” (Ibid.)”‘ “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” ‘” (Ibid.)
To be effective, a “release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.'” (Benedek, supra, 104 Cal.App.4th at p. 1356.) Thus, where the primary assumption of risk doctrine applies, the release must clearly and unambiguously exempt the defendant from liability from their own misconduct or negligent acts that increase the risks inherent in the activity. (Cohen, supra, 159 Cal.App.4th at p. 1488.) It must be sufficiently clear and explicit to” ‘set forth to an ordinary person untrained in the law that the intent and effect of the document is to release . . . claims for [their] own personal injuries and to indemnify the defendants from and against liability to others [that] might occur in the future.’” (Ibid.) “If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.” (Benedek, at p. 1357.)
The express language of the release here does not “clear[ly], unambiguous[ly], and explicit[ly]” relieve Defendants of liability resulting from their own negligence or for conduct that increased the risks inherent in horseback riding. (Benedek, supra, 104 Cal.App.4th at p. 1356.) The release informed Kelly that the “use, handling[,] and riding of a horse ALWAYS involves risk of bodily injury to anyone who handles or rides horses” and that “any horse . . . may act or react unpredictably at times, . . . which likewise is an inherent risk assumed by one who handles/rides horses.” By signing the release, Kelly “expressly assume[d] such risk and . . . waive[d] any claims that [she] might have against” Foxfield and its teachers. (Italics added.) But nothing in the release mentions negligence, negligent acts, or misconduct by the Defendants. Nor does the release inform an ordinary person untrained in the law that it would apply to Defendants’ negligent conduct or conduct that increases the risks inherent in horseback riding. (See Cohen, supra, 159 Cal.App.4th at pp. 1488-1489.) Rather, the only assumption of risk mentioned in the release pertains to the inherent risks of handling or riding a horse.
The release does state that Kelly “waive [s] any claims that [she] might have against [Defendants]” and that she “agree[s] to pay all doctor or hospital fees” if Ava was injured at Foxfield. But we do not read these statements in isolation. Instead, we must interpret the release as a whole and its language in context, avoiding a piecemeal, strict construction. (Civ. Code, § 1641; Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.) Read in context, the waiver language appears in the same sentence as the releasee’s assumption of inherent risks. Thus, we interpret it to encompass only those injuries resulting from the inherent risks of riding or handling of horses, not injuries resulting from Defendants’ alleged negligent acts.[3] It is not a waiver of all liability. (Cf. Benedek, supra, 104 Cal.App.4th at p. 1358 [release of all liability where release clearly and explicitly stated that it applied to “liability for any personal injuries suffered while on [defendant’s] premises” (italics added)]; National &International Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 936 [release expressly provided that plaintiff was “not to sue [defendants] . . . from any and all claims and liability arising out of . . . ordinary negligence”].)
This case is like Cohen, supra, 159 Cal.App.4th 1476. There, the plaintiff was injured when she fell off a horse during a horseback ride. (Id. at p. 1480.) She then sued the defendants for negligence for allegedly increasing the risk inherent in trail riding when the guide accelerated the gait of the horses without warning, causing her to lose control and fall off her horse. (Ibid.) The defendants moved for summary judgment on the ground that the plaintiff signed a release. (Id. at p. 1481.) The release informed the plaintiff of the inherent risks of horseback riding, including that a horse will run or bolt uncontrollably without warning. By signing the release, she agreed to”‘ assume responsibility for the risks identified herein and those risks not specifically identified.'” (Id. at pp. 1485-1486, italics omitted.) The trial court granted summary judgment, finding the release clearly expressed an agreement not to hold the defendants liable for negligence. (Id. at p. 1482.)
The Court of Appeal reversed, concluding the trial court erred in interpreting the release. (Cohen, supra, 159 Cal.App.4th at p. 1487.) It explained that all the risks specifically described in the release were ones inherent in horseback riding. (Id. at p. 1486.) The risk of injury caused by the defendants’ negligence was not within the scope of the release because a release requires “a high degree of clarity and specificity . . . in order to find that it relieves a party from liability for its own negligence.” (Id. at p. 1488.) And” ‘[n]othing in the [r]elease clearly, unambiguously, and explicitly indicate[d] that it applie[d] to risks and dangers attributable to [the defendants’] negligence or that of an employee that may not be inherent in supervised recreational trail riding. Nor [did] the [r]elease indicate that it cover[ed] any and all injuries arising out of or connected with the use of [the defendants’] facilities.'” (Id. at p. 1489, italics omitted.) The same is true here.
Defendants rely on Eriksson v. Nunnink (2015) 233 Cal.App.4th 708 and Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003 (El Dorado), two cases where a release in the recreational sports context was found to relieve the defendants from liability for their negligent conduct. But these cases are distinguishable. In Eriksson, the release between a plaintiff (a horseback rider) and the defendant (trainer) expressly stated that the “[r]ider agree[d] to hold [the trainer] . . . completely harmless and not liable and release [her] from all liability whatsoever, and AGREE[D] NOT TO SUE [her] on account of or in connection with any claims, causes of action, injuries, damages, costs[,] or expenses arising out of [the rider’s] use of [the trainer’s] services . . ., including[,] without limitation, those based on death . . . [or] bodily injury, . . . except if the damages [were] caused by the direct, willful[,] and wanton negligence of the [t]rainer.” (Ericksson, at p. 720.) The release also stated that the “[r]ider agree[d] to indemnify [the trainer] against, and hold her harmless from, any and all claims, causes of action, damages, judgments, costs[,] or expenses . . . [that] in any way [arose] from [the rider’s] use of [the trainer’s] services.” (Ibid.) The Eriksson court held that this release “plainly encompasse[d] liability for future negligence as well as any previously committed torts,” with the only exception to damages caused by gross negligence. (Id. at pp. 722-723.)
Similarly, in El Dorado, the language of the release between a student athlete and a school district expressly absolved the school district and its employees “from any and all claims of liability arising out of their negligence, or any other act or omission [that] cause[d] . . . illness, injury, death[,] or damages of any nature in any way connected with the student’s participation in the school[-]related activity.” (El Dorado, supra, 76 Cal.App.5th at p. 1010.) The court held that such language provided an “unequivocal[] agree[ment] to assume the risk of injuries caused by the negligent acts of the [d]istrict employees . . . while [the student] played football.” (Id. at p. 1025.)
Unlike Ericksson and El Dorado, Foxfield’s written release did not clearly and expressly apply to Defendants’ negligent conduct, nor did it waive all liability. The only risks the Brownes assumed was related to the inherent risks of horseback riding. They did not assume liability attributable to Defendants’ negligence or conduct that increased the inherent risks in horseback riding. Nonsuit should have been denied.[4]
At oral argument Defendants argued the trial court’s grant of nonsuit on the ordinary negligence claim was harmless. Because the jury found in their favor on the gross negligence claim, Defendants posit, the jury necessarily rejected the Brownes’ theory that Defendants “unreasonably increased the risk to Ava over and above those already inherent in horseback riding.” But the jury was only asked to render a verdict on gross negligence, which requires” ‘” ‘the want of even scant care or an extreme departure from the ordinary standard of conduct.'” ‘” (County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460, 474.) We do not know whether the jury would have found for the Brownes on a claim that only required finding that Defendants breached a legal duty that proximately caused Ava’s injuries. We thus cannot say that the grant of nonsuit was harmless.
Jury instruction for gross negligence
The Brownes next contend the trial court prejudicially erred when it denied their proposed modification to CACI 425. We disagree.
CACI 425 states: “Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. [¶] A person can be grossly negligent by acting or failing to act.” The Brownes requested a modification to specify that” ‘if a defendant acts or fails to act in a manner which [sic] substantially or unreasonably increases the risk of danger or harm inherent in the sporting activity, such conduct constitutes gross negligence if you find that said defendant’s act or failure to act demonstrates the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or others.'” The trial court denied the proposed modification and instructed the jury with CACI 425, but allowed the Brownes to argue their expanded definition of gross negligence during closing arguments.
“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case . . . [that] is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) Where a civil jury instruction error is alleged, reversal is only appropriate if after examination of the entire cause, the” ‘error complained of has resulted in a miscarriage of justice.’ [Citation.]” (Id. at p. 580.) To assess prejudicial instructional error, we evaluate: “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)
Here, even if the trial court erred in denying the modified instruction, the Brownes do not show they were prejudiced. During closing argument, the Brownes argued that Defendants were grossly negligent when they “unreasonably increased the risk to Ava over and above those already inherent in horseback riding.” The Brownes presented evidence to support this theory and summarized the evidence during closing argument. They also argued the jury could find Defendants grossly negligent if the evidence proved Defendants’ conduct, including the failure to act, “was a substantial factor in causing harm to Ava” irrespective of the release.
The trial court also clarified the gross negligence standard by instructing the jury that an “act or omission by the defendants [that] substantially or unreasonably increases the risk inherent in horseback riding and jumping can be gross negligence if it meets the definition of gross negligence. That is, it has to have amounted to . . . the want of any care or an extreme departure from conduct that would otherwise be reasonable.” The Brownes point to no other instructions that would have affected the jury’s understanding of gross negligence. Furthermore, there was no indication by the jury that it was confused or misled. (Soule, supra, 8 Cal.4th at pp. 580-581.) Thus, the court did not prejudicially err in denying the requested modification.
Evidentiary errors
Next, the Brownes argue the trial court erred when it: (1) excluded evidence regarding Foxfield’s lack of proper licensure and accreditation, and (2) did not permit Pipolo to testify as an expert witness. We review these rulings for abuse of discretion (Pannu v. Land Rover N. Am., Inc. (2011) 191 Cal.App.4th 1298, 1317), and reject the Brownes’ arguments.
1. Licensure and accreditation
Defendants moved in limine to exclude evidence regarding Foxfield’s lack of proper licensure and accreditation as a sleepaway camp because it was more prejudicial than probative. The trial court granted the motion. The Brownes argue that was error because the evidence was probative to show the release was void for a lack of meeting of the minds-i.e., that Kelly would not have signed the release if she had known Foxfield was not properly licensed and accredited. We do not resolve this argument because even if the evidence was probative to the release being void, its exclusion was harmless given our conclusion that the release only applied to injuries resulting from the inherent risks of horseback riding and not to the negligence claims.
2. Pipolo’s testimony
At trial, Defendants objected to Pipolo’s testimony that Ava was a “beginner” rider because Pipolo was not an expert and could not opine on Ava’s skill level. The court sustained the objection but allowed Pipolo to testify about her observations of Ava’s riding.
There was no abuse of discretion. Pipolo was a lay witness and could only offer opinion testimony if it was “[r]ationally based on her perception” and “[h]elpful to a clear understanding of [her] testimony.” (Evid. Code, § 800.) In contrast, an expert could properly testify to an opinion related to “a subject that is sufficiently beyond common experience” and based on their special knowledge, skill, experience, training, or education. (Evid. Code, § 801.) An assessment of a horse rider’s skill level is related to a subject matter beyond common experience and thus required an expert opinion. (See, e.g., Giardino v. Brown (2002) 98 Cal.App.4th 820, 826.)
Any error in disallowing Pipolo to opine that Ava was a “beginner” rider also would have been harmless. Pipolo was permitted to describe her observations of Ava’s riding abilities, including observations on Ava’s issues with stability and control. Rubio also testified that Ava was a beginning rider. And there was no dispute Ava was classified in the lowest skill group at Foxfield. Excluding Pipolo’s opinion thus did not prejudice the Brownes.
Cumulative error
The Brownes argue cumulative error. Because we have determined the trial court erred in granting nonsuit on the ordinary negligence claim, this matter must be reversed. To the extent the Brownes argue the remaining issues resulted in cumulative error, our rejection of each of them forecloses their claim. (People v. Avila (2006) 38 Cal.4th 491, 608.)
Section 998 costs award
Lastly, the Brownes contend the costs awarded to Defendants pursuant to section 998 should be vacated. Section 998 provides that if “an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover [their] postoffer costs and shall pay the defendant’s costs from the time of the offer.” (§ 998, subd. (c)(1).) Because we reverse and remand the matter on the issue of ordinary negligence, the Brownes can potentially obtain a more favorable judgment or award on remand. We accordingly vacate the costs award.
DISPOSITION
The judgment is reversed with respect to the nonsuit on the ordinary negligence claim, and the section 998 costs award is vacated. The matter is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.
I concur: GILBERT, P. J.
YEGAN, J., Dissenting:
I respectfully dissent. The majority opinion erases mother’s name from the waiver and release document. We should not do that. “The purpose of the law of contracts is to protect the reasonable expectations of the parties.” (Ben-Zvi v. Edmar Co. (1995) 40 Cal.App.4th 468, 475.) Mother knew and knows that riding a horse is dangerous and that people can be seriously injured when riding a horse. Mother agreed to accept this risk for her daughter. To be sure, she did not actually expect that daughter would be hurt but she knew, or should have known, that this was a foreseeable risk. The riding school had a reasonable expectation that it would not be the subject of a lawsuit based on a claim of negligence. These reasonable expectations should account for something.
The trial court expressly ruled that the waiver and release document was “very specific” and “very broad.” I agree with the trial court. The activity that led to minor’s harm was riding a horse and jumping a barrier in a country field. Minor was not a first time rider. She had ridden and jumped horses at another riding facility. She indicated on her application that she had experience at horse jumping. How could riding and jumping a horse not be covered by the release? Just what is the effect of mother’s signature on the release directed to? And the last line of the waiver and release document that mother signed could not be more explicit: “I agree to pay all doctor or hospital fees if [my] child is injured while staying at Foxfield [riding academy].” This last sentence is in no way ambiguous and a reasonable person can only read it as a release of any obligation of riding school to pay these fees.
The nature of incremental and progressive teaching to achieve proficiency in sporting activities, is pretty basic. A professional surfing instructor does not start teaching on a 35-foot-wave at Waimea Bay. A professional snow ski instructor does not start teaching at Hangman’s Hollow in Mammoth Mountain, one of the steepest and narrowest ski runs in the United States. Incremental teaching moves in progressive steps. It involves the professional judgment of the particular instructor. When a mishap occurs, it is always possible to assert the instructor has made a mistake and should be liable for the choices made. But this is the nature of incremental teaching. The teaching cycle involves “pushing” the student to the goal of the lesson. “Learning any sport inevitably involves attempting new skills. A coach or instructor will often urge the student to go beyond what the student has already mastered; that is the nature of (inherent in) sports instruction.” (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1368-1369; see also Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 14361437.) There is an established progression to the goal of proficiency. That is what happened here. The instructor did not take the student to the equivalent of Waimea Bay or Hangman’s Hollow. She took minor on a low-level jump course in the country. This was progressive and incremental teaching.
A waiver and release document can always be more specific and the majority could write such a document. So could I. This is not the test on appeal. The commonsense rationale of the trial court should not be tested by a waiver theoretically drafted by Professors Williston or Corbin. (See Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755; see also National &International Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3rd 934, 937-938.) The fair import of the document is that it releases riding school from the theoretical negligence of the instrutor who picked the horse and who made the decision to jump in the field. It is always possible for a plaintiff to characterize such decisions as “increasing the risk of harm.” This is at variance to the concept of incremental and progressive teaching.
The majority opinion relies heavily on Presiding Justice Kline’s opinion in Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476. There is a comprehensive and compelling dissent written by Justice Haerle. He has adequately answered the present majority opinion’s analysis.
I have deep concern for the injured minor. But that is no reason to void the release and waiver her mother signed. A strong case can be made that no negligence was involved here at all. But in any event, mother agreed to assume the risks involved in the sport of horse jumping. As the waiver and release document says: “[h]andling and riding of a horse ALWAYS involves risk of bodily injury ….”
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Notes:
[1] We refer to the Brownes by their first names to avoid confusion. No disrespect is intended.
[2] Further unspecified statutory references are to the Code of Civil Procedure.
[3] Even if the waiver language were ambiguous, we would construe such ambiguities against Foxfield, the drafter of the release. (Benedek, supra, 104 Cal.App.4th at p. 1357; Civ. Code § 1654; see also Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738 [“release forms are to be strictly construed against the defendant”].)
[4] Because we conclude the trial court erred in interpreting the release, we need not address the alternative argument that the release was void. And because we do not resolve that issue, we deny the Brownes’ request for judicial notice as irrelevant to our decision. (State Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442.)
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Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397
Posted: August 17, 2023 Filed under: Colorado, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Chairlift, Colorado Premises Liability Act, Colorado Skier Safety Act, Keystone, Keystone Mountain Resort, Negligence, Negligence per se, Negligent Hiring, Negligent Supervision and Training, Release, Respondeat Superior, Ski boot, Ski School Waiver, skiing, Vail, Waiver Leave a commentBrigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397
Teresa Brigance, Plaintiff – Appellant, v. Vail Summit Resorts, Inc., Defendant – Appellee.
No. 17-1035
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
2018 U.S. App. LEXIS 397
January 8, 2018, Filed
PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:15-CV-01394-WJM-NYW).
Brigance v. Vail Summit Resorts, Inc., 2017 U.S. Dist. LEXIS 5447 (D. Colo., Jan. 13, 2017)
COUNSEL: Trenton J. Ongert (Joseph D. Bloch with him on the briefs), Bloch & Chapleau, LLC, Denver, Colorado, for Plaintiff – Appellant.
Michael J. Hofmann, Bryan Cave LLP, Denver, Colorado, for Defendant – Appellee.
JUDGES: Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.
OPINION BY: McHUGH
OPINION
McHUGH, Circuit Judge.
During a ski lesson at Keystone Mountain Resort (“Keystone”), Doctor Teresa Brigance’s ski boot became wedged between the ground and the chairlift. She was unable to unload but the chairlift kept moving, which caused her femur to fracture. Dr. Brigance filed suit against Vail Summit Resorts, Inc. (“VSRI”), raising claims of (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115. The district court dismissed Dr. Brigance’s negligence and negligence per se claims at the motion to dismiss stage. After discovery, the district court granted VSRI’s motion for summary judgment on the remaining claims, concluding the waiver Dr. Brigance signed before participating [*2] in her ski lesson, as well as the waiver contained on the back of her lift ticket, are enforceable and bar her claims against VSRI. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background
Keystone is a ski resort located in Colorado that is operated by VSRI. In March 2015, Dr. Brigance visited Keystone with her family and participated in a ski lesson. At the time, ski lesson participants, including Dr. Brigance, were required to sign a liability waiver (the “Ski School Waiver”) before beginning their lessons. The Ski School Waiver signed1 by Dr. Brigance contained, among other things, the following provisions:
RESORT ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNITY AGREEMENT
THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.
. . .
2. I understand the dangers and risks of the Activity and that the Participant ASSUMES ALL INHERENT DANGERS AND RISKS of the Activity, including those of a “skier” (as may be defined by statute or other applicable law).
3. I expressly acknowledge and assume all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers [*3] and risks of the Activity, including but not limited to: Falling; free skiing; following the direction of an instructor or guide; . . . equipment malfunction, failure or damage; improper use or maintenance of equipment; . . . the negligence of Participant, Ski Area employees, an instructor . . . or others; . . . lift loading, unloading, and riding; . . . . I UNDERSTAND THAT THE DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT COMPLETE AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.
4. Participant assumes the responsibility . . . for reading, understanding and complying with all signage, including instructions on the use of lifts. Participant must have the physical dexterity and knowledge to safely load, ride and unload the lifts. . . .
. . .
6. Additionally, in consideration for allowing the Participant to participate in the Activity, I AGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION [*4] IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON [VSRI’s] ALLEGED OR ACTUAL NEGLIGENCE . . . .
Aplt. App’x at 117 (emphasis in original).
1 Although VSRI did not produce an original or copy of the Ski School Waiver signed by Dr. Brigance, it provided evidence that all adults participating in ski lessons at Keystone are required to sign a waiver and that the Ski School Waiver was the only waiver form used by VSRI for adult ski lessons during the 2014-15 ski season. Before it was clear that VSRI could not locate its copy of the signed waiver, Dr. Brigance indicated in discovery responses and deposition testimony that she signed a waiver before beginning ski lessons. See Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4 (D. Colo. Jan. 13, 2017). Based on this evidence and Dr. Brigance’s failure to argue “that a genuine question remains for trial as to whether she did in fact sign the Ski School Waiver in the form produced or whether she agreed to its terms,” 2017 U.S. Dist. LEXIS 5447, [WL] at *4, the district court treated her assent to the Ski School Waiver as conceded and concluded that “there is no genuine dispute as to whether [Dr. Brigance] consented to the terms of the Ski School Waiver,” id.
On appeal, Dr. Brigance offers no argument and points to no evidence suggesting that the district court’s conclusion was erroneous in light of the evidence and arguments before it. Instead, she merely denies having signed the Ski School Waiver and reiterates that VSRI has yet to produce a signed copy of the waiver. But in response to questioning at oral argument, counsel for Dr. Brigance conceded that this court could proceed with the understanding that Dr. Brigance signed the Ski School Waiver. Oral Argument at 0:41-1:23, Brigance v. Vail Summit Resorts, Inc., No. 17-1035 (10th Cir. Nov. 13, 2017). Three days later, counsel for Dr. Brigance filed a notice with the court effectively revoking that concession.
Dr. Brigance’s assertion that she did not execute the Ski School Waiver is forfeited because she failed to adequately raise it as an issue below. Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 884 (10th Cir. 2016); see also Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4 (“[N]otwithstanding the absence of a signed copy of the [Ski School Waiver], [Dr. Brigance] does not argue that this issue presents a genuine dispute requiring trial.”). But even if we were to entertain the argument, it would fail to defeat summary judgment. Despite her obfuscation, VSRI’s inability to produce the signed Ski School Waiver and Dr. Brigance’s assertions that she did not sign the waiver–which contradict her discovery responses and deposition testimony–are insufficient to establish that the district court erred in concluding that no genuine dispute exists as to whether Dr. Brigance agreed to the terms of the waiver. [HN1] “Although the burden of showing the absence of a genuine issue of material fact” rests with the movant at summary judgment, “the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts.” Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1084 (10th Cir. 2006) (internal quotation marks omitted). Indeed, the
party asserting that a fact . . . is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials cited do not establish the absence . . . of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)–(B). Dr. Brigance made no such showing below, nor does she attempt to do so on appeal.
In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Keystone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:
HOLDER AGREES AND UNDERSTANDS THAT SKIING . . . AND USING A SKI AREA, INCLUDING LIFTS, CAN BE HAZARDOUS.
WARNING
Under state law, the Holder of this pass assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from the [*5] ski area operator for any injury resulting from any of the inherent dangers and risks of skiing. Other risks include cliffs, extreme terrain, jumps, and freestyle terrain. Holder is responsible for having the physical dexterity to safely load, ride and unload the lifts and must control speed and course at all times. . . . Holder agrees to ASSUME ALL RISKS, inherent or otherwise. Holder agrees to hold the ski area harmless for claims to person or property. . . .
. . .
NO REFUNDS. NOT TRANSFERABLE. NO RESALE.
Id. at 121 (emphasis in original).
After receiving some instruction during her ski lesson on how to load and unload from a chairlift, Dr. Brigance boarded the Discovery Lift. As Dr. Brigance attempted to unload from the lift, her left ski boot became wedged between the ground and the lift. Although she was able to stand up, she could not disengage the lift because her boot remained squeezed between the ground and the lift. Eventually, the motion of the lift pushed Dr. Brigance forward, fracturing her femur.
B. Procedural Background
Dr. Brigance filed suit against VSRI in the United States District Court for the District of Colorado as a result of the injuries she sustained while attempting to unload [*6] from the Discovery Lift.2 In her amended complaint Dr. Brigance alleged that the short distance between the ground and the Discovery Lift at the unloading point–coupled with the inadequate instruction provided by her ski instructor, the chairlift operator’s failure to stop the lift, and VSRI’s deficient hiring, training, and supervision of employees–caused her injuries. She consequently asserted the following six claims against VSRI: (1) negligence; (2) negligence per se; (3) negligent supervision and training; (4) negligence (respondeat superior); (5) negligent hiring; and (6) liability under the PLA.
2 The district court properly invoked diversity jurisdiction because Dr. Brigance is a citizen of Florida and VSRI is a Colorado corporation with its principal place of business in Colorado, and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1332(a), (c)(1)(B)–(C).
VSRI moved to dismiss all claims raised by Dr. Brigance with the exception of her respondeat superior and PLA claims. The district court granted in part and denied in part VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance I“), No. 15-cv-1394-WJM-NYM, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *1-5 (D. Colo. Mar. 11, 2016). It dismissed Dr. Brigance’s negligence claim as preempted by the PLA. 2016 U.S. Dist. LEXIS 31662, [WL] at *3-4. It also dismissed her negligence per se claim, concluding that she “fail[ed] to identify any requirement” of the Colorado Ski Safety Act of 1979 (the “SSA”), Colo. Rev. Stat. §§ 33-44-101 to -114, that VSRI had allegedly violated. Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2. In dismissing this claim, the district court also held that the [*7] provisions of the Passenger Tramway Safety Act (the “PTSA”), Colo. Rev. Stat. §§ 25-5-701 to -721, relied upon by Dr. Brigance “do[ ] not provide a statutory standard of care which is adequate to support [a] claim for negligence per se.” Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2 (emphasis omitted). But the district court refused to dismiss Dr. Brigance’s claims regarding negligent supervision and training and negligent hiring. 2016 U.S. Dist. LEXIS 31662, [WL] at *4-5.
Upon completion of discovery, VSRI moved for summary judgment on the basis that the Ski School Waiver and Lift Ticket Waiver completely bar Dr. Brigance’s remaining claims. In the alternative, VSRI argued that summary judgment was appropriate because (1) Dr. Brigance failed to satisfy the elements of her PLA claim and (2) her common-law negligence claims are preempted by the PLA and otherwise lack evidentiary support. Dr. Brigance opposed the motion, contending in part that the waivers are unenforceable under the SSA and the four-factor test established by the Colorado Supreme Court in Jones v. Dressel, 623 P.2d 370 (Colo. 1981). Dr. Brigance also asserted that her common-law negligence claims are not preempted by the PLA and that she presented sufficient evidence to allow her claims to be heard by a jury.
The district court granted VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *10 (D. Colo. Jan. 13, 2017) [*8] . It determined that the Ski School Waiver and Lift Ticket Waiver are enforceable under the factors established by the Colorado Supreme Court in Jones and that the SSA and PTSA do not otherwise invalidate the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *5-9. It then determined that all of Dr. Brigance’s remaining claims fall within the broad scope of the waivers and are therefore barred. 2017 U.S. Dist. LEXIS 5447, [WL] at *10. This appeal followed.
II. DISCUSSION
Dr. Brigance challenges the district court’s enforcement of both the Ski School Waiver and Lift Ticket Waiver, as well as the dismissal of her negligence and negligence per se claims. [HN2] “[B]ecause the district court’s jurisdiction was based on diversity of citizenship, [Colorado] substantive law governs” our analysis of the underlying claims and enforceability of the waivers. Sylvia v. Wisler, 875 F.3d 1307, 2017 WL 5622916, at *3 (10th Cir. 2017) (internal quotation marks omitted). We “must therefore ascertain and apply [Colorado] law with the objective that the result obtained in the federal court should be the result that would be reached in [a Colorado] court.” Id. (internal quotation marks omitted). In doing so, “we must defer to the most recent decisions of the state’s highest court,” although “stare [*9] decisis requires that we be bound by our own interpretations of state law unless an intervening decision of the state’s highest court has resolved the issue.” Id. (internal quotation marks omitted).
Although the substantive law of Colorado governs our analysis of the waivers and underlying claims, [HN3] federal law controls the appropriateness of a district court’s grant of summary judgment and dismissal of claims under Federal Rule of Civil Procedure 12(b)(6). See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). We therefore review the district court’s grant of summary judgment and dismissal of claims pursuant to Rule 12(b)(6) de novo, applying the same standards as the district court. Id.; see also Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *4, 16. “However, we may affirm [the] district court’s decision[s] on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” Stickley, 505 F.3d at 1076 (internal quotation marks omitted).
“Summary judgment should be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *16 (internal quotation marks omitted). Because it is undisputed that all of Dr. Brigance’s claims–including those dismissed pursuant [*10] to Rule 12(b)(6)–fall within the broad scope of either waiver if they are deemed enforceable under Colorado law, the first, and ultimately only, question we must address is whether the Ski School Waiver and Lift Ticket Waiver are enforceable.
[HN4] Under Colorado law, “exculpatory agreements have long been disfavored,” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and it is well-established that such agreements cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). See also Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016) (“Under Colorado common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct.”). “But claims of negligence are a different matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza, 809 F.3d at 1152; accord Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Neither does it always preclude exculpatory agreements as to claims of negligence per se. Espinoza, 809 F.3d at 1154-55.
Accordingly, [HN5] the Colorado Supreme Court has instructed courts to consider the following four factors when determining the enforceability of an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the [*11] contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” J/ones, 623 P.2d at 376. It appears that if an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable. Although consideration of these factors is generally sufficient to determine the enforceability of exculpatory agreements, the Colorado Supreme Court has clarified that “other public policy considerations” not necessarily encompassed in the Jones factors may invalidate exculpatory agreements. See Boles, 223 P.3d at 726 (“[M]ore recently, we have identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.”); see, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232-37 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107.
The district court examined each of the Jones factors and concluded that none of them preclude enforcement of the Ski School Waiver or Lift Ticket Waiver. Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *5-8. It also determined that the provisions of the SSA and PTSA “have no effect on the enforceability” of the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *9. We agree.
A. The Jones Factors
1. Existence of a Duty to the Public
[HN6] The first Jones factor requires us to examine whether there is an “existence of a duty to the public,” Jones, 623 P.2d at 376, or, described another way, “whether [*12] the service provided involves a duty to the public,” Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1109 (10th Cir. 2002). The Colorado Supreme Court has not specified the precise circumstances under which an exculpatory agreement will be barred under this factor, but it has explained that unenforceable exculpatory agreements
generally involve businesses suitable for public regulation; that are engaged in performing a public service of great importance, or even of practical necessity; that offer a service that is generally available to any members of the public who seek it; and that possess a decisive advantage of bargaining strength, enabling them to confront the public with a standardized adhesion contract of exculpation.
Chadwick, 100 P.3d at 467. The Colorado Supreme Court has expressly “distinguished businesses engaged in recreational activities” from the foregoing class of businesses because recreational activities “are not practically necessary” and therefore “the provider[s of such activities] owe[ ] no special duty to the public.” Id.; see also Espinoza, 809 F.3d at 1153 (“Though some businesses perform essential public services and owe special duties to the public, the [Colorado Supreme] [C]ourt has held that ‘businesses engaged in recreational activities’ generally do not.” (quoting Chadwick, 100 P.3d at 467)).
And, indeed, [*13] Colorado courts examining exculpatory agreements involving recreational activities under Colorado law have almost uniformly concluded that the first Jones factor does not invalidate or render unenforceable the relevant agreement. See, e.g., Chadwick, 100 P.3d at 467-69; Jones, 623 P.2d at 376-78; Stone v. Life Time Fitness, Inc., No. 15CA0598, 2016 COA 189M, 2016 WL 7473806, at *3 (Colo. App. Dec. 29, 2016) (unpublished) (“The supreme court has specified that no public duty is implicated if a business provides recreational services.”), cert. denied, No. 17SC82, 2017 Colo. LEXIS 572, 2017 WL 2772252 (Colo. Jun. 26, 2017); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 949 (Colo. App. 2011) (“Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty.”); see also Espinoza, 809 F.3d at 1153-56; Mincin, 308 F.3d at 1110-11; Patterson v. Powdermonarch, L.L.C., No. 16-cv-00411-WYD-NYW, 2017 U.S. Dist. LEXIS 151229, 2017 WL 4158487, at *5 (D. Colo. July 5, 2017) (“Businesses engaged in recreational activities like [defendant’s ski services] have been held not to owe special duties to the public or to perform essential public services.”); Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (“Providing snowmobile tours to the public does not fall within” the first Jones factor.); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (holding white-water rafting is recreational in nature and is therefore “neither a matter of great public importance nor a matter of practical necessity” (internal quotation marks omitted)), aff’d sub nom., Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997).
The relevant services provided by VSRI–skiing and ski lessons–are [*14] clearly recreational in nature. Like horseback riding and skydiving services, see Chadwick, 100 P.3d at 467; Jones, 623 P.2d at 377, skiing and ski lessons are not of great public importance or “matter[s] of practical necessity for even some members of the public,” Jones, 623 P.2d at 377. They therefore do not implicate the type of duty to the public contemplated in the first Jones factor. Although it appears the Colorado Supreme Court and Colorado Court of Appeals have yet to address the first Jones factor within the context of skiing or ski lesson services, the few courts that have considered similar issues have reached the unsurprising conclusion that ski-related services are recreational activities and do not involve a duty to the public. See, e.g., Rumpf v. Sunlight, Inc., No. 14-cv-03328-WYD-KLM, 2016 U.S. Dist. LEXIS 107946, 2016 WL 4275386, at *3 (D. Colo. Aug. 3, 2016); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409 (D. Colo. 1994); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992).
Dr. Brigance fails to address the principle “that businesses engaged in recreational activities that are not practically necessary . . . do not perform services implicating a public duty.” Hamill, 262 P.3d at 949. Instead, she contends VSRI owes a duty to the public because the ski and ski lesson services provided by VSRI implicate a number of additional factors the California Supreme Court relied upon in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (Cal. 1963), to determine whether an exculpatory agreement should be deemed invalid as affecting [*15] public interest.3 Specifically, Dr. Brigance contends VSRI owes a duty to the public because the Colorado ski industry is subject to express regulation under the SSA and PTSA, VSRI is willing to perform its services for any member of the public who seeks them, VSRI maintains an advantage in bargaining strength, and skiers are placed under the complete control of VSRI when riding their lifts.
3 Dr. Brigance separately argues that the waivers are invalid under the provisions and public policies contained within the SSA, PTSA, and PLA. Although she incorporates these arguments in her analysis of the first Jones factor, we address them separately in Section II.B, infra.
The Colorado Supreme Court has cited Tunkl and noted its relevance in determining whether a business owes a duty to the public. Jones, 623 P.2d at 376-77. But when analyzing the first Jones factor, particularly within the context of recreational services, courts applying Colorado law focus on and give greatest weight to whether the party seeking to enforce an exculpatory agreement is engaged in providing services that are of great public importance or practical necessity for at least some members of the public. See, e.g., Espinoza, 809 F.3d at 1153-54; Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 896-97 (D. Colo. 1998); Potter, 849 F. Supp. at 1409; Jones, 623 P.2d at 376-77; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. And the additional factors listed by Dr. Brigance are insufficient to establish that the recreational services offered by VSRI are of great public importance or practically necessary. An activity does not satisfy the first Jones factor simply because it is subject to state regulation. [*16] As we have explained, the first Jones factor does not
ask whether the activity in question is the subject of some sort of state regulation. Instead, [it] ask[s] whether the service provided is of “great importance to the public,” a matter of “practical necessity” as opposed to (among other things) a “recreational one. [Jones,] 623 P.2d at 376-77. And the distinction the Jones factors draw between essential and recreational services would break down pretty quickly if the presence of some state regulation were enough to convert an otherwise obviously “recreational” service into a “practically necessary” one. After all, state law imposes various rules and regulations on service providers in most every field these days–including on service providers who operate in a variety of clearly recreational fields.
Espinoza, 809 F.3d at 1154; see also Chadwick, 100 P.3d at 467-68. Furthermore, Dr. Brigance’s argument regarding VSRI’s bargaining strength is more properly addressed under the third Jones factor, and her remaining arguments concerning VSRI’s willingness to provide services to the public and its control over skiers are not sufficiently compelling to sway us from departing from the principle “that [HN7] no public duty is implicated if a business provides recreational services.” [*17] Stone, 2016 COA 189M, 2016 WL 7473806, at *3.
The district court therefore did not err in concluding that the first Jones factor does not render the Ski School Waiver and the Lift Ticket Waiver unenforceable.
2. Nature of the Service Performed
[HN8] Under the second Jones factor, we examine “the nature of the service performed.” Jones, 623 P.2d at 376. Analysis of this factor is linked to and in many respects overlaps the analysis conducted under the first Jones factor, as it calls for an examination of whether the service provided is an “essential service” or a “matter of practical necessity.” See Espinoza, 809 F.3d at 1153; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. As is evident from our discussion of the first Jones factor, Colorado “courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3; see also Chadwick, 100 P.3d at 467 (noting “recreational activities . . . are not practically necessary”); Jones, 623 P.2d at 377-78 (holding the skydiving service provided by defendants “was not an essential service”); Hamill, 262 P.3d at 949 (acknowledging recreational camping and horseback riding services are not essential or matters of practical necessity). And as previously established, the ski and ski lesson services offered by VSRI are recreational in nature and therefore, like other recreational activities examined by this and other [*18] courts, cannot be deemed essential or of practical necessity. See, e.g., Mincin, 308 F.3d at 1111 (“[M]ountain biking is not an essential activity.”); Squires ex rel. Squires v. Goodwin, 829 F. Supp. 2d 1062, 1073 (D. Colo. 2011) (noting the parties did not dispute that skiing “is a recreational service, not an essential service”); Rowan, 31 F. Supp. 2d at 897 (“[S]kiing is not an essential service.”); Potter, 849 F. Supp. at 1410 (disagreeing with plaintiff’s argument that “ski racing for handicapped skiers rises to the level of an essential service [as] contemplated by Colorado law”); Bauer, 788 F. Supp. at 474 (noting “free skiing[, equipment rentals, and ski lessons] for travel agents do[ ] not rise to the level of essential service[s] contemplated by Colorado law.”).
Dr. Brigance raises no argument specific to this factor other than asserting that “the ski industry is a significant revenue generator for the State of Colorado” and the services provided by VSRI are “public [in] nature.” Aplt. Br. 47. Dr. Brigance cites no authority suggesting that either factor would render the recreational services provided by VSRI essential in nature. And given Colorado courts’ assertion that “recreational services [are] neither essential nor . . . matter[s] of practical necessity,” Stone, 2016 COA 189M, 2016 WL 7473806, at *3, we conclude the district court did not err in determining that the second Jones factor also does not dictate that the waivers be [*19] deemed unenforceable.
3. Whether the Waivers Were Fairly Entered Into
[HN9] The third Jones factor requires us to examine “whether the contract was fairly entered into.” Jones, 623 P.2d at 376. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 262 P.3d at 949 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989)). When engaging in this analysis, we examine the nature of the service involved, Espinoza, 809 F.3d at 1156, the circumstances surrounding the formation of the contract, id., and whether the services provided are available from a source other than the party with which the plaintiff contracted, see Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 950.
The Colorado Court of Appeals has identified “[p]ossible examples of unfair disparity in bargaining power [as] includ[ing] agreements between employers and employees and between common carriers or public utilities and members of the public.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. It has also expressly acknowledged an unfair disparity in bargaining power in residential landlord-tenant relationships, presumably based in part on its holding “that housing rental is a matter of practical necessity to the public.” Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996). But the Colorado Court of Appeals has also held that “this type of unfair disparity [*20] is generally not implicated when a person contracts with a business providing recreational services.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. This is because recreational activities are not essential services or practically necessary, and therefore a person is not “at the mercy” of a business’s negligence when entering an exculpatory agreement involving recreational activities. Hamill, 262 P.3d at 949-50. As we have previously explained, “Colorado courts have repeatedly emphasized that . . . because recreational businesses do not provide ‘essential’ services of ‘practical necessity[,]’ individuals are generally free to walk away if they do not wish to assume the risks described” in an exculpatory agreement. Espinoza, 809 F.3d at 1157; see also Mincin, 308 F.3d at 1111 (noting that a disparity of bargaining power may be created by the “practical necessity” of a service, but that no such necessity existed because “mountain biking is not an essential activity” and therefore the plaintiff “did not enter into the contract from an inferior bargaining position”).
We reiterate, at the risk of redundancy, that the ski and ski lesson services offered by VSRI are recreational in nature and do not constitute essential services or matters of practical necessity. As a result, Dr. Brigance did not enter the Ski [*21] School Waiver or Lift Ticket Waiver from an unfair bargaining position because she was free to walk away if she did not wish to assume the risks or waive the right to bring certain claims as described in the waivers. This conclusion is supported by a number of cases involving similar recreational activities, including those we have previously addressed under the first two Jones factors. See, Jones, 623 P.2d at 377-78 (holding an exculpatory release related to skydiving services was not an unenforceable adhesion contract “because the service provided . . . was not an essential service” and therefore the defendant “did not possess a decisive advantage of bargaining strength over” the plaintiff); see also Squires, 829 F. Supp. 2d at 1071 (“Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage.”); Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993) (“[T]he recreational services offered by [defendant] were not essential and, therefore, [it] did not enjoy an unfair bargaining advantage.”); Bauer, 788 F. Supp. at 475 (“Here, defendants’ recreational services were not essential and, therefore, they did not enjoy an unfair bargaining advantage.”).
Moreover, the circumstances surrounding Dr. Brigance’s entry into the exculpatory agreements indicate she [*22] did so fairly. Dr. Brigance does not identify any evidence in the record calling into question her competency, ability to comprehend the terms of the agreements, or actual understanding of the agreements. Nor does she point to anything in the record reflecting an intent or attempt by VSRI to fraudulently induce her to enter the agreements or to conceal or misconstrue their contents. In addition, there is nothing in the record to suggest Dr. Brigance’s agreement to the terms of the Ski School Waiver was not voluntary. See Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4.
Notwithstanding the well-established law that exculpatory agreements involving businesses providing recreational services do not implicate the third Jones factor, Dr. Brigance argues her assent to the terms of the Lift Ticket Waiver was obtained unfairly and that VSRI had an advantage in bargaining strength. This is so, she contends, because she “did not have a chance to review the exculpatory language contained on the back of the non-refundable [lift] ticket before she purchased it” and that “[o]nce the ticket was purchased, she was forced to accept the exculpatory language or lose the money she invested.” Aplt. Br. 47. Dr. Brigance’s argument fails to account for her [*23] voluntary acceptance of the Ski School Waiver. And although Dr. Brigance asserts she “did not have a chance to review” the Lift Ticket Waiver before purchasing it, she does not identify any evidence that VSRI prevented her from reviewing the Lift Ticket Waiver before she used it to ride the Discovery Lift, and “Colorado courts have repeatedly emphasized that individuals engaged in recreational activities are generally expected to read materials like these.” Espinoza, 809 F.3d at 1157. Most importantly, Dr. Brigance did not raise this argument below and does not provide a compelling reason for us to address it on appeal.4
See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”).
4 In fact, the district court noted that Dr. Brigance “neither disputes the relevant facts nor counters VSRI’s argument that she accepted the contractual terms of the Lift Ticket Waiver by skiing and riding the lifts.” Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4. As a result, the district court concluded Dr. Brigance had agreed to the terms of the Lift Ticket Waiver and would be bound to its terms to the extent it was otherwise enforceable. Id.
For these reasons, the district court did not err in concluding that the third Jones factor does not render the Ski School Waiver or the Lift Ticket Waiver unenforceable.
4. Whether the Parties’ Intent Was Expressed Clearly and Unambiguously
[HN10] The fourth and final Jones factor is “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. The inquiry conducted under this factor “should be whether the intent of the parties was to extinguish liability and [*24] whether this intent was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785. The Colorado Supreme Court has explained that “[t]o determine whether the intent of the parties is clearly and unambiguously expressed, we [may] examine[ ] 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.” Chadwick, 100 P.3d at 467. We may also take into account a party’s subsequent acknowledgement that it understood the provisions of the agreement. Id. In addition, it is well-established that the term “negligence” is not invariably required for an exculpatory agreement to be deemed an unambiguous waiver or release of claims arising from negligent conduct. Id.
The Ski School Waiver contains approximately a page and a half of terms and conditions in small, but not unreadable, font.5 It prominently identifies itself as, among other things, a “RELEASE OF LIABILITY . . . AGREEMENT”–a fact that is reiterated in the subtitle of the agreement by inclusion of the statement “THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.” Aplt. App’x 117. The provisions of the waiver include the signer’s express acknowledgment [*25] and assumption of “ALL INHERENT DANGERS AND RISKS of the Activity, including those of a ‘skier’ (as may be identified by statute or other applicable law),” as well as “all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a lengthy list of specific events and circumstances that includes “lift loading, unloading, and riding.” Id. In addition to this assumption-of-the-risk language, the Ski School Waiver provides that the signer
AGREE[S] TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY CONTRACT AND/OR EXPRESS OR IMPLIED WARRANTY.
Id.
5 Although Dr. Brigance denies that she signed the Ski School Waiver, see supra note 1, she has not made any arguments regarding the readability or font size of the terms and conditions.
The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing [*26] some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.” Id. at 121.
Neither waiver is unduly long nor complicated, unreadable, or overburdened with legal jargon. Most importantly, the intent of the waivers is clear and unambiguous. In addition to the language indicating Dr. Brigance’s assumption of all risks of skiing, inherent or otherwise, both waivers contain clear language stating that Dr. Brigance agreed to hold VSRI harmless for injuries to her person as a result of skiing at Keystone. Moreover, the Ski School Waiver clearly and unambiguously provides that Dr. Brigance agreed to “RELEASE, INDEMNIFY, AND NOT TO SUE” VSRI for personal injuries arising in whole or in part from her participation in ski lessons, including claims based on VSRI’s “ALLEGED OR ACTUAL NEGLIGENCE.” Id. at 117. Dr. Brigance does not argue that any of the language regarding her agreement to hold harmless, indemnify, release, or not to sue VSRI is ambiguous or confusing. [*27] And like this and other courts’ examination of similarly worded provisions, we conclude the relevant release language of the Ski School Waiver and Lift Ticket Waiver cannot be reasonably understood as expressing anything other than an intent to release or bar suit against VSRI from claims arising, in whole or in part, as a result of Dr. Brigance’s decision to ski and participate in ski lessons at Keystone, including claims based on VSRI’s negligence. See Espinoza, 809 F.3d at 1157-58; Mincin, 308 F.3d at 1112-13; Chadwick, 100 P.3d at 468-69; B & B Livery, 960 P.2d at 137-38; Hamill, 262 P.3d at 950-51.
Dr. Brigance’s argument on appeal regarding the fourth Jones factor centers on the assumption-of-the-risk language contained in both waivers. Specifically, Dr. Brigance contends the intent of the waivers is ambiguous because the provisions providing that she assumes all risks of skiing, “inherent or otherwise,” conflict with the SSA because the statute’s provisions only bar a skier from recovering against a ski area operator “for injury resulting from any of the inherent dangers and risks of skiing.” Colo. Rev. Stat. § 33-44-112; see also id. at 33-44-103(3.5). Because of this alleged conflict, Dr. Brigance asserts that she could not know whether she was “releasing [VSRI] of all liability as indicated by the [waivers], or only for the inherent risks of skiing as [*28] mandated by the SSA.” Aplt. Br. 50-51.
Dr. Brigance’s argument is unavailing for a number of reasons. First, it only addresses the assumption-of-the-risk language contained in each waiver. But the more pertinent provisions of the waivers are those regarding Dr. Brigance’s agreement to hold harmless, release, indemnify, and not to sue VSRI. These provisions appear independent from the assumption-of-the-risk language and therefore their plain meaning is unaffected by any potential ambiguity in the “inherent or otherwise” clauses. Dr. Brigance does not contest the clarity of the release provisions and, as previously described, we believe those provisions unambiguously reflect the parties’ intent to release VSRI from claims arising from Dr. Brigance’s participation in ski lessons at Keystone.
Second, the Lift Ticket Waiver’s “assumes all risks, inherent or otherwise” phrase, as well as a similar phrase contained in the Ski School Waiver, are not ambiguous. Rather, their meanings are clear–the signer of the agreement or holder of the ticket is to assume all risks of skiing, whether inherent to skiing or not. The term “otherwise,” when “paired with an adjective or adverb to indicate its contrary”–as [*29] is done in both waivers–is best understood to mean “NOT.” Webster’s Third New Int’l Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. Dr. Brigance offers no alternative reading of the phrases and does not specify how “inherent or otherwise” could be understood as only referring to the inherent risks identified in the SSA. And while the Ski School Waiver contains a provision in which the signer agrees to assume all inherent dangers and risks of skiing as may be defined by statute or other applicable law, the next provision of the agreement clearly expands that assumption of risk, stating that the signer “expressly acknowledge[s] and assume[s] all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a rather extensive list of circumstances or events that may occur while skiing, including “lift loading, unloading, and riding.” Aplt. App’x at 117. That same provision continues, indicating that the signer understands the description of risks in the agreement is “NOT COMPLETE,” but that the signer nevertheless [*30] voluntarily chooses to “EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.” Id. Reading the “inherent or otherwise” phrase in context clearly indicates that, at a minimum, the Ski School Waiver includes an assumption of risk above and beyond the inherent risks and dangers of skiing as defined in the SSA. See Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (“In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.”); Moland v. Indus. Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004) (“The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.”).
Third, the Colorado Supreme Court rejected a similar argument in B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998). There, the Colorado Supreme Court examined an exculpatory agreement that included a statutorily mandated warning that equine professionals are not liable to others for the inherent risks associated with participating in equine activities, “as well as a broader clause limiting liability from non-inherent risks.” Id. at 137-38. It concluded that “the [*31] insertion of a broader clause further limiting liability does not make the agreement ambiguous per se” and instead “merely evinces an intent to extinguish liability above and beyond that provided” in the statute. Id. at 137; see also Hamill, 262 P.3d at 951 (upholding enforcement of an exculpatory agreement that purported to cover “inherent and other risks,” as well as claims against “any legal liability,” and noting that “[t]o hold . . . that the release did not provide greater protection than the release from liability of inherent risks provided by the equine act . . . would render large portions of the agreement meaningless”). Furthermore, the waivers do not conflict with the SSA merely because they purport to cover a broader range of risks than those identified by the statute as inherent to skiing. See Fullick v. Breckenridge Ski Corp., No. 90-1377, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3 (10th Cir. Apr. 29, 1992) (unpublished) (“If one could never release liability to a greater degree than a release provided in a statute, then one would never need to draft a release, in any context.”); Chadwick, 100 P.3d at 468 (“[T]his court has made clear that parties may, consistent with the [equine] statute, contract separately to release sponsors even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.”).
Finally, the single [*32] case relied upon by Dr. Brigance that applies Colorado law is distinguishable. In Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899-900 (D. Colo. 1998), the district court determined an exculpatory agreement was ambiguous and therefore unenforceable in part because it first recited “the risks being assumed in the broadest possible language,” expressly including risks associated with the use of ski lifts, and then later addressed the assumption of risk in terms of the inherent risks and dangers of skiing as defined in the SSA, which indicates the use of ski lifts does not fall within its definition of inherent risks. The release therefore conflicted with itself and the relevant statutory language. See Cunningham v. Jackson Hole Mountain Resort Corp., 673 F. App’x 841, 847 (10th Cir. Dec. 20, 2016) (unpublished). But unlike the waiver at issue in Rowan, the Ski School Waiver and Lift Ticket Waiver do not define the inherent risks of skiing in a manner contrary to the SSA. Nor do they contain conflicting provisions. The non-exhaustive list of inherent risks identified in the Lift Ticket Waiver appears to be drawn directly from the SSA, while the Ski School Waiver indicates inherent risks include those “as may be defined by statute or other applicable law.” Aplt. App’x at 117, 121. In addition, after referencing the inherent risks of skiing and providing that the signer [*33] of the agreement assumes those risks, the Ski School Waiver goes on to identify other, non-inherent risks associated with skiing and ski lessons and expressly provides that the signer assumes those risks. Specifically, the waiver makes clear that the risks assumed by Dr. Brigance include “all additional risks and dangers . . . above and beyond the inherent dangers and risks” of skiing and ski lessons, whether described in the waiver or not, known or unknown, or inherent or otherwise. Id. at 117. Unlike the provisions at issue in Rowan that provided conflicting statements regarding the risks assumed, the waivers here unambiguously provide that Dr. Brigance agreed to not only assume risks and dangers inherent to skiing, but also those risks and dangers not inherent to skiing.
Accordingly, the district court did not err in concluding that the fourth Jones factor does not invalidate the waivers.
***
Based on the foregoing analysis, we agree with the district court that application of the Jones factors to the Ski School Waiver and Lift Ticket Waiver do not render them unenforceable.
B. The SSA and PTSA
Although analysis of the Jones factors is often sufficient to determine the validity of an exculpatory [*34] agreement, the Colorado Supreme Court has “identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.” Boles, 223 P.3d at 726. At various points on appeal, either as standalone arguments or embedded within her analysis of the Jones factors, Dr. Brigance contends the Ski School Waiver and the Lift Ticket Waiver are unenforceable as contrary to Colorado public policy because they conflict with the SSA, PTSA, and the public policies announced therein.6 The district court considered these arguments and determined that the statutes do not affect the enforceability of either waiver as to Dr. Brigance’s claims. We find no reason to disagree.
6 Dr. Brigance also argues that the PLA prohibits use of exculpatory agreements as a defense to claims raised under its provisions and that the Ski School Waiver and Lift Ticket Waiver conflict with the public policies set forth in its provisions. But Dr. Brigance forfeited these arguments by failing to raise them in the district court. Avenue Capital Mgmt. II, 843 F.3d at 884. Although we may consider forfeited arguments under a plain-error standard, we decline to do so when, as here, the appellant fails to argue plain error on appeal. Id. at 885; see also Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011). We decline to address Dr. Brigance’s argument that the waivers are unenforceable because their language is broad enough to encompass willful and wanton behavior for the same reason.
In 1965, the Colorado General Assembly enacted the PTSA with the purpose of assisting “in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.” Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 73 (Colo. 1998). [HN11] The PTSA provides that “it is the policy of the state of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of passenger tramways” and to assure that reasonable design and construction, periodic inspections, and adequate devices and personnel are provided with respect to passenger [*35] tramways. Colo. Rev. Stat. § 25-5-701. The General Assembly empowered the board “with rulemaking and enforcement authority to carry out its functions,” including the authority to “conduct investigations and inspections” and “discipline ski area operators.” Bayer, 960 P.2d at 73-74; see also Colo. Rev. Stat. §§ 25-5-703 to -704, -706 to -707. With its authority, the board adopted the standards, with some alterations, utilized by the American National Standards Institute for passenger tramways. Bayer, 960 P.2d at 73-74.
The General Assembly enacted the SSA fourteen years later. The SSA “supplements the [PTSA]’s focus on ski lifts, but its principal function is to define the duties of ski areas and skiers with regard to activities and features on the ski slopes.” Id. at 74. [HN12] The provisions of the SSA indicate that “it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them” and that the SSA’s purpose is to supplement a portion of the PTSA by “further defin[ing] the legal responsibilities of ski area operators . . . and . . . the rights and liabilities existing between the skier and the ski area operator.” Colo. Rev. Stat. § 33-44-102. [HN13] In addition to the SSA’s provisions defining various responsibilities and duties of skiers and ski area operators, [*36] the 1990 amendments to the SSA limited the liability of ski area operators by providing that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” Id. at 33-44-112. The SSA also provides that any violation of its provisions applicable to skiers constitutes negligence on the part of the skier, while “[a] violation by a ski area operator of any requirement of [the SSA] or any rule or regulation promulgated by the passenger tramway safety board . . . shall . . . constitute negligence on the part of such operator.” Id. at 33-44-104. “The effect of these statutory provisions is to make violations of the [SSA] and [the rules and regulations promulgated by passenger tramway safety board] negligence per se.” Bayer, 960 P.2d at 74. [HN14] Ultimately, the SSA and PTSA together “provide a comprehensive . . . framework which preserves ski lift common law negligence actions, while at the same time limiting skier suits for inherent dangers on the slopes and defining per se negligence for violation of statutory and regulatory requirements.” Id. at 75.
Dr. Brigance contends the waivers conflict with the public policy objectives of the SSA and PTSA because enforcing [*37] either waiver would allow VSRI to disregard its statutorily defined responsibilities and duties. We find Dr. Brigance’s argument unpersuasive.
At the outset, it is worth reiterating that [HN15] under Colorado law exculpatory agreements are not invalid as contrary to public policy simply because they involve an activity subject to state regulation. Espinoza, 308 F.3d at 1154; see also id. at 1155 (acknowledging the Colorado Supreme Court has allowed enforcement of exculpatory agreements with respect to equine activities despite the existence of a statute limiting liability for equine professionals in certain circumstances, while still allowing for liability in other circumstances); Mincin, 308 F.3d at 1111 (“The fact that the Colorado legislature has limited landowner liability in the contexts of horseback riding and skiing is relevant to the question of whether landowner liability might be limited in other circumstances absent a contract.”). Similarly, exculpatory agreements do not conflict with Colorado public policy merely because they release liability to a greater extent than a release provided in a statute. See Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3; Chadwick, 100 P.3d at 468; B & B Livery, 960 P.2d at 137-38.
[HN16] It is true that the SSA and PTSA identify various duties and responsibilities that, if violated, may subject a ski area operator to [*38] liability. But the acts establish a framework preserving common law negligence actions in the ski and ski lift context, Bayer, 960 P.2d at 75, and do nothing to expressly or implicitly preclude private parties from contractually releasing potential common law negligence claims through use of an exculpatory agreement. While “a statute . . . need not explicitly bar waiver by contract for the contract provision to be invalid because it is contrary to public policy,” Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996), Dr. Brigance does not identify a single provision in either the SSA or PTSA suggesting the enforcement of exculpatory agreements in the ski and ski lift context is impermissible or contrary to public policy. Moreover, “Colorado law has long permitted parties to contract away negligence claims in the recreational context” and we “generally will not assume that the General Assembly mean[t] to displace background common law principles absent some clear legislative expression of that intent.” Espinoza, 809 F.3d at 1154, 1155. This principle is particularly relevant in the context of exculpatory agreements because “[t]he General Assembly . . . has shown that–when it wishes–it well knows how to displace background common law norms and preclude the release of civil claims.” Espinoza, 809 F.3d at 1154-55.
Our conclusion that [*39] the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims. In 2002, the Colorado Supreme Court concluded that Colorado public policy prohibits a parent or guardian from releasing a minor’s prospective claims for negligence. See Cooper, 48 P.3d at 1237. The Colorado Supreme Court’s broad holding appeared to apply even within the context of recreational activities, as the relevant minor had injured himself while skiing. Id. at 1231-35. The following year, the General Assembly enacted Colo. Rev. Stat. § 13-22-107, which expressly declared that the General Assembly would not adopt the Colorado Supreme Court’s holding in Cooper. Colo. Rev. Stat. § 13-22-107(1)(b). Instead, the General Assembly explained that, among other things, it is the public policy of Colorado that “[c]hildren . . . should have the maximum opportunity to participate in sporting, recreational, educational, and other activities [*40] where certain risks may exist” and that “[p]ublic, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits.” Id. at 13-22-107(1)(a)(I)-(II). Accordingly, the General Assembly established that “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Id. at 13-22-107(3). The General Assembly’s enactment of § 33-22-107 reaffirms Colorado’s permissive position on the use of exculpatory agreements in the recreational context, and its authorization of parental releases and waivers suggests it did not intend and would not interpret the SSA as barring such agreements for adults.
Notwithstanding the lack of any statutory suggestion that the SSA and PTSA prohibit the enforcement of exculpatory agreements as a matter of public policy, Dr. Brigance contends two Colorado Court of Appeals decisions support her assertion to the contrary. In Stanley v. Creighton, the Colorado Court of Appeals analyzed an exculpatory clause in a residential rental agreement under the Jones factors and concluded that the agreement involved a public interest sufficient to invalidate the exculpatory [*41] clause. 911 P.2d at 707-08. The Stanley court reached this conclusion because, among other things, Colorado has long regulated the relationship between landlords and tenants, the PLA “confirms that landowner negligence is an issue of public concern,” and “a landlord’s services are generally held out to the public and . . . housing rental is a matter of practical necessity to the public.” Id. Although the Stanley court’s partial reliance on the existence of state regulations tends to support Dr. Brigance’s assertion that the existence of the SSA and PTSA render the Ski School Wavier and Lift Ticket Waiver either contrary to public policy or sufficient to satisfy the first Jones factor, the circumstances here are readily distinguishable. Unlike residential housing, skiing is not essential nor a matter of practical necessity. Among other considerations not present here, the Stanley court “placed greater emphasis on the essential nature of residential housing” and “alluded to a distinction between residential and commercial leases, implying that an exculpatory clause might well be valid in the context of a commercial lease.” Mincin, 308 F.3d at 1110.
Similarly, Dr. Brigance’s reliance on Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983), does not alter our conclusion. In Phillips [*42]
, the Colorado Court of Appeals stated that “[s]tatutory provisions may not be modified by private agreement if doing so would violate the public policy expressed in the statute.” Id. at 987. Applying this principle, the Phillips court concluded that because the SSA “allocate[s] the parties’ respective duties with regard to the safety of those around them, . . . the trial court correctly excluded a purported [exculpatory] agreement intended to alter those duties.” Id. But apparently unlike the agreement at issue in Phillips, the Ski School Waiver and Lift Ticket Waiver do not appear to alter the duties placed upon VSRI under the SSA. See, Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3. And the court’s application of this principle to the SSA appears to be inconsistent with the more recent pronouncements by the Colorado Supreme Court and General Assembly regarding Colorado policies toward the enforceability of exculpatory agreements in the context of recreational activities. Moreover, as detailed above, the SSA and PTSA do not express a policy against exculpatory agreements.
“Given all this,” particularly the SSA’s and PTSA’s silence with respect to exculpatory agreements, “we do not think it our place to adorn the General Assembly’s handiwork with revisions to [*43] the [SSA, PTSA, and] common law that it easily could have but declined to undertake for itself.” Espinoza, 809 F.3d at 1155.
In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” Espinoza, 809 F.3d at 1153. And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.
III. CONCLUSION
We AFFIRM the district court’s grant of summary judgment in favor of VSRI and, on this alternative basis, its partial grant of VSRI’s motion to dismiss.
TV “fitness race” creates “want to be’s” and “look a likes” and a lawsuit.
Posted: August 14, 2023 Filed under: Assumption of the Risk, Health Club, Indoor Recreation Center, Pennsylvania | Tags: assumption of the risk, Falling, fitness race, Hang Boards, Inherent Risk, Ninja, Ninja race, No Duty Rule, Urban Air, Warrior Course Leave a commentThe “No Duty Rule” is another way of saying the plaintiff failed to prove the Defendant owed them a duty. In this lawsuit, there was no duty because the risk that caused the injury was inherent to the activity.
Barrett v. New Am. Adventures, LLC (W.D. Pa. 2023)
State: Pennsylvania, United States District Court, W.D. Pennsylvania, Pittsburgh
Plaintiff: Courtney Barrett
Defendant: New American Adventures, LLC, a Pennsylvania limited liability company; One American Way, LLC, a Pennsylvania limited liability company, and; and UATP Management, LLC, a Texas limited liability company
Plaintiff Claims: negligence
Defendant Defenses: no duty
Holding: For the Defendants
Year: 2023
Summary
The risk the plaintiff encountered was inherent to the activity, therefore the defendant did not owe a duty to the plaintiff. No duty, then there is no negligence and no lawsuit.
Facts
This is a personal injury case brought by Plaintiff for injuries she received on November 23, 2018, while participating on an obstacle course called the Warrior Course at Urban Air Trampoline and Adventure Park in Cranberry Township, Pennsylvania (“Urban Air”). Urban Air is a franchise trampoline and adventure park owned and operated by Defendant New American Adventures, LLC (“NAA”). Defendant NAA is the franchisee and Defendant UATP Management Inc. (“UATP”) is the franchisor. Defendant NAA leases the premises from Defendant One American Way, LLC (“One American”) which was a landlord out of possession of the premises at the time of the incident.
At the time of the incident, Plaintiff was 34 years old and a resident of Mammoth Lakes, California with her partner, Christopher Hodges, and their two children. Plaintiff was an accomplished athlete in high school in track and field performing the long jump, triple jump, and 100 and 200 meter sprint races. She was also a cheerleader. She attended a dance and gymnastics school and was heavily involved in dance gymnastics, cheering, and fitness. Following high school, Plaintiff participated in competitive cheerleading for the Pittsburgh Storm for two years. She also competed in the Arnold Schwarzenegger Fitness Expo in Columbus, Ohio where she won third place. Additionally, Plaintiff has skied since the age of four locally at Seven Springs Mountain Resort and Hidden Valley Resort and continued to do so in California, including working at the Mammoth Ski Resort. Prior to attending Urban Air, Plaintiff had been to other trampoline and amusement parks with Mr. Hodges and their children.
Plaintiff was visiting her parents for the Thanksgiving Holiday and went to Urban Air with Mr. Hodges, their two children, her sister Alexandra Barrett, and her parents on November 23, 2018. Plaintiff testified that she understood the concept if a person is engaged in a warrior course like adventure where you are hanging, a person can fall wrong and injure themself. She further understood that it was possible that she might injure herself, including breaking a bone, when participating in activities at an adventure park. Plaintiff would rate her skill level as medium to high given her experience as a former athlete, gymnast, and track and field athlete. Before she decided to participate in the Warrior Course, she had in mind that she had enough skill and experience to complete the course.
Upon approaching the Warrior Course, Plaintiff went to the expert lane with two blue grip hang boards which had a gap in between when the incident occurred. According to Plaintiff, you had to shimmy your way hanging on to the end of the plank and propel your body to grab the next one. She acknowledged there were balls in the ball pit. Plaintiff knew when she started the Warrior Course that there was a possibility she would not finish and that she could slip and not catch the second plank and that if she missed, she would fall into the area below. As Plaintiff went to swing from the first board to the second board, she either slipped off (one or both hands) or she remembered thinking “oh, I’m just going to fall into the ball pit below.” Plaintiff went through the balls and landed on the surface below injuring her knee.
The defendant filed a motion for summary judgment claiming
1) Plaintiff’s claims of negligence for injury she suffered falling off the Warrior Course attraction at Urban Air are barred by the “no-duty” rule; 2) Defendant One American was a landlord out of possession of the premises; and 3) The record is devoid of facts establishing Defendants’ conduct was reckless such that Plaintiff is not entitled to punitive damages.
This is the decision concerning that motion.
Analysis: making sense of the law based on these facts.
Negligence requires the plaintiff proving four requirements. The first is the defendant owed the plaintiff a duty. Proving this has evolved in some states to the “No Duty Rule.” There is no duty owed to the plaintiff. Therefore, the plaintiff can’t sue. In Pennsylvania and in this case, the defendant proved there was no duty owed, the No Duty Rule was applicable, and the case was dismissed.
Under Pennsylvania law, there are four states, like all states, to prove negligence:
To bring a claim of negligence under Pennsylvania law, a plaintiff must show that: (1) the defendant had a duty or obligation recognized by law; (2) the defendant breached that duty; (3) a connection exists between the breach and the duty; and (4) the breach created actual loss or damage.
In this case, the defendant argued that they had no duty to protect the plaintiff from harm because the risk the plaintiff undertook was an inherent risk of the sport or activity. “Specifically, Defendants submit that they had no duty to protect Plaintiff from the inherent risk of falling from the Warrior Course and, thus, summary judgment is warranted.”
The “no-duty” rule provides that “an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity. “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant…and there can be no recovery based on allegations of negligence. Pennsylvania applies the “no-duty” rule to sports, recreation, and places of amusement.
The court then made a statement that some courts seem to forget. “To that end, the severity of the injury, whether minor or extreme, has no bearing on whether the “no-duty” rule applies.”
The court then went on to state the two-part test under Pennsylvania law to determine if the no duty rule applies.
1) whether the user was engaged in the amusement activity at the time of the injury; and
2) whether the injury arose out of a risk inherent in the amusement activity.
When both questions are answered in the affirmative, summary judgment is warranted. “If those risks are not inherent, traditional principles of negligence apply and [the Court] must determine what duty,” if any, a defendant owes to a plaintiff, whether the defendant breached that duty, and whether the breach caused the plaintiff’s injuries.
The first part of the test was easy. The plaintiff was at the defendant’s location to have fun.
Here, there is no question that at the time of the injury Plaintiff was engaged in the Warrior Course attraction at Urban Air. Specifically, Plaintiff testified that she was on the Warrior Course and in the process of swinging from the first plank or board to the second one when she slipped off and fell into the ball pit below injuring her knee. Therefore, the first question is answered in the affirmative.
To answer the second part of the two-part test the court defined “inherent” as applied to the risk the plaintiff encountered.
A risk that is “common, frequent, and expected” is an inherent risk. Though a plaintiff’s subjective awareness of a specific inherent risk is not required
Based on the plaintiff’s testimony during depositions, the court determined that falling was an inherent risk of hanging above the ground on a board.
She testified that (based on her experiences involving other sports and recreational activities, as well as her participation in other adventure parks) she knew there was a possibility that while on the Warrior Course she could slip, lose her grip, and/or not catch the second plank. She also testified that she understood that if that happened, she would fall to the area below that contained the balls and could be injured.
The court went on to reinforce its decision by pulling information from the Plaintiff’s expert witness who also surmised that when hanging above the ground by your hands you could fall.
Additionally, Plaintiff’s expert stated that “[i]t is not unreasonable to expect that users will lose their grip and either unintentionally or intentionally fall.” He further stated that a fall from the Warrior Course “would not be unexpected.” Id. at p. 13. In fact, Plaintiff acknowledges that participating in an obstacle course like the Warrior Course presents inherent risk of injury from a fall.
It is pretty bad, when your expert report is used against you. However, it is also pretty obvious that falling is a risk whenever you are above the ground.
The plaintiff then argued that the risk at issue had a narrower focus. That the risk was not falling, but landing. In this case, the balls used to land on were not sufficient to protect the plaintiff from injury. However, the court rejected this argument because the risk was falling, the result was landing. The result is not part of the definition of the risk.
Pennsylvania courts “‘have rejected attempts by plaintiffs to define the injury producing risks in a very specific and narrow manner. Instead, they look to the “‘general risk’ that gave rise to the accident.”
The plaintiff then went further and argued that this was not an inherent risk because it was special. Plaintiff argued the case law where the injury was produced by a risk that other courts had determined was not inherent to the activity. In those cases, the injury was rare, not planned for and could not be defined as something that would happen every time the risk was encountered.
These cases, however, just as with cases that have held certain risks are inherent to a particular activity, turn on the relevant facts and the activity in question in determining if a risk is inherent. None, however, involves a Warrior Course type of attraction. Thus, the Court turns to the facts and activity in this case.
The court summed up its analysis in this way.
As discussed herein above, there is no doubt that the risk of injury from falling into the ball pit while participating in the Warrior Course is “a common, frequent, and expected” part of engaging in this activity. It is part and parcel to the attraction. As Plaintiff admits, “[t]here can be little doubt that participating in an obstacle court contains a risk of injury, particularly from a fall.” In fact, a fall into the ball pit from this type of obstacle course is more likely than not. It is a quintessential risk of the Warrior Course. To that end, the Court finds the risk of falling from the planks is an “inherent” risk and a subsequent injury cannot be removed from the Warrior Course without altering the fundamental nature of the activity.
The final argument of the plaintiff was the No Duty Rule should not apply because the defendants deviated from industry customs or standards. Instead of using balls, they should have used foam in the pit. However, again, the court looked at the inherent risk. The inherent risk is falling when hanging from your arms above the ground. The result is not part of the risk.
Plaintiff suggests that Defendants should have used foam instead of plastic balls to minimize the risk and/or to ensure the balls in the pit were always level and that Defendants should have advised her not to land with a straight leg. These arguments go to negligence principles, not as to salient question of whether the risk was inherent. The question of inherent risk must be determined first. “[W]hen inherent risks are involved, negligence principles are irrelevant,” the inquiry is over, and summary judgment is proper. Therefore, Plaintiff’s arguments in this regard, and the evidence submitted to support them, fail to raise a genuine issue of material fact. Thus, the Court finds summary judgment in favor of Defendants is warranted.
So Now What?
I have continuously reminded people that the first step in determining if anyone has a legitimate lawsuit against is, did you owe the plaintiff a duty and did you breach the duty. People believe that just because they are injured, that someone owes them money. I tell them that before I can turn a claim over to the insurance company, I have to know what we, the defendant did wrong. I ask, “What did we do wrong.” Rarely do I get an answer, and if I do, I explain that we did not do what they said we did. Most time, though, the injured person cannot define what we did wrong.
If we did not do something wrong, then we probably did not have a duty to the injured person and thus are not liable.
In Pennsylvania, that has evolved into a rule, the No Duty Rule. There cannot be a claim for negligence unless all four of the requirements to prove negligence have been met. The first is, did the defendant owe a duty to the plaintiff.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Barrett v. New Am. Adventures, LLC (W.D. Pa. 2023)
Posted: August 14, 2023 Filed under: Assumption of the Risk, Health Club, Indoor Recreation Center, Pennsylvania | Tags: assumption of the risk, duty, Inherent Risk Urban Air, Negligence, No Duty Rule, Warrior Race Leave a commentBarrett v. New Am. Adventures, LLC (W.D. Pa. 2023)
COURTNEY BARRETT, AN ADULT INDIVIDUAL; Plaintiff,
v.
NEW AMERICAN ADVENTURES, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY; ONE AMERICAN WAY, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY, AND; AND UATP MANAGEMENT, LLC, A TEXAS LIMITED LIABILITY COMPANY; Defendants,
No. 2:20-CV-01813-CRE
United States District Court, W.D. Pennsylvania, Pittsburgh
June 30, 2023
CYNTHIA REED EDDY, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
This civil action was initiated by Plaintiff alleging one count of negligence against each of the three Defendants arising out of an injury from a fall by Plaintiff at Urban Air Trampoline and Adventure Park on November 23, 2018. This Court has diversity jurisdiction pursuant to 28 U.S.C. §1332.
Presently before the Court is Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45) and Defendants’ Motion for Summary Judgment (ECF No. 47). Both Motions are brought pursuant to Federal Rule of Civil Procedure 56. The Motions are fully briefed and ripe for disposition.
For the reasons that follow, Defendants’ Motion for Summary Judgment (ECF No. 47) is granted and Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45) is denied as moot.
II. STANDARD OF REVIEW
a. Federal Rule of Civil Procedure 56
The standard for assessing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is well-settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.
On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Hudson v. Proctor & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). When reviewing cross-motions for summary judgment, the court is to view the evidence in the light most favorable to the nonmoving party with respect to each motion. F.R.C.P. 56. It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant’s favor with respect to that issue. Id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial’.” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.
A plaintiff may not, however, rely solely on his complaint to defeat a summary judgment motion. See, e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). Allegations made without any evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000).
This is a personal injury case brought by Plaintiff for injuries she received on November 23, 2018, while participating on an obstacle course called the Warrior Course at Urban Air Trampoline and Adventure Park in Cranberry Township, Pennsylvania (“Urban Air”). Urban Air is a franchise trampoline and adventure park owned and operated by Defendant New American Adventures, LLC (“NAA”). Defendant NAA is the franchisee and Defendant UATP Management Inc. (“UATP”) is the franchisor. Defendant NAA leases the premises from Defendant One American Way, LLC (“One American”) which was a landlord out of possession of the premises at the time of the incident.
At the time of the incident, Plaintiff was 34 years old and a resident of Mammoth Lakes, California with her partner, Christopher Hodges, and their two children. Plaintiff was an accomplished athlete in high school in track and field performing the long jump, triple jump, and 100 and 200 meter sprint races. She was also a cheerleader. She attended a dance and gymnastics school and was heavily involved in dance gymnastics, cheering, and fitness. Following high school, Plaintiff participated in competitive cheerleading for the Pittsburgh Storm for two years. She also competed in the Arnold Schwarzenegger Fitness Expo in Columbus, Ohio where she won third place. Additionally, Plaintiff has skied since the age of four locally at Seven Springs Mountain Resort and Hidden Valley Resort and continued to do so in California, including working at the Mammoth Ski Resort. Prior to attending Urban Air, Plaintiff had been to other trampoline and amusement parks with Mr. Hodges and their children.
Plaintiff was visiting her parents for the Thanksgiving Holiday and went to Urban Air with Mr. Hodges, their two children, her sister Alexandra Barrett, and her parents on November 23, 2018. Plaintiff testified that she understood the concept if a person is engaged in a warrior course like adventure where you are hanging, a person can fall wrong and injure themself. She further understood that it was possible that she might injure herself, including breaking a bone, when participating in activities at an adventure park. Plaintiff would rate her skill level as medium to high given her experience as a former athlete, gymnast, and track and field athlete. Before she decided to participate in the Warrior Course, she had in mind that she had enough skill and experience to complete the course.
Upon approaching the Warrior Course, Plaintiff went to the expert lane with two blue grip hang boards which had a gap in between when the incident occurred. According to Plaintiff, you had to shimmy your way hanging on to the end of the plank and propel your body to grab the next one. She acknowledged there were balls in the ball pit. Plaintiff knew when she started the Warrior Course that there was a possibility she would not finish and that she could slip and not catch the second plank and that if she missed, she would fall into the area below. As Plaintiff went to swing from the first board to the second board, she either slipped off (one or both hands) or she remembered thinking “oh, I’m just going to fall into the ball pit below.” Plaintiff went through the balls and landed on the surface below injuring her knee.
On November 20, 2020, Plaintiff filed a Complaint in this Court based on diversity. (ECF No. 1). Thereafter Plaintiff filed an Amended Complaint. (ECF No. 11). Count I of the Amended Complaint is a claim of negligence against Defendant NAA. Id. Count II asserts a claim of negligence against Defendant One American. Id. Count III is a claim of negligence against Defendant UATP. Id.
IV. DISCUSSION
A. Defendants’ Motion for Summary Judgment (ECF No. 47)
Defendants seek summary judgment on three grounds: 1) Plaintiff’s claims of negligence for injury she suffered falling off the Warrior Course attraction at Urban Air are barred by the “no-duty” rule; 2) Defendant One American was a landlord out of possession of the premises; and 3) The record is devoid of facts establishing Defendants’ conduct was reckless such that Plaintiff is not entitled to punitive damages. (ECF No. 47). As a preliminary matter regarding to the second ground, Defendants submit that American Way owes no duty to Plaintiff as a landlord out of possession of the premises. (ECF No. 49, pp. 14-17). Thus, Defendants contend that summary judgment as to Count II is warranted. Id. In Response, Plaintiff “acknowledges that there is insufficient evidence to establish liability on the part of Defendant One American and that summary judgment is appropriate.” (ECF No. 55, p. 2). Plaintiff further admits that Defendant One American is not liable as a matter of law. (ECF No. 57, p. 12, ¶76). Based on the same, the Court finds summary judgment as to Defendant One American is warranted. Accordingly, Defendants’ Motion for Summary Judgment (ECF No. 47) is granted as to Defendant One American and Count II is dismissed with prejudice.
The Court now turns to Defendants’ main argument that Plaintiff’s claims of negligence are barred by the “no-duty” rule. (ECF No. 49). To bring a claim of negligence under Pennsylvania law, a plaintiff must show that: (1) the defendant had a duty or obligation recognized by law; (2) the defendant breached that duty; (3) a connection exists between the breach and the duty; and (4) the breach created actual loss or damage. Krentz v. Consol. Rail Corp., 910 A.2d 20, 27-28 (Pa. 2006). Defendants assert that Plaintiff cannot show the first element – a legal duty recognized by law. (ECF No. 49). Specifically, Defendants submit that they had no duty to protect Plaintiff from the inherent risk of falling from the Warrior Course and, thus, summary judgment is warranted. (ECF No. 49).
The “no-duty” rule provides that “an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010), citing Restatement (Second) of Torts §496A, CMTT c, 2 (where plaintiff has entered voluntarily into some relation with defendant which he knows to involve the risk, he is regarded as tacitly or impliedly agreeing to relieve defendant of responsibility, and to take his own chances); Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 343-44 (citing Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546 (Pa. 1978). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant…and there can be no recovery based on allegations of negligence. Chepkevich. 2 A.3d at 1186, citing Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000). Pennsylvania applies the “no-duty” rule to sports, recreation, and places of amusement. Chepkevich, 2 A.3d at 1186.
To that end, the severity of the injury, whether minor or extreme, has no bearing on whether the “no-duty” rule applies. Richmond v. Wild River Waterpark, Inc., No. 1972 MDA 2013, 2014 WL 10789957, at *1 (Pa. Super. Ct. Oct. 6, 2014). Rather, there is a two-part inquiry to determine if the “no-duty” rule applies:
1) whether the user was engaged in the amusement activity at the time of the injury; and
2) whether the injury arose out of a risk inherent in the amusement activity.
Chepkevich, 2 A.3d at 1186. When both questions are answered in the affirmative, summary judgment is warranted. Id. “If those risks are not inherent, traditional principles of negligence apply and [the Court] must determine what duty,” if any, a defendant owes to a plaintiff, whether the defendant breached that duty, and whether the breach caused the plaintiff’s injuries. Quan Vu v. Ski Liberty Operating Corp., 295 F.Supp.3d 503, 507 (M.D. Pa. 2018), aff’d sub nom. Vu v. Ski Liberty Operating Corp., 763 Fed.Appx. 178 (3d Cir. 2019).
Here, there is no question that at the time of the injury Plaintiff was engaged in the Warrior Course attraction at Urban Air. (ECF No. 45-2, p. 48). Specifically, Plaintiff testified that she was on the Warrior Course and in the process of swinging from the first plank or board to the second one when she slipped off and fell into the ball pit below injuring her knee. (ECF No. 45-2, p. 57). Therefore, the first question is answered in the affirmative.
As to the second inquiry, the key question here is whether Plaintiff’s injury arose out of a risk inherent of the Warrior Course. A risk that is “common, frequent, and expected” is an inherent risk. Chepkevich, 2 A.3d at 1187. Though a plaintiff’s subjective awareness of a specific inherent risk is not required, Quan Vu, 295 F.Supp.3d at 509, in this case, Plaintiff’s own testimony is telling. She testified that (based on her experiences involving other sports and recreational activities, as well as her participation in other adventure parks) she knew there was a possibility that while on the Warrior Course she could slip, lose her grip, and/or not catch the second plank. (ECF No. 45-2, p. 67). She also testified that she understood that if that happened, she would fall to the area below that contained the balls and could be injured. Id. at 67-68.
Additionally, Plaintiff’s expert stated that “[i]t is not unreasonable to expect that users will lose their grip and either unintentionally or intentionally fall.” (ECF No. 48-10, p. 12). He further stated that a fall from the Warrior Course “would not be unexpected.” Id. at p. 13. In fact, Plaintiff acknowledges that participating in an obstacle course like the Warrior Course presents inherent risk of injury from a fall. (ECF No. 56, p. 9, 14-16). Courts should adopt “‘a practical and logical interpretation of what risks are inherent to the sport….'” Vu, 763 Fed.Appx. at 181, quoting, Chepkevich., 2 A.3d at 1187-88. Applying the same, the Court finds that falling from the planks or boards on the Warrior Course into the ball pit below and any subsequent injury arising therefrom is an obvious danger when engaging in the Warrior Course attraction and is an inherent risk.
Plaintiff submits, however, that “[f]alling into a shallow pit filled with plastic balls is not an ‘inherent’ risk” suggesting that it is not necessary to the fundamental nature of participating in the Warrior Course. Id. at 14. This Court is unpersuaded by the framing of the issue in this manner. Pennsylvania courts “‘have rejected attempts by plaintiffs to define the injury producing risks in a very specific and narrow manner.'” Quan Vu, 295 F.Supp.3d at 508, quoting Cole v. Camelback Mountain Ski Resort, No. 16-cv-1959, 2017 WL 4621786 (M.D. Pa. Oct. 16, 2017). Instead, they look to the “‘general risk’ that gave rise to the accident.” Id. citing Chepkevich, 2 A.3d at 1186.
Moreover, in support of her position, Plaintiff sting cites cases where certain risks were held not to be inherent to a particular activity. Id. at p. 15, citing Telega v. Security Bureau, Inc., 719 A.2d 372 (Pa. Super. Ct. 1998)(involved a spectator who caught a football and was subsequently attacked by fans); Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978)(spectator of baseball game hit by a batted ball in an interior walkway); Sheerer v. W.G. Wade Shows, Inc., No. 11-cv-1496, 2012 WL 5905039 (M.D. Pa. Nov. 26, 2012)(a child’s arm injured when it was caught between the cart he was in and the wall inside the trailer that housed the ride); Perez v. Great Wolf Lodge, 200 F.Supp.3d 471 (M.D. Pa. 2016)(weight limit of participants on a waterslide attraction exceeded weight limitation and subsequently one participant was somehow separated from the tube resulting in injuries). These cases, however, just as with cases that have held certain risks are inherent to a particular activity,[3] turn on the relevant facts and the activity in question in determining if a risk is inherent. None, however, involves a Warrior Course type of attraction. Thus, the Court turns to the facts and activity in this case.
As discussed herein above, there is no doubt that the risk of injury from falling into the ball pit while participating in the Warrior Course is “a common, frequent, and expected” part of engaging in this activity. It is part and parcel to the attraction. As Plaintiff admits, “[t]here can be little doubt that participating in an obstacle court contains a risk of injury, particularly from a fall.” (ECF No. 56, at p. 16). In fact, a fall into the ball pit from this type of obstacle course is more likely than not. (ECF No. 48-10, p. 13). It is a quintessential risk of the Warrior Course. To that end, the Court finds the risk of falling from the planks is an “inherent” risk and a subsequent injury cannot be removed from the Warrior Course without altering the fundamental nature of the activity. As set forth above, if the risk is inherent, an owner or operator has no duty to protect the user from it and the user cannot recover for any alleged negligence on the part of the owner/operator. See, Quan Vu, 295 F.Supp.3d at 507-09; Chepkevich. 2 A.3d at 1186. Accordingly, the “no-duty” rule applies here.
In opposition, however, Plaintiff also contends that the “no-duty” rule does not apply here because there is evidence that Defendants deviated “from established custom” by failing to meet industry standards. (ECF No. 56, p. 8-14). To that end, Plaintiff points to her experts who opine that the Warrior Course fails to meet industry standards and that “Defendant NAA failed to properly maintain and operate the Warrior Course within the standards set forth in the operations manual for the Warrior Course.” (ECF No. 56, pp. 10-14). For example, Plaintiff suggests that Defendants should have used foam instead of plastic balls to minimize the risk and/or to ensure the balls in the pit were always level and that Defendants should have advised her not to land with a straight leg. These arguments go to negligence principles, not as to salient question of whether the risk was inherent. The question of inherent risk must be determined first. See, Quan Vu, supra; Jones, supra; Telega, supra. “[W]hen inherent risks are involved, negligence principles are irrelevant,” the inquiry is over, and summary judgment is proper. Quan Vu, 295 F.Supp.3d at 509. Therefore, Plaintiff’s arguments in this regard, and the evidence submitted to support them, fail to raise a genuine issue of material fact. Thus, the Court finds summary judgment in favor of Defendants is warranted.
Consequently, Defendant’s Motion for Summary Judgment (ECF No. 47) is granted.[4]
B. Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45)
Plaintiff maintains that summary judgment is warranted as to Defendants’ affirmative defense of release, consent, and/or waiver. (ECF No. 45). To that end, Plaintiff contends that she did not sign the release and waiver agreement and she did not give authority to anyone to sign a waiver and release on her behalf. (ECF No. 46). Specifically, Plaintiff submits that there is no genuine issue of material fact that Plaintiff did not sign the waiver, that Mr. Hodges did not have authority (express or implied) to sign the waiver on her behalf, that there is no evidence of apparent authority, and there is no evidence of authority by estoppel. (ECF No. 46). Thus, Plaintiff seeks a partial summary judgment as to the defense of release, consent, and/or waiver. (ECF No. 45). Since the Court has granted summary judgment in favor of Defendants as to all of Plaintiff’s claims, Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45) is denied as moot.
V. CONCLUSION
The Court is not unsympathetic to Plaintiff’s injury, but the extent of her injury is of no moment when considering the issue of whether the “no-duty” rule applies. Based on the foregoing, Defendants’ Motion for Summary Judgment (ECF No. 47) is granted and Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45) is denied as moot.
An appropriate Order follows.
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Notes:
[1] All parties have consented to jurisdiction before a United States Magistrate Judge; therefore, the Court has the authority to decide dispositive motions, and to eventually enter final judgment. See 28 U.S.C. § 636, et seq.
[2] There are cross motions for summary judgment pending. (ECF Nos. 45 and 47). As set forth above, when reviewing cross-motions for summary judgment, the court is to view the evidence in the light most favorable to the non-moving party with respect to each motion. F.R.C.P. 56. In this case, the Court finds Defendants’ Motion to be dispositive of the issues in this case. Therefore, the facts will be viewed in the light most favorable to Plaintiff. The background facts are taken from the admitted undisputed facts.
[3]
See, e.g. Quan Vu, supra (collecting cases holding certain risks are inherent to a particular activity).
[4] As an alternative type of argument, Defendants argue that the record is devoid of facts establishing Defendants’ conduct was reckless such that Plaintiff is not entitled to punitive damages. (ECF No. 47). Since this Court has found summary judgment is proper as to Plaintiff’s negligence claims, the issue is moot and the Court makes no comment on the same.
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Scouting Experience
Posted: August 2, 2023 Filed under: Uncategorized Leave a commentJames (Jim) H. Moss
Thank you to Earl van Kirk, Jr., Eagle Scout & My Scoutmaster
Jim Moss learned to read by reading Boy’s Life. At age 7 he enrolled in the Cub Scouts, moved on to Boy Scouting and with the help of parents and Earl van Kirk Jr. became an Eagle Scout. He was the Lodge Vice Chief, Regional Vice Chief of the OA and a Vigil member and attended three National OA Conferences as a youth.
That lifelong love of the outdoors continued through 11 years of working at BSA Summer Camps, a degree in Environmental Interpretation and a career in the law specializing in Outdoor Recreation. His first job after college was as a District Executive for the BSA in Wheeling WV.
Jim has worked on staff of two National Jamborees, attended two Philmont treks, staffed five National Law Enforcement Exploring Conferences, one National Exploring Conference, a BSA SAR conference staff, and held most of the volunteer positions in Scouting and Exploring.
Jim was the DAC Exploring Officine’s Association Advisor from 1987 to 1992 and received the District Award of Merit from the Exploring Division for his work. In 2017 he received the District Award of Merit from the Timberline District.
Jim is the son of an Eagle Scout, the brother of an Eagle Scout and the uncle to an Eagle Scout as well as the son of two Wood badgers and two Silver Beavers and a DES.
Jim is an attorney in Littleton and the author of five books and contributed to the BSA Fieldbook.
He currently is the serving on the Board of Directors of the Denver Area Council, BSA and is serving as Council Youth Protection Chairman and on the 2019 Council Camporee Executive Committee.
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National Council |
Contributor Risk Management Chapter BSA Fieldbook |
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Greater Colorado Council
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Central Ohio Council |
1980–1985 Exploring District, Columbus, OH
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Wheeling Area Council |
1977–1978 Wheeling, WV District Executive
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Dan Beard Council
Muskingum Valley Council
Wheeling Area Council |
1962 – 1963 Cincinnati, Cub Scout 1963–1980 Zanesville, OH
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Scouting Education |
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Family |
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Release signed while checking in at a resort stopped heir’s claims when the decedent drowned while canoeing.
Posted: June 26, 2023 Filed under: California, Paddlesports, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Canoeing, drowning, Estate, Express Assumption of the Risk, Gross negligence, Mayacamas Holdings LLC, Mayacamas Ranch, Release, Unambguous Language, Unambigous, Waiver of Liability Leave a commentCompare the release and what the court said it covered in this case to the narrow interpretation of a release by Wisconsin law.
Estate of Johnson v. Mayacamas Holdings LLC (Cal. App. 2021)
State: California: California Court of Appeals, First District, Fifth Division
Plaintiff: Estate of Lamerle Johnson, Sr., Danielle Martin Johnson, LaMerle Johnson, Jr., and Deja Thomas
Defendant: Mayacamas Holdings LLC
Plaintiff Claims: general negligence, premises liability, and wrongful death, alleging that Mayacamas Ranch LLC negligently owned, possessed, leased, maintained, operated, designed, inspected, supervised, managed, and controlled the resort premises
Defendant Defenses: Release and Assumption of the Rik
Holding: For the defendants
Year: 2021
Summary
The deceased signed a release when checking into the resort. During a hike, the deceased and others found a lake and canoes. They parties canoed on the lake with the deceased eventually falling out of his canoe and drowning.
The plaintiffs claim the release did not name and thus did not cover all the defendants and did not identify canoeing as a risk. The court found the release was written broadly enough to cover the defendants and the risks the decedent encountered.
Facts
Mayacamas Ranch was a resort in Calistoga. The property included a “Building Parcel,” with guest cottages, a man-made pool, and other structures, and a “Lake Parcel,” with a pond called Hidden Lake. On the shore of Hidden Lake were at least two 12-foot fiberglass canoes. An unmarked white bin, containing life vests, was nearby.
At the time relevant to this case, the Building Parcel of Mayacamas Ranch was owned by respondent Mayacamas Holdings LLC (Mayacamas Holdings), and the Lake Parcel was owned by respondent Profit Recovery Center. Both parcels were operated and managed by respondent Paradise With Purpose, a hospitality management company.[1]
In December 2016, Johnson attended a retreat at Mayacamas Ranch hosted by Rockwood Leadership Institute. Upon his arrival, he received a “Release & Waiver of Liability,” which the resort required guests to review and sign before they were assigned rooms and given keys. Johnson signed the release on December 5, 2016.
On December 6, 2016, Johnson and another guest, Troy Williams, went hiking and “stumbled upon” Hidden Lake. Johnson took one of the canoes onto the water, apparently without incident.
On December 7, 2016, Johnson, Williams, and two other guests (Heracio Ray Harts and Eddy Zheng) went hiking before the day’s scheduled activities. They arrived at Hidden Lake and took turns taking the two canoes onto the water. They did not locate any life vests; although they found the white bin, they could not open it.
While Johnson and Williams were in their respective canoes on Hidden Lake, Johnson began “horsing around” and rocking Williams’s canoe. Williams started to return to shore. When he looked back, he saw that Johnson’s canoe had flipped over and Johnson was in the water. Williams saw “panic in [Johnson’s] face.”
As Williams tried to help Johnson, Williams fell into the water, which was so cold that he had to swim to shore. Zheng entered the water to look for Johnson, and Harts ran to get help. Darlene Nipper, the chief executive officer of Rockwood Leadership Institute, arrived at the scene and unsuccessfully tried to find Johnson. First responders later found Johnson’s deceased body.
On the day of the incident, the canoes were unsecured; previously, they had been secured with a chain and a lock. The water temperature in Hidden Lake was about 40 degrees, and the air temperature was roughly 38 degrees. Respondents had no policies, procedures, or practices to warn guests about specific safety hazards associated with cold water shock and swimming or canoeing at Hidden Lake.
Analysis: making sense of the law based on these facts.
Under California law, a release is an express assumption of the risk document which negates the defendant’s duty of care.
If the plaintiff signed a release of all liability, the release applies to any ordinary negligence of the defendant, so long as the act of negligence that resulted in the plaintiff’s injury is reasonably related to the purpose for which the release was given. The release must be” ‘” ‘clear, unambiguous, and explicit in expressing the intent of the subscribing parties.
In this case, the appellate court found the release was clear, unambiguous and explicit in expressing the parties (both the defendant and the decedent’s) intent that the decedent assumed the risk of his possible injury.
The release was entitled “Release & Waiver of Liability,” communicating to Johnson that he was releasing claims and waiving liability. It explicitly stated that he would “assume full responsibility for all risks of bodily injury, death or property damage,” and that he would “hold harmless Mayacamas Ranch, its officers, agents, principals and employees and the owners of the real property.” It further stated that Johnson would “waive, release, and discharge any and all claims, rights and/or causes of action which [he] now ha[s] or which may arise out of or in connection with [his] presence at Mayacamas Ranch.” (Italics added.) In short, the release applied to any ordinary negligence liability arising out of Johnson’s stay at the ranch, which would include his use of the canoe on Hidden Lake at the resort.
The court then looked at whether the release identified all the named defendants. The release only identified “Mayacamas Ranch,
its officers, agents, principals and employees and the owners of the real property.” It did not identify by name “Paradise With Purpose, Profit Recovery Center, or Mayacamas Holdings.” The plaintiff argued because those three defendants were named in the release they were not covered by the release.
The appellate court found that all the parties were covered by the release. The parties and the land those parties controlled were all managed by the named defendant and the language identifying other parties was sufficient to cover the non-named parties.
Although the release did not identify the Mayacamas Defendants by name, a reasonable person in Johnson’s position-signing a release and waiver of liability for all claims arising from his presence at Mayacamas Ranch-would necessarily expect the phrase “Mayacamas Ranch, its officers, agents, principals and employees” to include the entity that was operating, and doing business as, “Mayacamas Ranch.”
The plaintiff argued the scope of the release was ambiguous. The release mentioned swimming so the release could only be applied to the swimming pool not canoeing on a lake.
The court did not buy it. “An ambiguity exists only”‘ “when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.” The language of the release covered swimming, it also covered “any and all claims, rights and/or causes of action which I now have or which may arise out of or in connection with my presence at Mayacamas Ranch.” That language alone in the release would cover canoeing in a lake while on the property.
The court summed up the release in this statement.
Here, the purpose of the release was for guests to waive all future claims arising out of their presence at the ranch and their use of its property and facilities, which necessarily included canoeing on Hidden Lake.
The plaintiff then argued the actions of the defendant were grossly negligent.
‘Gross negligence'” is a” ‘” ‘want of even scant care'” ‘” or” ‘” ‘an extreme departure from the ordinary standard of conduct.'” ‘” [“‘ “such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results”‘ “].) By contrast, ordinary negligence is “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” [“‘ “[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,”‘ amounts to ordinary negligence.”].) Thus, while “[e]vidence of conduct that evinces an extreme departure from safety directions or an industry standard could demonstrate gross negligence,” “conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.”
The plaintiff’s argued that
Here, appellants claim that the Mayacamas Defendants were grossly negligent because they did not lock up the canoes, post signs, provide a flotation device and life vests, or warn guests about “cold water shock” and canoeing at the lake, including admonishing them that canoes can capsize and life vests should be worn.
However, the court found these actions were not gross negligence but simply malfeasance, which is covered by ordinary negligence and as such, the release.
Assumption of the risk was also raised as a defense to the claims of the plaintiff. The plaintiff argued that drowning while canoeing was not an inherent risk of canoeing. The court found otherwise.
In addition to contending that the release negated the element of duty under an express assumption of risk theory, the Mayacamas Defendants contended in the trial court that they had no liability based on the primary assumption of risk theory. Under that theory, “operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” Whether a given risk is inherent in the sport is a question of law to be answered by the court.
The court did not go into that issue with any greater detail because its decision on the release meant the issue was resolved without looking at assumption of the risk.
The release, as flawed as it might appear to be, was written broadly enough under California law, to deny the claims of the plaintiff.
So Now What?
Compare this case, and how the release was interpreted to the decision in Schabelski v. Nova Cas. Co. (Wis. App. 2022) discussed in Wisconsin finding more ways to invalidate releases, which makes writing a release difficult. There is no way this release would have survived under Wisconsin law.
This release did not name the defendants properly, did not identify the risks with any specificity yet was written broadly enough to meet the requirements of a release under California law.
In Wisconsin, a release cannot be written broadly and must specifically identify the risks the release is being used to prevent.
That does not mean you can write releases in some states and not care about how they are written. A poorly written release is always the best example to teach or write about because they are always appealed. Good releases never get to court because the plaintiffs cannot find the holes necessary to make a claim.
Get your release written by an attorney, not a sports professor, who knows the law and knows your land, business or activity.
Other California Cases looking at Releases.
Most references in case law to assumption of the risk are to this California decision
What do you think? Leave a comment.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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Estate of Johnson v. Mayacamas Holdings LLC (Cal. App. 2021)
Posted: June 26, 2023 Filed under: California, Paddlesports, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Canoeing, Estate, Express Assumption of the Risk, Gross negligence, Mayacamas Ranch, Release, Survivors, unambiguous, unambiguous language, Waiver of Liability Leave a commentTo Read an Analysis of this decision see
Release signed while checking in at a resort stopped heir’s claims when the decedent drowned while canoeing.
ESTATE OF LAMERLE JOHNSON, SR., et al., Plaintiffs and Appellants,
v.
MAYACAMAS HOLDINGS LLC, Defendants and Respondents.
A161183
California Court of Appeals, First District, Fifth Division
December 21, 2021
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG17853267
NEEDHAM, J.
The Estate of Lamerle Johnson, Sr., Danielle Martin Johnson, LaMerle Johnson, Jr., and Deja Thomas (appellants) sued respondents after Lamerle Johnson, Sr. (Johnson) tragically drowned while canoeing on a lake at respondents’ resort. The trial court entered judgment in respondents’ favor after granting their motion for summary adjudication, based largely on the fact that Johnson had signed a release of liability. Appellants now contend the court erred because (1) respondents were not identified by name as parties to the release and were not third-party beneficiaries; (2) the release could be construed to pertain only to claims arising from swimming at the pool, not canoeing on the lake; (3) there was a material factual dispute as to whether respondents were grossly negligent; and (4) the court erred in sustaining an objection to the declaration of appellants’ expert witness. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A. Mayacamas Ranch
Mayacamas Ranch was a resort in Calistoga. The property included a “Building Parcel,” with guest cottages, a man-made pool, and other structures, and a “Lake Parcel,” with a pond called Hidden Lake. On the shore of Hidden Lake were at least two 12-foot fiberglass canoes. An unmarked white bin, containing life vests, was nearby.
At the time relevant to this case, the Building Parcel of Mayacamas Ranch was owned by respondent Mayacamas Holdings LLC (Mayacamas Holdings), and the Lake Parcel was owned by respondent Profit Recovery Center. Both parcels were operated and managed by respondent Paradise With Purpose, a hospitality management company.[1]
B. Release and Waiver of Liability
In December 2016, Johnson attended a retreat at Mayacamas Ranch hosted by Rockwood Leadership Institute. Upon his arrival, he received a “Release & Waiver of Liability,” which the resort required guests to review and sign before they were assigned rooms and given keys. Johnson signed the release on December 5, 2016.
The release stated: “I am aware that the grounds and facilities of Mayacamas Ranch are rural and rustic. I do not have any medical or physical conditions, which would impair or affect my ability to engage in any activities or which would cause any risk of harm to myself or to the participants or otherwise endanger my health while attending and utilizing Mayacamas Ranch. . . . I am further aware that certain activities available at the Ranch may be dangerous, for example, swimming, consuming alcohol, or hiking the trails. I understand that the Ranch does not provide lifeguards or any other forms of supervision for the use of the facilities nor for monitoring consumption of alcoholic beverages. I understand that the Ranch does not have on staff anyone trained in CPR nor first aid. Pool [c]loses promptly at 10 p.m. to adhere to strict property noise ordinance. . . . I assume full responsibility for all risks of bodily injury, death or property damage and hold harmless Mayacamas Ranch, its officers, agents, principals and employees and the owners of the real property. . . . I waive, release, and discharge any and all claims, rights and/or causes of action which I now have or which may arise out of or in connection with my presence at Mayacamas Ranch. I acknowledge that I have read and agree to all Mayacamas Ranch policies listed in this release & waiver of liability.” (Italics added.)
C. Johnson Drowns While Canoeing
On December 6, 2016, Johnson and another guest, Troy Williams, went hiking and “stumbled upon” Hidden Lake. Johnson took one of the canoes onto the water, apparently without incident.
On December 7, 2016, Johnson, Williams, and two other guests (Heracio Ray Harts and Eddy Zheng) went hiking before the day’s scheduled activities. They arrived at Hidden Lake and took turns taking the two canoes onto the water. They did not locate any life vests; although they found the white bin, they could not open it.
While Johnson and Williams were in their respective canoes on Hidden Lake, Johnson began “horsing around” and rocking Williams’s canoe. Williams started to return to shore. When he looked back, he saw that Johnson’s canoe had flipped over and Johnson was in the water. Williams saw “panic in [Johnson’s] face.”
As Williams tried to help Johnson, Williams fell into the water, which was so cold that he had to swim to shore. Zheng entered the water to look for Johnson, and Harts ran to get help. Darlene Nipper, the chief executive officer of Rockwood Leadership Institute, arrived at the scene and unsuccessfully tried to find Johnson. First responders later found Johnson’s deceased body.
On the day of the incident, the canoes were unsecured; previously, they had been secured with a chain and a lock. The water temperature in Hidden Lake was about 40 degrees, and the air temperature was roughly 38 degrees. Respondents had no policies, procedures, or practices to warn guests about specific safety hazards associated with cold water shock and swimming or canoeing at Hidden Lake.
D. Johnson’s Estate and Survivors Sue
In March 2017, appellants sued Mayacamas Ranch LLC, Rockwood Leadership Institute, and others. They asserted causes of action for general negligence, premises liability, and wrongful death, alleging that Mayacamas Ranch LLC negligently owned, possessed, leased, maintained, operated, designed, inspected, supervised, managed, and controlled the resort premises.
In April 2018, appellants filed an amended complaint in which they acknowledged that Mayacamas Ranch LLC was a dissolved entity that was no longer operating. In its place, appellants named three new defendants- respondents Mayacamas Holdings, Profit Recovery Center, and Paradise With Purpose (Mayacamas Defendants).
E. Mayacamas Defendants’ Summary Judgment Motion
In December 2019, the Mayacamas Defendants moved for summary judgment or, in the alternative, summary adjudication. They argued that the release provided a complete defense to each cause of action, the primary assumption of the risk doctrine also barred liability, and Thomas lacked standing to bring a wrongful death action.
Appellants opposed the motion, arguing inter alia that the release did not identify the Mayacamas Defendants, did not cover canoeing on Hidden Lake, and did not absolve the defendants from liability for gross negligence. They also argued that primary assumption of the risk was inapplicable and that Thomas had standing to file suit.
On the issue of gross negligence, appellants submitted a declaration from Dr. John R. Fletemeyer, a purported expert in “aquatics safety,” who stated that the defendants’ failure to take certain safety precautions-such as failing to provide warnings, limit access to the canoes, or make life vests accessible-fell “far below the generally accepted customs and practices in the aquatic safety industry, such that it rises to a level of gross neglect, recklessness and a deliberate and willful disregard for the safety of the public and their guests, including Mr. Johnson.”
In July 2020, the trial court granted summary adjudication for the Mayacamas Defendants on each cause of action, concluding that the release was “unambiguous as a matter of law.” The court found “no triable issue of material fact as to the existence of gross negligence, which could negate the legal effect of the Release,” observing that Dr. Fletemeyer’s opinion “fail[ed] to establish what the accepted customs and practices in the aquatic safety industry [were], or how they appl[ied] to properties like Mayacamas Ranch.” The court sustained the Mayacamas Defendants’ objection to paragraph 16 of Dr. Fletemeyer’s declaration, which had set forth his opinion on gross negligence, as conclusory and lacking in foundation. The court added that “Mr. Johnson’s assumption of risk in signing the Release functions as a defense to the Plaintiffs’ claims based on negligence.”
Judgment was entered in favor of the Mayacamas Defendants as to all causes of action. This appeal followed.
II. DISCUSSION
In reviewing a grant of summary judgment, we conduct an independent review to determine whether there are triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (o)(1) & (2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact as to that issue. (Code Civ. Proc., § 437c, subd. (p)(2); See Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72.) We construe the moving party’s evidence strictly, and the nonmoving party’s evidence liberally, in determining whether there is a triable issue. (Thomas, at p. 72.)
A. The Release Unambiguously Bars Appellants’ Claims
A written release of future liability reflects an express assumption of the risk by the plaintiff, thereby negating the defendant’s duty of care. (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 (Eriksson).) If the plaintiff signed a release of all liability, the release applies to any ordinary negligence of the defendant, so long as the act of negligence that resulted in the plaintiff’s injury is reasonably related to the purpose for which the release was given. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357-1358.) The release must be” ‘” ‘clear, unambiguous, and explicit in expressing the intent of the subscribing parties.'” ‘” (Eriksson, supra, 233 Cal.App.4th at p. 722, italics omitted.)
Here, the release was clear, unambiguous, and explicit in expressing the parties’ intent that Johnson assume all risks of injury or damage at Mayacamas Ranch and waive and release all claims related to his stay. The release was entitled “Release & Waiver of Liability,” communicating to Johnson that he was releasing claims and waiving liability. It explicitly stated that he would “assume full responsibility for all risks of bodily injury, death or property damage,” and that he would “hold harmless Mayacamas Ranch, its officers, agents, principals and employees and the owners of the real property.” (Italics added.) It further stated that Johnson would “waive, release, and discharge any and all claims, rights and/or causes of action which [he] now ha[s] or which may arise out of or in connection with [his] presence at Mayacamas Ranch.” (Italics added.) In short, the release applied to any ordinary negligence liability arising out of Johnson’s stay at the ranch, which would include his use of the canoe on Hidden Lake at the resort.
B. Appellants’ Arguments
Appellants contend the release was insufficient in three respects: it did not apply to the Mayacamas Defendants; it did not apply to canoeing; and it did not apply to gross negligence. Their contentions lack merit.
1. Application of the Release to the Mayacamas Defendants
The release stated that Johnson would hold harmless “Mayacamas Ranch, its officers, agents, principals and employees and the owners of the real property.” It did not explicitly name Paradise With Purpose, Profit Recovery Center, or Mayacamas Holdings. Therefore, appellants contend, the Mayacamas Defendants “were not parties to the Release” and could not invoke its protections unless they were intended third-party beneficiaries. Appellants further contend there was no evidence that the release was intended to benefit the Mayacamas Defendants and appellants presented evidence to the contrary.
Although the release did not identify the Mayacamas Defendants by name, a reasonable person in Johnson’s position-signing a release and waiver of liability for all claims arising from his presence at Mayacamas Ranch-would necessarily expect the phrase “Mayacamas Ranch, its officers, agents, principals and employees” to include the entity that was operating, and doing business as, “Mayacamas Ranch.” That entity was the defendant, Paradise With Purpose, which-as alleged in the amended complaint- operated and managed both parcels. (At the time the release was signed, the legal entity previously known as “Mayacamas Ranch, LLC” had already been dissolved.) Further, a reasonable person in Johnson’s position would understand that “owners of the real property” meant those who owned the property on which Mayacamas Ranch was located: that is, Mayacamas Holdings, which owned the Building Parcel, and Profit Recovery Center, which owned the Lake Parcel, as alleged in the amended complaint.
The cases on which appellants rely do not suggest otherwise. In Vahle v. Barwick (2001) 93 Cal.App.4th 1323, an attorney had represented clients in a personal injury matter that was resolved by a settlement agreement.
When the clients later sued the attorney for malpractice, the attorney argued that a provision in the settlement agreement, by which the clients had released the opposing party in the personal injury case and “their agents, servants, assigns . . . and all other persons . . .” from all claims related to the personal injury litigation, released the attorney as to the subsequent malpractice claim. (Italics added.) The court rejected the argument, noting that the release was plainly intended only to release the opposing party and those in privity with the opposing party, and not the clients’ own attorney. (Id. at pp. 1326-1333.)
In Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, a passenger in a vehicle involved in an accident sued the driver of the other car. The defendant driver contended the claim was barred by a release the plaintiff had signed with the insurer of the vehicle in which the plaintiff had been riding. That release had exonerated certain individuals “and any other person, firm or corporation charged or chargeable with responsibility or liability.” (Italics added.) The court of appeal concluded there was a triable issue of material fact as to whether the plaintiff had intended to release the driver with the words “any other person.” (Id. at pp. 342-345.) The question, the court explained, is whether “a reasonable person in the releasing party’s shoes would have believed the other party understood the scope of the release.” (Id. at p. 351.)
Here, we do not have a situation where we must divine whether the parties intended the Mayacamas Defendants to fall within a phrase such as “all other persons” or “any other person.” The release expressly identified the ranch, its agents, its officers, its principals, its employees, and the owners of the real property as the ones who would be held harmless. The only reasonable interpretation is that, by this language, the release was intended to protect the entities that were subject to liability as operators of the resort and owners of the real property-the Mayacamas Defendants.
Appellants argue that they submitted evidence showing that the Mayacamas Defendants were not third-party beneficiaries. They cite to a discovery response in which Profit Recovery Center stated it owned the Lake Parcel but did not own or control the Building Parcel (the land where the” ‘resort and retreat center'” was located). Whether Profit Recovery Center owned the Building Parcel is irrelevant, however, because it owned the Lake Parcel and was therefore one of the “owners of the real property” under the release. Similarly, appellants point us to a discovery response in which Mayacamas Holdings stated it owned the Building Parcel and not the Lake Parcel, but that still makes Mayacamas Holdings an “owner[] of the real property” under the release. Appellants also refer to discovery responses indicating that the Mayacamas Defendants had no “relationship” except that they shared a chief executive officer or manager, but they fail to demonstrate why that matters.
Whether the release should be construed such that Mayacamas Holdings, Profit Recovery Center, and Paradise With Purpose were parties to the release, or were intended third-party beneficiaries, they are entitled to the benefits and protections of the release.
2. Application to the Canoe Incident
Appellants next contend the scope of the release was ambiguous and could reasonably be construed to apply only to Johnson’s use of the resort’s swimming pool, and not to canoeing; because of this ambiguity, they argue, there was a material factual dispute that precluded summary judgment.
Appellants’ argument is meritless. An ambiguity exists only”‘ “when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.” ‘” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485 (Cohen).) It is not semantically reasonable to conclude that the release covered only Johnson’s swimming in the pool.
As mentioned, the release was exceedingly broad. It stated that Johnson assumed “full responsibility for all risks of bodily injury, death or property damage” and “waive, release, and discharge any and all claims, rights and/or causes of action which I now have or which may arise out of or in connection with my presence at Mayacamas Ranch.” (Italics added.) Given this language, no reasonable person would think that the release pertained only to swimming in the swimming pool. Appellants point to a sentence in the release that states: “I am further aware that certain activities available at the Ranch may be dangerous, for example, swimming, consuming alcohol, or hiking the trails.” (Italics added.) But in that sentence, “swimming” was just an “example” of dangerous activities, and there was no attempt to provide an exhaustive list of the risks. While the release mentioned the pool’s closing time, that was plainly to solicit adherence to a “noise ordinance” and in no way limited the release’s scope. To the contrary, the first sentence of the release recited Johnson’s awareness that the “grounds and facilities of Mayacamas Ranch are rural and rustic,” suggesting a far broader scope to the release than just the pool. (Italics added.) And finally, the fact that the release did not specifically mention canoeing is immaterial. (See Cohen, supra, 159 Cal.App.4th at p. 1485 [the express terms of the release must apply to the defendant’s negligence, but the release need not mention the defendant’s specific negligent act].) Canoeing would be performed in the canoes provided at Hidden Lake, which was part of the “grounds and facilities of Mayacamas Ranch,” and involved Johnson’s “presence” at the resort.
The cases on which appellants rely are inapposite. In those cases, the harm that caused the plaintiff’s injuries was outside the purpose of the release. (Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1466-1469 [release given in connection with the rental of scuba diving equipment was expressly limited to “boat dives or multiple day rentals” and therefore did not apply where the decedent had not rented the equipment for those purposes]; Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1303-1308 [release signed as a condition of watching an automobile race from the “pit area” did not cover injuries incurred when bleachers in the pit area collapsed, because the purpose was to require attendees to assume the risk of injury as a result of being in close proximity to the race, not defectively constructed or maintained bleachers].) Here, the purpose of the release was for guests to waive all future claims arising out of their presence at the ranch and their use of its property and facilities, which necessarily included canoeing on Hidden Lake.
3. No Triable Issue as to Gross Negligence
A release of liability bars claims for ordinary negligence, but not gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750 (Santa Barbara).) Appellants contend they established triable issues of material fact as to whether the Mayacamas Defendants acted with gross negligence. We disagree.
” ‘Gross negligence'” is a” ‘” ‘want of even scant care'” ‘” or” ‘” ‘an extreme departure from the ordinary standard of conduct.'” ‘” (Santa Barbara, supra, 41 Cal.4th at p. 754; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [“‘ “such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results”‘ “].) By contrast, ordinary negligence is “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (Santa Barbara, supra, 41 Cal.4th at pp. 753-754; Anderson, supra, 4 Cal.App.5th at p. 881 [“‘ “[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,”‘ amounts to ordinary negligence.”].) Thus, while “[e]vidence of conduct that evinces an extreme departure from safety directions or an industry standard could demonstrate gross negligence,” “conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 365 (Willhide-M ichiulis).)
Here, appellants claim that the Mayacamas Defendants were grossly negligent because they did not lock up the canoes, post signs, provide a flotation device and life vests, or warn guests about “cold water shock” and canoeing at the lake, including admonishing them that canoes can capsize and life vests should be worn. This alleged wrongdoing, however, does not constitute gross negligence, but “[m]ere nonfeasance”-the failure to guard against, or warn of, dangerous conditions. (See Willhide-Michiulis, supra, 25 Cal.App.5th at pp. 358-365 [where snowboarder collided with snow grooming equipment, allegations that the equipment was used on an open run without spotters or adequate warning of the danger did not demonstrate gross negligence]; Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 878-883 [customer who slipped and fell in health club’s shower room failed to plead gross negligence by alleging that the shower room floor was routinely covered with oily and soapy residue, because there was no extreme departure from expected conditions or safety standards, and the defendant did not actively increase the risk or conceal it].)
Dr. Fletemeyer’s opinion that the failure to take the stated precautions fell “far below the generally accepted customs and practices in the aquatic safety industry, such that it rises to a level of gross neglect” did not create a triable issue of fact. As discussed post, the trial court did not err in sustaining defendants’ objection to Dr. Fletemeyer’s statement as conclusory and lacking in foundation. (Willhide-Michiulis, supra, 25 Cal.App.5th at pp. 355-356.) In any event, Dr. Fletemeyer’s opinion missed the mark, because he did not explain the customs and practices of aquatic safety in the context of places such as Mayacamas Ranch and Hidden Lake. There was no showing, therefore, of an extreme departure from the ordinary standard of conduct.
Nor did the alleged actions of the Mayacamas Defendants increase the inherent risks of canoeing. A reasonable person in Johnson’s position understands that canoeing on a lake (in 38-degree weather) poses risks such as the canoe capsizing or the canoer otherwise falling into the water and having to swim to safety. Not only is this conclusion readily drawn from general experience, it is confirmed by the deposition testimony of Johnson’s own companions, who knew enough about the dangers of canoeing to inquire of Johnson’s ability to swim and to search for life vests; despite not finding any, they ventured onto the water. (See Anderson v. Fitness Internat., LLC, supra, 4 Cal.App.5th at pp. 878-883 [no gross negligence where the defendant did not actively increase the risk or conceal it]; cf. Eriksson, supra, 191 Cal.App.4th at p. 856-857 [triable issue as to gross negligence where defendant unreasonably increased the inherent risk of injury in horse jumping by allowing the victim to ride an unfit horse and concealing the horse’s unfitness].)
Appellants’ reliance on Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 (Rosencrans) is misplaced. In Rosencrans, a motorcycle rider fell on a motorcross track during a practice run, at a location where he was not visible to other riders; after he stood and picked up his motorcycle, two other motorcyclists struck him. (Id. at p. 1077.) The court determined that, as a matter of law, the operator owed the plaintiff a duty to minimize the risks of motorcross by providing a system, such as a “caution flagger,” to alert riders of a fallen participant. (Id. at pp. 1084-1085.) Based on admissible evidence in the form of an instructional manual, which directed that flaggers should remain at the flag station at all times when competitors are on the course, and a declaration of a motocross safety expert, who averred that the common practice was to always place caution flaggers at their posts and the failure to do so greatly fell below the standard of care in the motocross industry, the court concluded there was a triable issue of fact as to whether the operator’s failure to provide the caution flagger constituted an extreme departure from the ordinary standard of conduct-that is, gross negligence. (Id. at pp. 1086-1087.)
Here, even assuming that the Mayacamas Defendants’ alleged wrongdoing constituted a breach of their duty of care, there is no evidence comparable to that in Rosencrans suggesting the conduct was so extreme as to constitute gross negligence. There was no evidence, for example, of an applicable instructional manual. Nor was there admissible testimony from an expert that such conduct would greatly fall below the standard of care applicable specifically to operators of resorts akin to Mayacamas Ranch.
Appellants fail to establish that the court erred in granting summary adjudication and entering judgment based on the release.
C.
Primary Assumption of the Risk
In addition to contending that the release negated the element of duty under an express assumption of risk theory, the Mayacamas Defendants contended in the trial court that they had no liability based on the primary assumption of risk theory. Under that theory, “operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.) Whether a given risk is inherent in the sport is a question of law to be answered by the court. (Id. at pp. 1158-1159.) Respondents argue that falling out of a canoe and drowning is an inherent risk of canoeing, and there was no evidence that the Mayacamas Defendants increased that risk.
It is unclear whether the trial court addressed the primary assumption of risk argument. The court stated in its order that “Mr. Johnson’s assumption of risk in signing the Release function[ed] as a defense to the Plaintiffs’ claims based on negligence.” (Italics added.) Because the court discussed assumption of the risk “in signing the Release” and referred to the Eriksson case, the Mayacamas Defendants contend the court was referring to express assumption of the risk and never ruled on the primary assumption of the risk theory. On the other hand, the court made its statement under the heading of “Issue 4,” which pertained to assumption of the risk (based in part on the language of the release), separate from “Issues 1[-]3,” which pertained to the theory of waiver based on the release. Appellants argue that the court did invoke the “primary assumption of the risk” doctrine as an alternative basis for its ruling, and erred in doing so.
Even if the trial court relied on the primary assumption of the risk doctrine, we need not and do not address this alternative ground for the court’s decision, because we affirm the ruling based on the express assumption of the risk doctrine as discussed ante.
D. Exclusion of Evidence
In concluding there were no triable issues of material fact as to gross negligence, the trial court sustained respondents’ objection to paragraph 16 of Dr. Fletemeyer’s declaration. Paragraph 16 read as follows: “Based on my background, education, training, experience, skill, and specialized knowledge in aquatics safety, there are many reasonable, inexpensive, simple, and effective safety precautions, outlined above and referenced below, that the Property-Defendants should have taken under the circumstances. Their failures, whether taken individually or in any combination, more likely than not caused or contributed to the Drowning and death of Mr. Johnson. These failures fall far below the generally accepted customs and practices in the aquatic safety industry, such that it rises to a level of gross neglect, recklessness, and a deliberate and willful disregard for the safety of the public and their guests, including Mr. Johnson.” Subparagraphs set forth the safety precautions that, according to Dr. Fletemeyer, should have been taken and would have saved Johnson’s life.
The court sustained the objection to paragraph 16 on the ground it was conclusory and lacking in foundation, because Dr. Fletemeyer failed to establish industry standard or custom, particularly as it applied to Mayacamas Ranch. Appellants contend this was error. The traditional rule is that evidentiary rulings in summary judgment proceedings are reviewed for an abuse of discretion. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852.) It is now an open question whether that remains the standard or whether the standard is de novo. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.) Under either standard, we would uphold the trial court’s ruling.”
Dr. Fletemeyer professed to be an expert in “aquatics safety” and opined about customs and practices in the “aquatic safety industry,” but nothing in his declaration defined the standard and custom specifically for a resort like Mayacamas Ranch or the body of water known as Hidden Lake. Although appellants insist that Dr. Fletemeyer identified the reasonable industry practices relating to safety precautions in paragraph 16(a) and preceding paragraphs, those passages amount to a legal conclusion that certain things the Mayacamas Defendants did not do constituted reasonable industry standard practices, without particularizing the “industry” to which he referred, identifying the “industry standard,” or explaining how it applies to resorts like the ranch. (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 344, 366 [trial court did not abuse its discretion by excluding expert declarations that “did nothing more than to provide conclusions that the [defendants]conduct violated industry standards and constituted gross negligence”].) Appellants fail to establish error.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J. BURNS, J.
20
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Notes:
[1] In October 2017, Mayacamas Ranch was destroyed by fire. Paradise With Purpose is purportedly suspended by the California Secretary of State and barred from defending against appellants’ lawsuit. (See Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.) Philadelphia Indemnity Insurance Company filed a motion to intervene in this appeal to protect its interests as the insurer of Paradise With Purpose and the interests of its insured. We granted the motion, and Philadelphia Indemnity Insurance Company filed its joinder to respondents’ brief.
G-YQ06K3L262
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Wisconsin finding more ways to invalidate releases, which makes writing a release difficult.
Posted: June 19, 2023 Filed under: Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Wisconsin | Tags: Bargain, Chair Lift, Chair Lift Rescue, Exclupatory Release, exculpatory, Exculpatory Agreement, Public Policy, Reckless, recklessness, Release Leave a commentThe release was found not to cover falling from a check lift because it did not speak to the issue of chair lift rescues.
Schabelski v. Nova Cas. Co. (Wis. App. 2022)
State: Wisconsin; Court of Appeals of Wisconsin, District II
Plaintiff: Kathleen A. Schabelski and Jay P. Schabelski, Plaintiffs-Appellants, Blue Cross Blue Shield of Illinois, a foreign corp. and Golden Rule Insurance Company, a foreign corp
Defendant: Nova Casualty Company, a foreign corp., Friedl Ski Ventures, LLC, a WI LLC and Alex James Fuhrman
Plaintiff Claims: (1) the alleged failure to have proper rescue equipment on hand; (2) allegedly inadequate training of resort employees to respond to a rider hanging from a lift chair; and (3) the purported lack of adequate written plans or procedures for responding to evacuating riders.
Defendant Defenses: Release
Holding: Split decision, voided the release for the main claims but upheld the defendant’s position on several minor issues.
Year: 2022
Summary
Wisconsin is limiting the scope of releases and requiring them to be specifically written to cover the specific risks of an activity. If that risk is not set forth in the release, the release will not provide a defense to that type of claim.
Wisconsin also requires the ability to bargain over a release. Either the opportunity to not sign a release or to negotiate parts of the release.
Facts
Jay has a bachelor’s degree in civil engineering and a master’s degree and runs a business that designs and manufactures soil testing equipment. Kathleen holds a bachelor’s degree in broadcast communications and a master’s degree in business administration and does accounting and human resources work for the business. Kathleen has had cerebral palsy since birth but received training from the Southeastern Wisconsin Adaptive Ski Program and became an experienced snowboarder. Before the accident, Kathleen had successfully boarded chair lifts “hundreds of times.”
The Schabelskis and their son arrived at Sunburst in the morning on February 28, 2016. They purchased lift tickets from an attendant in the gift shop because the ticket window was closed. The attendant presented them with a release and briefly showed them a second form that gave them the option to purchase health insurance for an additional fee, which they declined.
Immediately below these paragraphs are lines for up to six ticket holders to print and sign their names. The circuit court described the size of most of the printed text in the release as “small; like this — 8 point or smaller.” We are unable to determine the exact size of the text, but it appears smaller than the text in this opinion, which is printed in 13-point font.
Kathleen did not ask the attendant any questions about the release. The attendant did not discuss the “nature of [the] bullet points” in the release with the Schabelskis. Kathleen did not recall seeing or discussing the language in the release allowing customers to purchase a lift ticket without signing a release for an extra ten dollars.
Kathleen did not read the release “word for word” because it contained, in her words, “very fine print,” and she had never seen anyone do so before purchasing a ticket. But she believed she understood what the release meant based on her “prior knowledge of what a liability waiver typically contains”-namely, that such waivers “protect[] the ski hill if I am injured due to my own mistake.” Kathleen could have read the release “word for word” had she chosen to do so. Instead, she and Jay signed the release after a brief exchange with the attendant, who seemed to Kathleen to be more focused on their potential purchase of health insurance.
With lift tickets in hand, the Schabelskis hit the slopes. Kathleen used Chairlift No. 3 once without incident and then returned to that lift with Jay for another trip up the hill. Riders board the two-person chairs on the lift from the right side of the lift looking uphill.
That morning, Sunburst employee Alex Fuhrman was attending the lift. After Kathleen’s first run, which she described as “a little bit shaky,” Fuhrman asked her if it was her first time snowboarding, to which she responded by “point[ing] to the multiple tags that I had on my jacket and said ‘No, I’ve done this before.'” She also explained to him that she had a disability. According to Fuhrman, Kathleen was “a little bit shaky” each time she boarded, “but she always settled in before she started taking off upwards.”
Jay recalled that loud music was playing in the loading area that morning. Fuhrman did not specifically remember playing music that morning but did recall bringing a speaker to his work area at times. Sunburst did not prohibit employees from playing music in their work areas.
After their son boarded a chair, the Schabelskis moved into the loading position and waited for a chair to arrive behind them. Kathleen always rode chair lifts with another person, but did not usually require physical assistance once she was seated in the chair. She described the speed at which the lift was moving that morning as “on the slower side.”
Kathleen, Jay, and Fuhrman gave deposition testimony about what happened next. Their accounts differ in two principal respects. The first is whether Fuhrman “bumped” the lift chair just before the Schabelskis boarded. A lift attendant “bumps” a chair by stalling it as it reaches a rider, which briefly slows the chair to prevent it from hitting the backs of the rider’s legs. Bumping also tilts the chair slightly, allowing the rider to sit down in the chair as it arrives at the rider’s position. When the attendant releases the chair, it swings forward slightly and plants the rider in the seat. Fuhrman received training on how to bump chairs at Sunburst.
According to Kathleen, Jay boarded the lift chair safely when it reached them but she was only able to get herself partially on the chair and was left “dangling” as it continued to move forward. Kathleen did not know why she was unable to seat herself fully on the chair and did not recall whether Fuhrman bumped the chair before it reached them.
According to Jay, Fuhrman did not bump the chair as the Schabelskis attempted to board. Jay testified that Fuhrman was shoveling snow onto the path between the waiting area and the loading area as he and Kathleen attempted to board, but later acknowledged that he “d[id]n’t really know where the lift attendant was” when they boarded.
Fuhrman denied shoveling snow when the Schabelskis were boarding, though he did acknowledge shoveling between passenger boardings. Fuhrman testified that “whenever [Kathleen] boarded I was paying complete attention, because I was a little nervous about the way she boarded.” Fuhrman also testified that he bumped the chair for her on the run on which she fell and was “fairly certain” that he “bumped the chair every time for her, because it made me nervous the way she boarded the chair. It took extra long for her to get settled.”
The second area of dispute between Fuhrman and the Schabelskis concerns what happened after the lift chair left the loading area and began moving up the hill. As the chair moved forward with Kathleen only partially on board, she “was very surprised, because typical procedure is the lift is stopped immediately.” She and Jay yelled, “Stop” as he held onto her. Then, according to Kathleen, instead of stopping the lift immediately when he recognized that there was a problem, [Fuhrman] ran out and asked, “Do you want me to stop the lift” as I’m dangling from it, getting higher and higher off the ground. And of course we immediately say “Yes.” But by the time he runs back and stops the lift I’m between 15 and 20 feet off the ground. Kathleen estimated that Fuhrman ran ten to fifteen feet to ask her if she wanted him to stop the lift, at which point she was “[p]artially seated, hanging on desperately.”
Fuhrman disputed the Schabelskis’ claim that they began yelling for the lift to be stopped almost immediately after they boarded, though he did acknowledge “a small possibility” that he did not hear them because of the music playing in the loading area. Fuhrman testified that he watched the Schabelskis depart the loading area “to see if she would get settled in.” As Kathleen started “to gain some air and did not settle in at the usual comfortable time that I watched her settle in,” Fuhrman asked if she was all right and if she wanted him to stop the lift. According to Fuhrman, Jay responded, “No, we’ll be all right.” Fuhrman continued to watch the Schabelskis and eventually tried to “push up on her snowboard to give that upward pressure to sink her up and back into the chair.” When that proved unsuccessful, Fuhrman asked again if Kathleen needed the lift stopped and Jay said, “Yeah, stop the lift.” Fuhrman testified that he “immediately ran right back to the station and hit the button” and the lift slowed to a stop.
Fuhrman and Kathleen estimated that she hung on to the chair for around ten minutes before she fell to the ground. In that time, two other employees came over to where Kathleen was located. According to Kathleen, the first employee walked over “very slowly,” looked up at her and said “I need to get a ladder,” and walked back. A second employee then came over with, in Kathleen’s words, “something that clearly was not going to be tall enough to do the job.”[3] According to Kathleen, the second employee said “Oh, that’s not going to work,” and left. She did not see Fuhrman after the lift came to a stop.
Sunburst did not have a “protocol” for situations like the one in which Kathleen found herself. Chairlift evacuations are overseen by Sunburst management and are performed by management, ski patrol, other employees and, if necessary, the Kewaskum Fire Department. Sunburst did not have “catch nets” on its premises because its owner deemed them dangerous to use. Sunburst did not attempt to use ropes and a seat to lower Kathleen off the lift because it would only use that method if the chairlift was not operational and could not be restored to operation using a secondary emergency motor. According to an expert witness for the Schabelskis, it is “standard custom and practice” for mountain resorts in North America to provide evacuation training and equipment to lift attendants and to have “rescue devices immediately available at the loading area” to evacuate misloaded passengers.
Analysis: making sense of the law based on these facts.
This is an interesting and to some extent scary case. When a decision says the state strictly construes releases, it means the state reviews them because they are written by one party and usually not a negotiated contract. Generally, it means nothing legally. In this case, Wisconsin has gotten serious in its review and releases and whether or not a release will be upheld.
Wisconsin law does not favor exculpatory releases because “they tend to allow conduct below the acceptable standard of care applicable to the activity.” Wisconsin courts construe such releases strictly against those who seek to rely on them.
Wisconsin also has a very unique two-step procedure for determining the validity of a release.
First, we must “examin[e] the facts and circumstances of the agreement to determine if it covers the activity at issue.” If the activity is not covered by the release, then the release “should be determined to be unenforceable in regard to such activity If the release does cover the activity in question, then we proceed to the second step of determining whether the release is enforceable under public policy.
The first step is not to determine the validity of the release but to determine if the release covers the injury or claim the plaintiff is complaining about. Meaning, the release must specifically identify that injury as covered by the release. Then the release is reviewed to determine if it violates public policy under Wisconsin law.
Public Policy is defined in reference to releases as:
Public policy refers to the “principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.” In undertaking the public policy analysis, we attempt to balance the tension between contract law, which seeks to protect the ability to “manage [one’s] own affairs without government interference,” and tort law, which seeks to deter conduct below the standard of care and compensate persons injured by the unreasonable conduct of others.
First when examining the release to determine if it covers the claimed injury the language used to describe the test appears to be the same as any other court.
In determining whether a specific activity is covered by an exculpatory release, we focus on whether the risk of that act was within the parties’ contemplation when the release was signed.
In most states, the above statement does the release inform the person signing it that they are giving up their right to recover for injuries they may receive. In Wisconsin, this test is: did the release identify the injuries in the release.
The release at issue in this case is more specific than that in Arnold insofar as it contains nine bulleted statements that describe categories of conduct to which it applies. However, rescuing or providing aid to imperiled lift riders is not specifically mentioned in any of the categories. Friedl argues that the specific injury-causing act need not be specified in the release and maintains that the phrase “unloading operations” is broad enough to cover the efforts to rescue Kathleen.
Only the nine items listed in the bullet points would be covered in the release at question. Here the court then interpreted the nine bullet points to determine that falling off a chair lift was not covered under the release. The bullet points only identified loading and unloading.
The release does not define “unloading,” but as relevant here, its ordinary meaning is “to take off” or “to take the cargo from.” Unload, Webster’s Third New International Dictionary (unabr. 1993); (“dictionary definitions are dispositive of the ordinary meanings ascribed to contract terms”). In the context of riding a chair lift, “unloading” can reasonably be understood to refer to the process by which a rider gets off the lift at a designated point along the lift’s path, just as “loading” can reasonably be understood to refer to the process of getting on the lift at a designated point along the path. Both processes connote a degree of intention and orderliness. Riders intend to board and exit a lift at points along the lift path designed for those activities. Lift attendants provide assistance as needed to enable riders to accomplish both tasks safely and in an orderly fashion.
Then the court reviewed all aspects of riding a chairlift, loading, and unloading to determine that loading and unloading a chairlift do not include rescuing someone from a chairlift.
Since the plaintiff’s injuries came from failure to rescue? the release did not cover her claims.
One would not necessarily think of efforts to rescue a rider in danger of falling off a halted chair lift as “unloading” that rider. Such efforts lack the regularity and orderliness of normal “loading” and “unloading operations.” Instead, they are dictated by the circumstances giving rise to the need for rescue. In addition, as the Schabelskis point out, Sunburst appears to treat unloading and rescue operations as distinct activities. Whereas lift attendants like Fuhrman provide assistance with loading and unloading, Sunburst’s management oversees “chairlift evacuation,” which is performed “by management, ski patrol, all employees, and also the Kewaskum Fire Department” when necessary.
Because the release did not contemplate chairlift rescues then the injuries the plaintiffs received were not covered by the release.
To summarize, our task is to determine whether the parties contemplated release of the activity at issue, which we do by strictly construing the release’s terms to determine whether they “clearly, unambiguously, and unmistakably inform the signer” that liability for the activity at issue is being waived. (citing “the well established principle that exculpatory contracts are construed strictly against the party seeking to rely on them”). Here, the Schabelskis have set forth facts on summary judgment to support their assertion that Friedl failed to have proper training, a proper plan and proper equipment to evacuate or rescue skiers who are hanging from a lift. This failure is alleged to be a cause of Kathleen’s injuries separate and distinct from any negligence in Friedl’s operation of the chairlift.
This analysis was then reinforced by quotes from Wisconsin Supreme Court decisions on the specificity of what a release must cover.
Our supreme court has repeatedly made clear that the terms of the release must be specific in describing the risks for which the signer is releasing liability. We conclude that the release did not “clearly, unambiguously, and unmistakably” inform the Schabelskis that they were releasing Friedl from liability for a negligent rescue attempt in the event they found themselves in danger of falling from a lift chair.
What other issues could you experience once you load the lift and leave the loading area, other than falling out of the lift or not being properly recued from the lift. Since the release must be construed narrowly and did not cover rescue from a chairlift, the plaintiff’s claims were not barred by the release.
The next claim was the actions leading up to falling out of the chairlift were claimed to be negligent also. Those actions were covered by the release because they fell within the definition of chair lift loading.
We agree that the Schabelskis’ negligence claim is within the scope of the release to the extent it is predicated on Fuhrman’s actions before the chairlift stopped. Even if a jury were to find that Fuhrman was playing loud music, did not bump the Schabelskis’ chair, shoveled snow while they boarded, and delayed in stopping the lift, those acts are covered by the release because they are part of “the operation of chairlifts” and “chairlift loading.”
The court then looked at the recklessness claim. Wisconsin law does not allow, like some states, a release to stop a claim based on recklessness.
“It is well-settled that an exculpatory clause … cannot, under any circumstances … preclude claims based on reckless or intentional conduct.”
The Court then defined recklessness under Wisconsin law.
Recklessness “contemplates a conscious disregard of an unreasonable and substantial risk of serious bodily harm to another.” “Conduct which creates a high risk of physical harm to another is substantially greater than negligent conduct. Mere inadvertence or lack of skill is not reckless conduct.”. Whether Fuhrman’s conduct meets the standard for recklessness is a question of law.
The court then examined skiing and the plaintiff’s conduct and experience skiing. Examining those facts, the court found the actions of the employees of the defendant were not reckless.
Before the ride on which Kathleen fell, she told Fuhrman that she had a disability and he had observed her being “a little bit shaky” when boarding the chair lift. However, Kathleen also informed Fuhrman that she had boarded a lift before, and he had seen that she was able to “settle in” to the lift chair on at least one prior trip. Kathleen also described the speed at which the lift was moving that morning as “on the slower side.” Given these facts, boarding the lift chair did not present “an unreasonable and substantial risk of serious bodily harm” to Kathleen.
Court went on find that there was absolutely no showing recklessness by the employee working at the lift.
Assuming that Fuhrman was playing music in the loading area, did not bump the slow-moving lift chair before the Schabelskis boarded, and did not initially hear them yell for the lift to be stopped, the Schabelskis acknowledge that Fuhrman did ask if they wanted the lift stopped and that he stopped the lift when they said, “Yes.” When alerted that Kathleen may not have loaded properly, Fuhrman took action to confirm if she needed assistance and stopped the lift when asked to do so. That he may not have bumped the lift chair or stopped the lift as quickly as he could have shows, at most, “inadvertence, or simple negligence” rather than a conscious disregard for Kathleen’s safety.
The next discussion concerned Wisconsin’s definition of public policy, the second step to determine the validity of the release. Since failed the first test, it did not need to review whether or not the release met the second test.
Attempting to cover more than ordinary negligence under Wisconsin law will void a release. This is called overbreadth; the document attempts to reach too far to accomplish its goal and is overly broad and thus void. So, any release that attempts to use a release to protect against reckless behavior by the defendant is void.
An exculpatory release violates public policy when its terms purport to shield a defendant from liability for any reason. [O]ur supreme court refused to enforce a one-paragraph release that insulated a fitness center from liability without regard to “fault” because that term was “broad enough to cover a reckless or an intentional act.”
The Supreme Court of Wisconsin held that the language in a release used for hot air ballooning was void because it went too far.
…language in a release requiring persons wishing to ride in a hot air balloon to “assume full responsibility for all risks of any and every kind involved with or arising from … participation in hot air balloon activities” and to hold certain parties harmless “for[] all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning activities” was overbroad because it would protect the released parties from liability “for any activity for any reason, known or unknown.”
The court then went through the release sentence by sentence and determined that the release did not reach past the specific nine points set forth in the release.
That is to say, the Schabelskis (1) agree to release the “SUNBURST RELEASEES” from liability for certain, specified negligent conduct; (2) agree to comply with the release by holding the “SUNBURST RELEASEES” harmless from such negligence liability; and (3) agree not to sue the “SUNBURST RELEASEES” for the negligent conduct that has been released.
That being said, the review generated this statement by the court.
Even if the inclusion of the word “any” in the paragraph following the bulleted statements might make the scope of the release uncertain, we would be obliged to construe the release strictly against Friedl and limit it to the specific activities listed in the bulleted statements.
The simple addition of the word “any” in defining the risks outlined in the release would have voided the release for being overly broad.
The final argument of the plaintiff was misrepresentation. As set forth above, under Wisconsin law the plaintiff has the right to pay more to not sign a release or to negotiate the terms of the release. In this case, for $10.00 more the plaintiffs could have not signed a release.
The attendant at the gift shop where the transaction occurred told the plaintiff that the extra $10.00 was for purchasing additional health insurance. The plaintiff argued this was intentional misrepresentation.
The Schabelskis suggest that the gift shop attendant mistakenly described the second form she showed to them as one relating to the purchase of additional health insurance, when in fact the second form gave them the opportunity to pay an extra $10.00 fee and not sign a release of liability. Thus, the Schabelskis argue they may have been misled into believing that their chance to bargain was about purchasing insurance, rather than signing or not signing the release.
However, this argument did not fly because the release the plaintiff signed mentioned this fact, that for an additional $10.00 the plaintiff did not have to sign a release. Since they signed the release, they read the release under Wisconsin law and therefore the document informed the plaintiff of the actual facts.
The Schabelskis would have known about the availability of a “no release” lift ticket by reading the release before they signed it. As it stands, having signed the release, they are presumed to have read it and understood its contents. (“those who sign written instruments are presumed to know their contents and their legal effect” (citation omitted)).
The opportunity to bargain was also raised as a way to void the release by the Plaintiffs. Even though there was no opportunity to bargain, the opportunity to pay more money and not sign the release is equal to that opportunity and distinguishes that claim.
The release is expressly limited to negligence and specifically disclaims application to reckless or intentional conduct. Moreover, the Sunburst release was not presented to customers on a take-it-or-leave-it basis: persons wishing to ski or snowboard at Sunburst could sign the release or pay an extra $10.00 for a non-release lift ticket. The release afforded customers an opportunity to bargain because it allowed them to select one of two sets of terms: (1) the base ticket price in exchange for the release or (2) a higher ticket price with no release. Because the form itself alerted customers to the availability of release and no-release options, it afforded the Schabelskis an opportunity to bargain.[
The court did raise several points in its analysis that did not rise to the level of a legal argument but obviously were important enough to be added to the discussion.
First was the issue that the release allowed up to six people to sign the release.
Immediately below these paragraphs are lines for up to six ticket holders to print and sign their names.
Second was the issue of the size of the print. Three times the court pointed out that the print size was extremely small.
The circuit court described the size of most of the printed text in the release as “small; like this — 8 point or smaller.” We are unable to determine the exact size of the text, but it appears smaller than the text in this opinion, which is printed in 13-point font.
Kathleen did not read the release “word for word” because it contained, in her words, “very fine print,” and she had never seen anyone do so before purchasing a ticket.
Although the font was small, Kathleen testified that she could have read the release “word for word.”
There was a dissent in this decision which would have upheld the release for all claims of the plaintiff.
So Now What?
Writing a release to satisfy Wisconsin law has always been difficult, not it appears to have become almost impossible.
- The release must be specific in what it covers It must cover specific issues that are clearly identified in the document.
- The release cannot be overly broad. It cannot reach too far in its attempt to cover issues beyond ordinary negligence.
- The plaintiff has the right to negotiate the release or to bargain or pay more money to not sign a release
- The release will not be interpreted to cover any other claims other than those specifically and narrowly defined in the release.
- Perhaps the type and font of the release cannot be too small.
What is so confusing is Wisconsin allows a parent to sign way a minor’s right to see. Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1
On another point, $10.oo is not enough to avoid signing a release!
For other decisions interpreting Wisconsin law on releases see:
Wisconsin decision has left the status of release law in Wisconsin in jeopardy
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2023 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
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New Hampshire: Search and Rescue Response Expenses; Recovery
Posted: June 6, 2023 Filed under: Uncategorized Leave a commentNew Hampshire Statutes
Title 18. FISH AND GAME
Chapter 206. FISH AND GAME COMMISSION
Conservation Officers, Superintendents of Hatcheries, and Other Employees
Current through Chapter 91 of the 2021 Legislative Session
§ 206:26-bb. Search and Rescue Response Expenses; Recovery
I. Any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response, unless the person shows proof of possessing a current version of any of the following:
(a) A hunting or fishing license issued by this state under title XVIII.
(b) An OHRV registration under RSA 215-A, a snowmobile registration under RSA 215-C, or a vessel registration under RSA 270-E.
(c) A voluntary hike safe card. The executive director shall adopt rules under RSA 541-A for the issuance to purchasers on the department’s Internet site, and subsequent annual renewals, of a hike safe card prior to a person’s need for a search and rescue response. The annual fee for a hike safe card shall be $25 for an individual or $35 for a family. A “family” shall consist of the purchaser, the purchaser’s spouse, and the purchaser’s minor children or stepchildren. In addition, if the purchaser or the purchaser’s spouse has been appointed as a family guardian for an individual under RSA 464-A, that individual shall be considered part of the purchaser’s family. A transaction fee determined by the department shall be for the Internet license agent as provided in RSA 214-A:2. The executive director shall forward to the state treasurer the sum collected from each individual hike safe card purchased and each family hike safe card purchased, less the amount of such transaction fee, for deposit in the fish and game search and rescue fund under RSA 206:42.
I-a. The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs by the required date, the department may pursue payment by legal action, or by settlement or compromise, and the responsible person shall be liable for interest from the date that the bill is due and for legal fees and costs incurred by the department in obtaining and enforcing judgment under this paragraph. All amounts recovered, less the costs of collection and any percentage due pursuant to RSA 7:15-a, IV(b), shall be paid into the fish and game search and rescue fund established in RSA 206:42.
II. If any person fails to make payment under paragraph I, the executive director of the fish and game department may:
(a) Order any license, permit, or tag issued by the fish and game department to be suspended or revoked, after due hearing.
(b) Notify the commissioner of the department of health and human services of such nonpayment. The nonpayment shall constitute cause for revocation of any license or certification issued by the commissioner pursuant to RSA 126-A:20 and RSA 151:7.
(c) Notify the director of motor vehicles of such nonpayment and request suspension of the person’s driver’s license pursuant to RSA 263:56.
III. Regardless of a person’s possession of a document satisfying subparagraph I(a), (b), or (c), a person shall be liable to the department for search and rescue response expenses if the person is judged to have done any of the actions listed in RSA 153-A:24, I.
Cite as (Casemaker) RSA 206:26-bb
History. Amended by 2016, 166: 2, eff. 6/3/2016.
Amended by 2016, 166: 1, eff. 6/3/2016.
Amended by 2016, 165: 1, eff. 6/3/2016.
Amended by 2014, 230: 1, eff. 1/1/2015.
Note:
2008, 167:2, eff. June 6, 2008.
Title 12. PUBLIC SAFETY AND WELFARE Chapter 153-A. EMERGENCY MEDICAL AND TRAUMA SERVICES
Reimbursement for Public Agency Response Services Current through Chapter 91 of the 2021 Legislative Session
§ 153-A:24. Responsibility for Public Agency Response Services
I. A person shall be liable for response expenses if, in the judgment of the court, such person:
(a) Negligently operates a motor vehicle, boat, off highway recreational vehicle, or aircraft while under the influence of an alcoholic beverage or controlled drug and thereby proximately causes any incident resulting in a public agency response;
(b) Takes another person or persons hostage or threatens to harm himself or another person, thereby proximately causing any incident resulting in an appropriate public agency response; or
(c) Recklessly or intentionally creates a situation requiring an emergency response.
II. A person’s liability under this subdivision for response expenses shall not exceed $10,000 for any single public agency response incident.
Cite as (Casemaker) RSA 153-A:24 Note: 1999, 345:6, eff. July 1, 1999.
@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com
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City of Philadelphia liable to a bike ride in a charity event who was injured due to a large pothole.
Posted: June 6, 2023 Filed under: Cycling, Pennsylvania, Release (pre-injury contract not to sue) | Tags: Bicycle Ride, City of Philadelphia, Cycling, Governmental Immunity, Philadelphia Phillies, Pothole, Quadriplegia, Release, Sinkhole, Waiver Leave a commentNeither governmental immunity nor a release could stop the lawsuit.
Degliomini v. ESM Prods., Inc. (Pa. 2021)
State: Pennsylvania, Supreme Court of Pennsylvania Eastern District
Plaintiff: Anthony Degliomini and Karen Degliomini
Defendant: Esm Productions, Inc. and City of Philadelphia
Plaintiff Claims: negligence, tort claims act
Defendant Defenses: Governmental Immunity and Release
Holding: For the Plaintiff
Year: 2021
Summary
Plaintiff hit a pothole on a charity ride that rendered him a quadriplegic. He sued the event promoter and the City of Philadelphia for his injuries. Because his injuries occurred on a city street, the release was void under Pennsylvania law because it violated public policy.
The case proceeded to a jury trial, and the plaintiff recovered $3,086,833.19. The Appellate court dismissed the plaintiffs’ claims based on the release. The case was then appealed to the Supreme Court of Pennsylvania.
Prior to trial, the plaintiff settled with Esm Productions and dismissed all other defendants except the city.
Facts
Appellant Anthony Degliomini participated in the May 2015 Philadelphia Phillies Charity Bike Ride (Bike Ride), a twenty-mile ride along a designated route through the streets of South and Center City Philadelphia. During the Bike Ride, Degliomini crashed when he rode into an unmarked and un-barricaded sinkhole on Pattison Avenue in South Philadelphia, which measured sixteen square feet in area and six inches deep. As a result of the crash, Degliomini suffered severe and extensive injuries, including spinal cord injuries leading to incomplete quadriplegia, and multiple bone fractures which required surgical procedures and extensive and ongoing medical treatment. Degliomini and his wife, Karen Degliomini (appellants), filed a negligence action against the City of Philadelphia (the City), event planner ESM Productions, and several other defendants.
The parties litigated pre-trial motions seeking, inter alia, to dismiss appellants’ claims against the City due to governmental immunity pursuant to the Political Subdivision Tort Claims Act, and to bar appellants’ claims of negligence on the basis of the 2015 Phillies Charities Bike Ride Release (the Release), an exculpatory contract prepared by ESM Productions and signed by Mr. Degliomini.
Analysis: making sense of the law based on these facts.
Whenever you sue a government entity, city, county, state or the Federal Government, the government entity has the defense of governmental immunity. The Federal Government has one act, and each state has enacted government immunity, and a subsequent tort claims act for each state. The state governmental immunity and tort claims acts usually apply to any political subdivision in that state such as a city or county. Unless the lawsuit fits into one of the exceptions in the state tort claims act, you cannot sue a government entity.
In this case, the plaintiff had to prove the Pennsylvania tort claims act allowed the plaintiff to sue the city and that the release was not valid.
The court started by examining releases under Pennsylvania law.
A valid exculpatory contract fully immunizes a person or entity from any consequences of its negligence. Disfavored under Pennsylvania law, exculpatory contracts are subject to close scrutiny, strictly construed against the party seeking their protection, and enforced only provided certain criteria are met. Our courts have recognized that “lying behind these contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability[.]”
The courts analysis ended up much like other states, as long as the release did not violate public policy the release would probably be valid.
Thus, our longstanding precedent explains that an exculpatory provision is enforceable, but only if it “does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.”
A release does not violate public policy in Pennsylvania if:
Generally speaking, an exculpatory clause withstands a challenge based on public policy if “‘it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State.’
An exculpatory contract contravenes public policy when it violates an obvious, “overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards.
Pennsylvania does not allow a release to protect against reckless or gross negligence.
…However, we have also held that pre-injury exculpatory releases immunizing parties from liability for their reckless or grossly negligent conduct firmly violate public policy — and are therefore not enforceable — because “such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.”
Releases are also void if the acts were negligent per se.
An exculpatory clause is similarly void as against public policy where it immunizes a party from the consequences of violating a statute or regulation intended to preserve health or safety.
Public policy in Pennsylvania has been defined as:
…i]n the employer-employee relationship[;]” “in situations where one party is charged with a duty of public service,” e.g., public utilities, common carriers, hospitals, airports; in “agreements which attempt to exculpate one from liability for the violation of a statute or regulation designed to protect human life”; and in contracts involving “the limitation of consequential damages for injury to the person in the case of consumer goods[.]”
Releases cannot protect a public policy was supported because:
The view that parties charged with a duty of public service cannot contractually exculpate themselves from liability for negligent conduct is consistent with both our precedent generally upholding releases of liability for the ordinary negligence of private parties, and the law across other jurisdictions recognizing a clear public policy violation where the party seeking exculpation is engaged in performing a service of significant importance or practical necessity to members of the public.
The issue then turned on whether the city of Philadelphia had a duty to repair the streets.
The parties agree the City has a duty, derived from common law, to repair and maintain its streets for their ordinary and necessary use by the public, and the City concedes it may be held liable for injuries caused by its negligent failure to do so. The common law cause of action for negligent beach of a municipality’s non-delegable duty to repair dangerous street conditions is perhaps older than most of Philadelphia’s streets themselves; recognized and enforced for over a century, the duty withstood the evolution of governmental immunity in Pennsylvania throughout the late-nineteenth and twentieth centuries, which otherwise shielded municipalities and their employees from tort liability in most circumstances as a rule with few exceptions.
The parties agreed the city did have a duty to repair the streets and maintain them for the safety of the citizens of Pennsylvania.
The analysis then proceeded to look at the defenses to the claims. First would be whether or not governmental immunity precluded the claim, unless there was an exception in the Tort Claims Act.
The court then looked at the Pennsylvania governmental immunity statute and the Tort Claims Act and found the city could be liable for failing to repair the street.
While the clearly established policy of the Tort Claims Act is to provide an absolute rule of governmental immunity from negligence subject to its few, explicit exceptions without creating new causes of action, it is likewise the clear policy of the Act to codify and define the parameters of those excepted, permissible causes of action. Relevant here, the Tort Claims Act provides “[a] local agency shall be liable for damages on account of an injury to a person” where “damages would be recoverable under common law or a statute” if caused by a non-government entity, for “negligent acts of the local agency” consisting of “[a] dangerous condition of streets owned by the local agency” when the condition created a “reasonably foreseeable risk” of the kind of injury suffered, and when “the local agency had actual notice or could reasonably be charged with notice under the circumstances.”
Since the city had a duty to repair the street, the next defense was the release. Because the city had a duty to repair the street and the street was for the public good, the release was void for violating public policy.
Accordingly, we hold it is contrary to public policy to enforce an exculpatory contract immunizing the City from its essential duty of public service, which exists notwithstanding the context of a recreational event. Any other application of the Release would elevate the City’s private exculpatory contract over the public duties assigned to it and the authority afforded to it by the General Assembly. Under these discrete circumstances, enforcement of the Release would jeopardize the health, safety and welfare of the public at large, and the Release is thus rendered invalid as it violates public policy principles. We therefore reverse the decision of the Commonwealth Court.
So Now What?
Releases are an intricate and complicated law on their own. Throw in the issues of dealing with a political sub-division and protections afforded by government immunity and the loss of protection specifically numerated in a Tort Claims Act, and the case is complicated.
There the release attempted to protect the parties from a duty the City of Philadelphia could not abrogate or avoid. The duty was also based on public transportation, a city street. As such the release was void because it violated public policy, and the suit continued because there was an exception to government immunity afforded by the tort claims act.
Probably there are not going to be any charities using city streets for a while in Philadelphia.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Degliomini v. ESM Prods., Inc. (Pa. 2021)
Posted: June 6, 2023 Filed under: Cycling, Pennsylvania, Release (pre-injury contract not to sue) | Tags: Bike Ride, Charity Bike Ride, Cycling, Philadelphia, Pothole, Release, Sinkhole, Waiver Philadelphia Phillies Leave a commentTo Read an Analysis of this decision see
City of Philadelphia liable to a bike ride in a charity event who was injured due to a large pothole.
ANTHONY DEGLIOMINI AND KAREN DEGLIOMINI, Appellants
v.
ESM PRODUCTIONS, INC. AND CITY OF PHILADELPHIA, Appellees
J-69-2020
No. 5 EAP 2020
SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
ARGUED: September 15, 2020
June 22, 2021
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Appeal from the Order of Commonwealth Court dated 06/25/2019 at No. 1573 CD 2018, reversing the 10/24/2018 Order of the Court of Common Pleas, Philadelphia County, Civil Division at No. 01601 April Term, 2016.
OPINION
JUSTICE DOUGHERTY
We granted discretionary review to consider the validity of an exculpatory release signed by a participant in a charity bike ride that purports to immunize the City of Philadelphia from liability for breaching its duty to repair and maintain public streets. We hold such a release is unenforceable because it violates public policy, and we therefore reverse.
I. Factual and Procedural Background
Appellant Anthony Degliomini participated in the May 2015 Philadelphia Phillies Charity Bike Ride (Bike Ride), a twenty-mile ride along a designated route through the streets of South and Center City Philadelphia. During the Bike Ride, Degliomini crashed when he rode into an unmarked and un-barricaded sinkhole on Pattison Avenue in South Philadelphia, which measured sixteen square feet in area and six inches deep. As a result of the crash, Degliomini suffered severe and extensive injuries, including spinal cord injuries leading to incomplete quadriplegia,1 and multiple bone fractures which required surgical procedures and extensive and ongoing medical treatment. Complaint at ¶¶3-4. Degliomini and his wife, Karen Degliomini (appellants), filed a negligence action against the City of Philadelphia (the City), event planner ESM Productions, and several other defendants.2
The parties litigated pre-trial motions seeking, inter alia, to dismiss appellants’ claims against the City due to governmental immunity pursuant to the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§8541-8564 (Tort Claims Act), and to bar appellants’ claims of negligence on the basis of the 2015 Phillies Charities Bike Ride Release (the Release), an exculpatory contract prepared by ESM Productions and signed by Mr. Degliomini. The Release states, in relevant part:
I know that participating in an organized bike ride such as the 2015 Phillies Charities Bike Ride is a potentially hazardous activity. I should not enter and bike unless I am medically able and properly trained. I understand that bicycle helmets must be worn at all times while participating in the event and I agree to comply with this rule. I further understand and agree that consumption of alcoholic beverages while operating a bicycle is a violation of the law and strictly prohibited. I know that there will be traffic on the course route and I assume the risk of biking in traffic. I also assume any and all other risks associated with participating in the event, including but not limited to falls; contact with other participants; the effects of the weather; the condition of the roads; and unsafe actions by other riders, drivers, or non-participants. I consent to emergency medical care and transportation in the event of injury, as medical professionals deem appropriate.
All such risks being known and appreciated by me, and in consideration of the acceptance of my entry fee, I hereby, for myself, my heirs, executors, administrators and anyone else who might claim on my behalf, promise not to sue and I release and discharge The Phillies, Phillies Charities, Inc., any and all sponsors of the event, the City of Philadelphia, Philadelphia Authority for Industrial Development, Philadelphia Industrial Development Corporation, ESM Productions, and each of their respective affiliates, owners, partners, successors and assigns and each of their respective officers, employees, agents, and anyone acting for or on their behalf, and all volunteers (collectively, the “Releasees”), from any and all claims of liability for death, personal injury, other adverse health consequence, theft or loss of property or property damage of any kind or nature whatsoever arising out of, or in the course of, my participation in the event even if caused by the negligence of any of the Releases. This Release extends to all claims of every kind or nature whatsoever.
* * *
I, intending to be legally bound, represent that I am at least eighteen years old; either I am registering to enter this event for myself or as a parent or guardian of a minor who is at least thirteen years old; I have carefully read and voluntarily agree to this Release on behalf of myself and, if applicable, the minor who is being registered to participate, and I understand its full legal effect.
Trial Court Exhibit D-4. Appellants responded the City was not entitled to statutory immunity because an exception for dangerous conditions on City-owned streets applied;3
the City breached its duty to maintain and repair City streets as provided in Philadelphia’s Home Rule Charter;4 the Release should not apply to bar their claims because the sinkhole existed well before the Bike Ride and therefore the City’s negligence occurred before the Release was ever signed; and the Release was unenforceable because it violates public policy by improperly immunizing the City from any consequence of breaching its duty of public safety imposed by the Home Rule Charter.
The trial court rejected the City’s argument that the negligence action was barred by the Release, and the matter proceeded to a jury trial. Appellants presented civil engineering and roadway management expert testimony from Richard Balgowan, a forensic engineer and certified public works manager, who stated the sinkhole existed in October 2014, approximately eight months prior to the Bike Ride. See N.T. 2/27/2018 at 26, 45-47. Appellants’ evidence further demonstrated the City had knowledge of the sinkhole as it had previously applied patching material to fill it months prior to the Bike Ride, but did not block the area or complete the repair to the subterranean void causing the pavement to sink. See id. at 30-35 (expert testimony discussing different texture and color of material in sinkhole indicated someone from streets department attempted to temporarily fill the sinkhole but did not complete a standard repair). The jury concluded the City was negligent and awarded $3,086,833.19 in damages to Mr. Degliomini and $100,000 to Mrs. Degliomini for her loss of consortium.5
The parties filed post-trial motions. Appellants sought and were awarded delay damages; the City moved for judgment notwithstanding the verdict (JNOV) based on the Release, which was denied. The trial court explained the Tort Claims Act specifically imposes an exception to immunity when the City has actual or constructive notice of a dangerous condition of the streets, and, under the Home Rule Charter, the City has a mandatory duty to maintain and repair City streets, which was breached and caused damages to appellants. Degliomini v. Philadelphia Phillies, 2018 WL 11243021 at *2-4. Specifically, relying on appellants’ unrebutted expert evidence that the City placed patch material in an attempt to fill the sinkhole without repairing the underground void that created the sinkhole, the trial court determined the City’s actions in negligently undertaking to repair the sinkhole resulted in a non-waivable “catalyst for liability” which existed months prior to preparations for the Bike Ride. Id. at *3 (internal quotations and citation omitted). The court thereby concluded the Release was not valid as it violated public policy by exculpating the City from liability for conduct that breaches its exclusive duty to the public set forth in the Home Rule Charter. See id. at *6-8, quoting Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010) (“It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy.”). The trial court entered judgment on the verdict which was molded to include delay damages, and a reduction to reflect the statutory cap.6 The City filed an appeal.
A three-judge panel of the Commonwealth Court reversed. Degliomini v. ESM Prods., Inc., No. 1573 C.D. 2018, 2019 WL 2587696 (Pa. Cmwlth., June 25, 2019) (unpublished memorandum). Though the panel agreed the dispositive issue regarding the validity of the Release was whether it contravenes public policy, it also observed Pennsylvania courts have consistently upheld exculpatory releases pertaining to recreational activities as non-violative of public policy, and therefore valid and enforceable. See id. at *3 (collecting cases). Rather than considering Section 5-500 of the Philadelphia Home Rule Charter as establishing a mandatory duty, the panel regarded it instead as an “organizational section” mandating the creation of the Department of Streets to perform certain functions, but providing no standard of care or guidelines for how the Department must accomplish its road repair duties; thus, the panel reasoned the City’s street maintenance obligation under the Charter was no different than any common law duty of reasonable care, which can be waived via a valid release. Id. at *4. The panel relied on its decisions in Vinikoor v. Pedal Pa., Inc., 974 A.2d 1233, 1240 (Pa. Cmwlth. 2009) (release precluded recovery against self-inflicted injuries caused by known risks on road during bike race and did not violate public policy), and Scott v. Altoona Bicycle Club, No. 1426 C.D. 2009, 2010 WL 9512709 at *4-5 (Pa. Cmwlth., July 16, 2010) (unpublished memorandum) (exculpatory agreement between bike race participant and municipality was a private agreement and did not violate public policy), to conclude: the Release was a private agreement between appellant Degliomini and various entities including the City; appellant was under no obligation to sign the Release or participate in the Bike Ride; and the Bike Ride was a private event on public roads and the City’s involvement was akin to that of a private property owner. Id. The Commonwealth Court therefore held, because the Release did not violate public policy, it was valid and enforceable to bar appellants’ claims against the City, and the trial court erroneously denied the City’s request for JNOV. Id.
Upon appellants’ petition, we granted review of the following questions:
1. Can the City of Philadelphia contractually immunize itself from tort liability for breaching a mandatory public safety duty which has existed for decades under common law, and which is now codified and/or imposed under Pennsylvania’s Tort Claims Act and Philadelphia’s Home Rule Charter?
2. Does the Phillies’ exculpatory Release immunize the City from liability for negligently repairing its road hazard before the parties drafted or entered the Release, and long before the event covered by the Release?
Degliomini v. ESM Prods., Inc., 223 A.3d 670 (Pa. 2020) (per curiam). These are pure questions of law over which our standard of review is de novo and our scope of review is plenary. See Reott v. Asia Trend, Inc., 55 A.3d 1088, 1093 (Pa. 2012). For the most part, the parties treat the two issues as intertwined, and we proceed to consider their arguments mindful of the applicable standard.
II. Arguments
In support of the trial court’s determination the Release is unenforceable as against public policy, appellants argue that only the legislature has the authority to confer immunity upon political subdivisions and, by enacting the Tort Claims Act, the legislature expressly determined cities “shall be liable for damages” resulting from known dangerous street conditions; therefore, according to appellants, the City cannot immunize itself by contract for conduct where the legislature has expressly waived its immunity. Appellants’ Brief at 12-17, quoting 42 Pa.C.S. §8542(a). See id., citing, inter alia, Carroll v. York Cty., 437 A.2d 394, 396 (Pa. 1981) (extent of a municipality’s powers is determined by the legislature); Dorsey v. Redman, 96 A.3d 332, 340 (Pa. 2014) (legislature is the exclusive body with authority to confer immunity upon political subdivisions); City of Philadelphia v. Gray, 633 A.2d 1090, 1093-94 (Pa. 1993) (city ordinance cannot waive immunity conferred by Tort Claims Act). Recognizing the purpose of the Tort Claims Act’s immunity provision is to protect against public fiscal risks, appellants observe the Judicial Code explicitly provides both a statutory limitation on damages against a local agency, and the authority for local agencies to purchase liability insurance and enter joint insurance contracts in order to mitigate risk exposure. Appellants further note, however, the Code does not mention exculpatory contracts. Id. at 16-17 n.5. See 42 Pa.C.S. §§8553, 8564. Appellants contend there is an important distinction between permissible indemnity contracts wherein another party agrees to bear cost of damages if the government is held liable, and exculpatory contracts wherein the government would be immunized from being held liable at all, which is not permissible under these circumstances because the legislature foreclosed the defense of tort immunity via the Act’s exception for known dangerous street conditions. Id. at 17.
In addition, appellants indicate exculpatory clauses have been found to violate public policy when, inter alia, they release a party charged with a duty of public service, release a party for violating a statute or regulation designed to protect human life, or “‘would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.'” Id. at 19-22, quoting Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1203 (Pa. 2012). See id., citing, inter alia,; Boyd v. Smith, 94 A.2d 44, 45-46 (Pa. 1953) (lease contract exculpating landlord from liability “caused by any fire” violated public policy where landlord did not comply with fire safety legislation “intended for the protection of human life”); Leidy v. Deseret Enters., Inc., 381 A.2d 164, 167-68 (Pa. Super. 1977) (“courts have found contracts against liability contrary to public policy . . . in situations where one party is charged with a duty of public service”) (additional citations omitted). They assert the City has a mandatory, non-delegable “public safety” duty to repair street hazards upon actual or constructive notice of them, and this duty has existed at common law for decades. See id. at 18, citing, inter alia, Drew v. Laber, 383 A.2d 941, 943 (Pa. 1978) (“Under Pennsylvania law a municipality is required to construct and maintain its highways in such a manner as to protect travelers from dangers which, by the exercise of normal foresight, careful construction and reasonable inspection, can be anticipated and avoided.”) (internal quotation omitted). They further assert this duty was later preserved and codified in the Philadelphia Home Rule Charter — which has the force of statute and expressly states the City’s Department of Streets has the duty to repair and maintain city streets — and the Tort Claims Act — which contains the exception to governmental immunity for dangerous street conditions. See id. at 27-29, citing Harrington v. Carroll, 239 A.2d 437, 438 (Pa. 1968) (“That the [Philadelphia Home Rule] Charter constitute[s] legislation no less than does a statute of the legislature to like end is too plain for even cavil.”); Philadelphia Home Rule Charter §5-500(a)(1); 42 Pa.C.S. §8542(b)(6)(i). Appellants indicate this duty is not a sweeping source of liability for all dangerous street conditions, but, per the statutes, is instead a bare minimum duty of care that attaches to liability only when the City “‘had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.'” Id. at 21-22, quoting 42 Pa.C.S. §8542(b)(6)(i). They argue that allowing ad hoc contract exceptions to the legislative waiver of immunity would disincentivize the City from discharging its bare minimum duty of care at the precise time when the City’s known or reasonably knowable street hazards pose the most danger — i.e., during events, when streets are congested with onlookers and event participants — and would thereby “jeopardize the health, safety, and welfare of the people[.]” Id. at 22, quoting Tayar, 47 A.3d at 1203.
Appellants further emphasize the City’s duty to maintain public streets is distinct from the duty of owners of private property such as a race track or ski resort hosting a non-essential sporting event, contending the legislature stripped the City of tort immunity for breaching this specific duty under the Tort Claims Act streets exception. And, in contrast to other cases where exculpatory contracts conditioning recreational use of private property upon the execution of a release did not violate public policy, the City’s duty to maintain and repair the street does not arise from use of the property conditioned upon execution of the Release, but exists independently from the Release and the Bike Ride event to ensure public safety. As a result, argue appellants, the duty cannot be waived by contract. See id. at 23-25, comparing Boyd, 94 A.2d at 45-46 (liability for breaching public safety duty to provide fire escape could not be waived by contract between a landlord and tenant) with, e.g., Chepkevich, 2 A.3d 1174 (alleged duty arose from plaintiff’s use of defendant’s ski facility which was conditioned upon her first signing an exculpatory release); Appellants’ Reply Brief at 10.
Lastly, appellants argue that exculpatory releases are strictly construed against the party seeking immunity, and the text of this Release is not sufficiently clear to immunize the City for negligence that occurred before the Bike Ride and before the parties entered the Release. See id. at 29-30, citing, inter alia, Emp’rs Liability Assur. Corp. v. Greenville Bus. Men’s Assoc., 224 A.2d 620, 623-24 (Pa. 1966) (exculpatory clauses construed against party seeking immunity; “If a party seeking immunity from liability for negligent conduct intends exculpation for past as well as future negligent conduct it is his obligation to express in the agreement such intent in an unequivocal manner; absent a clear expression of intent, the clause of exculpation will not be so construed.”). Appellants focus on language in the second paragraph, which releases the City of liability from “claims of liability for . . . personal injury . . . arising out of, or in the course of, . . . participation in the event even if caused by the negligence of any of the Releasees.” Id. at 30, quoting the Release (emphasis added by appellants). Appellants view the City’s negligence as occurring long before the Bike Ride, when the City patched but failed to complete repair of the sinkhole. Though recognizing the Release contains language that participants assume risks associated with “the condition of roads,” appellants contend the phrase cannot reasonably be construed to cover hazardous road conditions for which the City was on notice and which were caused by the City’s prior negligent repair of a known dangerous condition that, at a minimum, should have been marked with paint or barriers along the route, consistent with Mr. Degliomini’s experience in similar charity bike ride events. See id. at 31-32.
In response, the City concedes it has a longstanding duty to maintain its streets for ordinary and essential use, such as everyday walking, bicycling, or driving, but emphasizes the duty was created by common law, not the Tort Claims Act or Home Rule Charter, and — just as any private landowner would be able to do — the City can release itself from liability for breach of that duty by an exculpatory contract involving non-essential, recreational use of the streets. See City’s Brief at 18-19, 24-25. In support of this position, the City raises two key elements to its argument. First, it argues not enforcing such a release would be contrary to the overriding purpose of the Tort Claims Act, which is to limit municipal liability and preserve the public fisc by providing absolute immunity for acts of negligence subject to a few, narrowly-construed exceptions. Id. at 19, 21 (emphasis provided by the City); see id. at 22-23, citing Dorsey, 96 A.3d at 341 (“exceptions to the absolute rule of immunity expressed in the statute must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability”) (internal citations and quotations omitted). Second, by the express terms of the Act, the General Assembly deliberately placed municipalities on equal footing with private defendants, allowing for liability only if “[t]he damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under [governmental or official immunity].” See id. at 24, quoting 42 Pa.C.S. §8542(a)(1). The City contends these public policy principles are evident from the explicit text of the Act as well as its legislative history. It was enacted to codify the principle of governmental immunity shortly after this Court abrogated its common law predecessor.7 The enactment was based upon recommendations of the Joint State Government Commission tasked with the study of sovereign immunity laws, which described, inter alia, the rejection of a general waiver of immunity in favor of the enumeration of limited specific waivers, the difficulty municipalities face in obtaining insurance against risks, the intention to retain immunity as the rule while specific waivers would be the exception, and the intention that these waivers “‘merely [ ] remove the bar from suit where the cause of action already exists in the enumerated areas,'” to allow existing causes of action to play out before the courts just as they would against a private defendant. Id. at 22-24, 26 quoting “Sovereign Immunity,” Pennsylvania General Assembly, Joint State Government Commission at 11 (May 1978). As there is no explicit statutory text prohibiting municipalities from limiting their liability through exculpatory contracts, the City contends the Release is consistent with the Tort Claims Act’s central goal of limiting liability, and not antagonistic to public policy. See id. at 20-21, 25-26.
The City further argues Pennsylvania courts express “great reluctance” to disrupt parties’ freedom of contract on public policy grounds, having consistently upheld waivers of liability for ordinary negligence in connection with recreational events like the Bike Ride, and invalidating private contractual agreements only when a “‘dominant public policy'” found in “‘long governmental practice or statutory enactments, or [ ] obvious ethical or moral standards,'” id. at 12-14, quoting Williams v. GEICO Gov’t Emps. Ins. Co., 32 A.3d 1195, 1200 (Pa. 2011), sufficiently justifies invalidating the contract, and this is not the case when a policy is merely consistent with one of several competing goals of a statute, but rather demands “‘a public policy overriding every other consideration in contract construction.'” Id. at 26, quoting Heller v. Pa. League of Cities & Muns., 32 A.3d 1213, 1221 (Pa. 2011) (internal quotation omitted). See id. at 13-14, citing, inter alia, Tayar, 47 A.3d at 1200 (“exculpatory clauses that release a party from negligence generally are not against public policy”). The City emphasizes that liability waivers for recreational activities do not concern public policy because such activities are voluntary and the signer is under no obligation to participate in the activity. Id. at 14-15, citing, inter alia, Chepkevich, 2 A.3d at 1191 (“signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity. . . . The signer is a free agent who can simply walk away without signing the release and participating in the activity”) (citations omitted).8 In the City’s view, Mr. Degliomini had complete freedom to reject the Release, and the City was not performing an essential service by hosting the Bike Ride, which did not involve the public’s ordinary, essential use of the streets such as an everyday bicycle commute — instead, the Bike Ride was a time-limited event involving hundreds of cyclists moving steadily in a pack without having to stop for traffic lights or stop signs, making it more difficult to see and avoid road hazards. Id. at 15-16. The City submits its role in the Bike Ride was identical to that of a host of a private recreational, non-essential event. See id. at 16.
The City further asserts there is no broad public policy exception against contracts affecting public safety or reducing incentives to act with due care, and such an exception would cause nearly all exculpatory clauses to violate public policy. Instead, according to the City, non-waivable essential duties or entities “charged with a duty of public service” includes employer-employee relationships and the essential, ordinary use of public utilities, common carriers, and hospitals, but not recreational use of grounds for events such as charity bike rides. See id. at 15, citing RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY §2 cmt. e (2000); id. at 16-18 & 17 n. 4, citing Toro, 150 A.3d at 973; RESTATEMENT (SECOND) OF CONTRACTS §195 cmt. a (1981). Additionally, the City suggests non-waivable violations of health and safety statutes apply only to regulations setting specific standards of care such that violation of the statute would constitute negligence per se. See id. at 17 n.5, citing, inter alia, Boyd, 94 A.2d at 46; Warren City Lines, Inc. v. United Ref. Co., 287 A.2d 149 (Pa. Super. 1971) (violation of Fire Marshal’s regulation was negligence per se and could not be waived by contract’s exculpatory clause). The City argues enforcing the Release does not implicate any of these public safety concerns; further, cases that have held exculpatory agreements were invalid as violative of public policy for “jeopardiz[ing] the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct” — Tayar, supra, and Feleccia v. Lackawanna Coll., 215 A.3d 3, 20 (Pa. 2019) — involved claims of recklessness or gross negligence rather than ordinary negligence which is at issue here, and the City’s incentive to repair its roads remains intact because an individual can still sue for a sinkhole-related injury arising from ordinary use of the street outside the parameters of the Release. See City’s Brief at 18.
Regarding appellants’ reliance on the Home Rule Charter, the City argues the Charter is merely organizational and provides the City with the role of repairing roads, but does not create any duty to users of the roads or streets. See id. at 27. Because the Home Rule Charter is silent with respect to the question of tort liability and contractual waivers of liability, the City argues the Release does not conflict with any express or implicit policy set forth in the Home Rule Charter. Rather, the City suggests the Release is enforceable because it is an exculpatory contract associated with a voluntary recreational activity.
Finally, the City argues the language of the Release is unambiguous and plainly applies to any personal injury that occurred during the Bike Ride due to a “condition of the roads.” Id. at 28. Disclaiming appellants’ reliance on Employers Liability, the City distinguishes its central holding — i.e., a residential lease’s language was not sufficiently clear to waive liability for a hidden defect that existed prior to the contract — as limited to the context of leases, in which parties are contemplating a status which will be created in the future after the lessee receives a property free of defects; in contrast, the City argues no reasonable cyclist would expect to receive a public road in perfect condition. See id. at 29-30, citing Employers Liability, 224 A.2d at 622-24. Moreover, the City indicates the Release does contain specific language that participants waived “‘any and all claims of liability . . . even if caused by the negligence of any of the Releasees'” and that participants assumed all risks relating to the “‘condition of the roads,'” including all road defects. Id. At 31-32, quoting the Release. The City asserts it is unreasonable to interpret “condition of the roads” to pertain only to potholes that formed after the Release was signed. Id. at 32.9
III. Legal Background
We now turn to our analysis of the issues presented within the context of the applicable legal principles. Importantly, the City does not contest it has a duty derived from common law to maintain its streets for ordinary use by the public; therefore the primary operative question is whether the City may contractually immunize itself against consequences of breaching that duty when the use of the street is a non-essential, voluntary, recreational function. And, because our answer to this question is dispositive, we need not reach the second issue on appeal, regarding the sufficiency of the Release’s language to immunize the City from liability for negligence that pre-existed execution of the Release.
A valid exculpatory contract fully immunizes a person or entity from any consequences of its negligence. See 57A Am. Jur. 2d Negligence §47; Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 202 (3d Cir. 1995), citing, e.g., Topp Copy Prods., Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993). Disfavored under Pennsylvania law, exculpatory contracts are subject to close scrutiny, strictly construed against the party seeking their protection, and enforced only provided certain criteria are met. See Employers Liability, 224 A.2d at 623 (“[C]ontracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law . . . such contracts must be construed with every intendment against the party who seeks the immunity from liability[.]”) (internal quotations and citations omitted); Tayar, 47 A.3d at 1199, 1200 & n.8 (exculpatory clauses “enforceable provided certain criteria are met”), citing, inter alia, Topp Copy, 626 A.2d at 99; Feleccia, 215 A.3d at 16. Our courts have recognized that “lying behind these contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability[.]” Phillips Home Furnishings, Inc. v. Cont’l Bank., 331 A.2d 840, 843 (Pa. Super. 1974), rev’d on other grounds, 354 A.2d 542 (Pa. 1976); see also, e.g., Soxman v. Goodge, 539 A.2d 826, 828 (Pa. Super. 1988) (contracts providing “carte blanche” exculpation from liability are disfavored as contrary to public policy and must be strictly construed). Thus, our longstanding precedent explains that an exculpatory provision is enforceable, but only if it “does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.” Chepkevich, 2 A.3d at 1177, citing Topp Copy, 626 A.2d at 99; see also Feleccia, 215 A.3d at 19; Tayar, 47 A.3d at 1199.
Generally speaking, an exculpatory clause withstands a challenge based on public policy if “‘it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State.'” Employers Liability, 224 A.2d at 622-23, quoting Dilks v. Flohr Chevrolet, Inc., 192 A.2d 682, 687 (Pa. 1963); see also RESTATEMENT (SECOND) OF TORTS §496B (1965) (“A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.”). An exculpatory contract contravenes public policy when it violates an obvious, “overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards.” Tayar, 47 A.3d at 1199, citing Williams, 32 A.3d at 1200. An otherwise valid contract will not be voided in favor of a vague public policy goal; rather, this Court requires that to support such a heavy-handed result, the alleged public policy must be:
ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. . . . [T]here must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action.
Williams, 32 A.3d at 1200 (citation omitted).
This Court has observed that pre-injury exculpatory clauses releasing a party from ordinary negligence generally are not against public policy, see Tayar, 47 A.3d at 1199-1200, citing, e.g., Chepkevich; however, we have also held that pre-injury exculpatory releases immunizing parties from liability for their reckless or grossly negligent conduct firmly violate public policy — and are therefore not enforceable — because “such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.” Id. at 1203 (relating to reckless conduct); Feleccia, 215 A.3d at 20 (relating to gross negligence).
An exculpatory clause is similarly void as against public policy where it immunizes a party from the consequences of violating a statute or regulation intended to preserve health or safety. In Boyd, we determined the General Assembly’s enactment of a statute requiring tenements to be equipped with fire escapes avoided an exculpatory provision in a residential lease that purported to relieve the landlord, who did not supply a fire escape, of liability for negligence when the building’s residents were severely burned in a fire. Boyd, 94 A.2d 44. The Court stated,
in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him. . . . “Statutes grounded on public policy are those which forbid acts having a tendency to be injurious to the public good. . . . Where public policy requires the observance of a statute, it cannot be waived by an individual or denied effect by courts, since the integrity of the rule expressed by the Legislature is necessary for the common welfare.” . . . “Where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.”
Id. at 46, quoting, respectively, In re McCurdy’s Estate, 154 A. 707, 709 (Pa. 1931) and Bell v. McAnulty, 37 A.2d 543, 544 (Pa. 1944); see also Warren City Lines, Inc. v. United Refining Co., 287 A.2d 149, 151-52 (Pa. Super. 1971) (negligent violation of a regulation intended for the protection of the public renders an exculpatory clause invalid against public policy; contract could not, as a matter of law, relieve oil and gas company of liability for alleged negligent equipment maintenance performed in violation of State Fire Marshal’s safety regulations).
In Leidy, the Superior Court, incorporating a survey of jurisdictions, further identified several categories of exculpatory contracts where releases of liability for negligent conduct violate public policy, including: “[i]n the employer-employee relationship[;]” “in situations where one party is charged with a duty of public service,” e.g., public utilities, common carriers, hospitals, airports; in “agreements which attempt to exculpate one from liability for the violation of a statute or regulation designed to protect human life”; and in contracts involving “the limitation of consequential damages for injury to the person in the case of consumer goods[.]” Leidy, 381 A.2d at 167-68 (internal quotations and citations omitted); see also Hinkal v. Pardoe, 133 A.3d 738, 747-49 (Pa. Super. 2016) (Lazarus, J., dissenting) (emphasizing duty of public service, expressing the view that a gym membership contract involving personal training services implicated public health and safety concerns such that exculpatory release violated public policy); State Farm Fire & Cas. Co. v. PECO, 54 A.3d 921, 931-35 (Pa. Super. 2012) (Wecht, J., concurring and dissenting) (viewing public utility tariff’s limitation of liability as an exculpatory clause that was void as against public policy where utility was “charged with a duty of public service”).
The view that parties charged with a duty of public service cannot contractually exculpate themselves from liability for negligent conduct is consistent with both our precedent generally upholding releases of liability for the ordinary negligence of private parties, and the law across other jurisdictions recognizing a clear public policy violation where the party seeking exculpation is engaged in performing a service of significant importance or practical necessity to members of the public. See RESTATEMENT (SECOND) OF TORTS §496B cmt. g (“Where the defendant is a common carrier, an innkeeper, a public warehouseman, a public utility, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect. Having undertaken the duty to the public, which includes the obligation of reasonable care, such defendants are not free to rid themselves of their public obligation by contract, or by any other agreement.”); 17A C.J.S. Contracts §73 (1963) (“The rule invalidating contracts exempting from liability for negligence is frequently limited to the principle that parties cannot stipulate for protection against liability for negligence in the performance of a legal duty or a duty of public service, where a public interest is involved or a public duty owed, or, when the duty owed is a private one, where public interest requires the performance thereof.”); 57A Am. Jur. 2d Negligence §56 (“No person can, by agreement, exempt himself or herself from liability for negligence in the performance of a duty imposed upon him or her by law, especially a duty imposed upon him or her for the benefit of the public.”); 8 Williston on Contracts §19:31 (4th ed.) (“Generally, whenever there is a relationship involving a necessary public service, an agreement exempting the provider from its duties in that role is invalid.”).
The parties agree the City has a duty, derived from common law, to repair and maintain its streets for their ordinary and necessary use by the public, and the City concedes it may be held liable for injuries caused by its negligent failure to do so. See City’s Brief at 18. The common law cause of action for negligent beach of a municipality’s non-delegable duty to repair dangerous street conditions is perhaps older than most of Philadelphia’s streets themselves; recognized and enforced for over a century, the duty withstood the evolution of governmental immunity in Pennsylvania throughout the late-nineteenth and twentieth centuries, which otherwise shielded municipalities and their employees from tort liability in most circumstances as a rule with few exceptions. See, e.g., Drew v. Laber, 383 A.2d 941, 943 (Pa. 1978) (“Under Pennsylvania law a municipality is required to construct and maintain its highways in such a manner as to protect travelers from dangers which, by the exercise of normal foresight, careful construction and reasonable inspection, can be anticipated and avoided.”) (internal quotation omitted); Good v. Philadelphia, 6 A.2d 101, 102 (Pa. 1939) (“[T]he liability of a municipality for injuries suffered as a result of defects in the highway arises only when it has notice, actual or constructive, of the existence of a dangerous condition.”); Lawrence v. City of Scranton, 130 A. 428, 430 (Pa. 1925) (“The primary duty of keeping its streets in travelable condition is on the city. When public safety is concerned, this duty cannot be delegated to others.”) (internal quotation and citation omitted); Harvey v. City of Chester, 61 A. 118, 118 (Pa. 1905) (“The primary duty of keeping its streets in travelable condition is on the city, and, while it may turn over their control to an independent contractor for specified purposes and limited time, it cannot by contract relieve itself indefinitely from its duty in that regard.”); see also Ayala v. Philadelphia Bd. of Pub. Educ., 305 A.2d 877, 879-81 (Pa. 1973) (describing evolution of common law governmental immunity doctrine).
In 1973, this Court categorically abolished the common law defense of governmental immunity to tort liability in Ayala, 305 A.2d at 878, and similarly abrogated the companion doctrine of sovereign immunity regarding claims against Commonwealth entities in Mayle v. Pa. Dep’t of Highways, 388 A.2d 709, 720 (Pa. 1978). But, in response, the General Assembly enacted the Tort Claims Act, 42 Pa.C.S. §§8541-8564, and the Sovereign Immunity Act, 42 Pa.C.S. §§8521-8528, reinstating the general rule of governmental and sovereign immunity from tort liability with the force of legislation, and enumerating a limited number of exceptions where the protection was waived, including such an exception for certain known or reasonably knowable dangerous conditions of the streets. In its current form, the Tort Claims Act provides, in its first section, “Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. §8541. The Act’s second section, titled “Exceptions to governmental immunity,” provides for nine enumerated exceptions to immunity, stating, in relevant part:
(a) Liability imposed.–A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
(b) Acts which may impose liability.–The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
* * *
(6) Streets.–
(i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
Id. §8542. Where an exception to governmental immunity applies, the Act additionally provides a limitation on damages, see id. §8553(b) (damages “shall not exceed $500,000 in the aggregate”), and permission and parameters for the purchase and use of liability insurance policies by municipalities and their employees, see id. §8564. We have interpreted the Tort Claims Act’s immunity provision broadly as an “absolute” and “not waivable” shield to liability, which in turn necessitates the narrow construction of the enumerated, “exclusive” exceptions. Gray, 633 A.2d at 1093; see Dorsey, 96 A.3d at 341 (“[I]n interpreting the Tort Claims Act, exceptions to the absolute rule of immunity expressed in the statute ‘must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability.'”) (quoting Mascaro v. Youth Study Ctr., 523 A.2d 1118, 1123 (Pa. 1987)). In ascertaining the Act’s legality and legislative intent, we have repeatedly observed its provisions were based on the report and recommended text prepared by the General Assembly’s Joint State Government Commission tasked with analyzing the benefits and costs of the sovereign immunity defense. See Sovereign Immunity, Pennsylvania General Assembly, Joint State Government Commission (May 1978), http://jsg.legis.state.pa.us/resources/documents/ftp/publications/1978-05-01%201978%20Sovereign%20Immunity.pdf (last visited June 21, 2021); see Carroll, 437 A.2d at 397 (quoting Sovereign Immunity); Zauflik v. Pennsbury Sch. Dist., 104 A.3d 1096, 1121, 1124, 1130 (Pa. 2014) (discussing Sovereign Immunity). The Commission’s report makes clear the Act’s provisions are intended to “assure[] that the Commonwealth will not be required to process and defend various litigation brought against it in areas where risk management is totally uncertain” and “prohibit the creation of any new causes of action and merely [ ] remove the bar from suit where the cause of action already exists in the enumerated areas.” Sovereign Immunity at 10-11.
We have also considered the interplay between the Tort Claims Act and Sovereign Immunity Act with other laws.10 In Dorsey, though mindful of the strictures of the Tort Claims Act’s exclusive immunity exceptions, this Court determined that another statute, depending upon its particular construction and the timing of its enactment, might permissibly allow governmental liability for circumstances outside of Section 8542. Dorsey, 96 A.3d at 341-42 (holding the Tort Claims Act does not provide immunity for cause of action arising from breach of Section 3172 of the Probate, Estates and Fiduciaries Code, which confers liability upon the register of wills). And, in Dep’t of Envtl. Res. v. Auresto, 511 A.2d 815 (Pa. 1986), a case relied upon by the City, the Court considered whether the Recreational Use of Land and Water Act, 68 P.S. §§477-1 – 477-8, which provides tort immunity for landowners who allow public use of their property free of charge, could protect the Commonwealth from liability notwithstanding the Sovereign Immunity Act’s waiver of immunity for injuries caused by a dangerous condition on Commonwealth-owned real estate. Noting the Recreation Act was enacted prior to the Sovereign Immunity Act, at which time sovereign immunity was the blanket rule at common law, the Auresto Court reasoned the legislature would not have anticipated the possibility of Commonwealth liability; in addition, because the Sovereign Immunity Act was intended to expose the Commonwealth to the same liability as a private citizen, and a private citizen would have a statutory immunity defense, the Court determined the Commonwealth also had the protection of the particular immunity defense. Auresto, 511 A.2d at 817.
In contrast to these decisions in Dorsey and Auresto, where this Court approved of particular liability and immunity provisions supplied by other statutes which fell outside the parameters of, but were read in pari materia with, the governmental immunity acts, we have refused to adjust those boundaries to accommodate a local government ordinance: in Gray, we invalidated a Philadelphia ordinance which waived immunity for the negligent acts of police, finding it authorized the imposition of damages in situations not within Section 8542 of the Tort Claims Act, and “[t]herefore, the ordinance permits what the Act expressly prohibits, and it is thus invalid.” Gray, 633 A.2d at 1093; see also Dorsey, 96 A.3d at 340 (“[O]ur Court has recognized that the legislature is the exclusive body with authority to confer immunity upon political subdivisions.”), citing Gray, 633 A.2d at 1093; Carroll, 437 A.2d at 396 (“[M]unicipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the [l]egislature and subject to change, repeal or total abolition at its will.”) (citations and quotations omitted).
Furthermore, this Court has interpreted the Tort Claims Act Subsection 8542(b)(6) exception to immunity for dangerous conditions of municipally-owned streets consistently with Subsection 8522(b)(4) of the Sovereign Immunity Act (relating to waiver of immunity for Commonwealth real estate, highways and sidewalks), and held a municipality owes a duty of care to those using its property “to make its highways reasonably safe for their intended purpose,” “such as to require that the condition of the property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used[.]” McCalla v. Mura, 649 A.2d 646, 649 (Pa. 1994), citing Bendas v. White Deer, 611 A.2d 1184, 1186 (Pa. 1992); see also supra n.9.
We further note that, with specific regard to the streets of Philadelphia, the City’s Home Rule Charter provides, in relevant part:
The Department of Streets shall have the power and its duty shall be to perform the following functions:
(a) City Streets. It shall itself, or by contract, design construct, repair and maintain:
(1) City streets, which shall include highways, roads, streets, alleys, footways, bridges, tunnels, overpasses and underpasses, including approaches and viaducts, owned, controlled or operated by the City or designated in accordance with law as streets of the City[.]
Philadelphia Home Rule Charter §5-500(a)(1). A home rule charter, as defined by the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. §§2901-2984, is “[a] written document defining the powers, structures, privileges, rights and duties of the municipal government and limitations thereon.” 53 Pa.C.S. §2902. This Court has recognized the Home Rule Charter “emanated from the relevant provision of the State Constitution . . . and was duly adopted (i.e., enacted) by the affirmative vote of the electors of the City as the organic law of the corporate municipal body.” In re Addison, 122 A.2d 272, 275-76 (Pa. 1956). “That the Charter constituted legislation no less than does a statute of the legislature to like end is too plain for even cavil. . . . Wherefore, upon its due adoption, Philadelphia’s Home Rule Charter took on the force and status of a legislative enactment.” Id. at 275-76.
IV. Analysis
There is a well-defined public interest in the maintenance and safe repair of dangerous conditions existing on government-owned streets, and the municipal owners are thus charged with a duty of public service to perform such maintenance and repairs as a matter of necessity to members of the public. This dominant public policy is derived from over one hundred years of common law, is codified by statute within the Tort Claims Act, and is reflected by the organizational assignment of explicit duties within the Philadelphia Home Rule Charter.
While the clearly established policy of the Tort Claims Act is to provide an absolute rule of governmental immunity from negligence subject to its few, explicit exceptions without creating new causes of action, it is likewise the clear policy of the Act to codify and define the parameters of those excepted, permissible causes of action. Relevant here, the Tort Claims Act provides “[a] local agency shall be liable for damages on account of an injury to a person” where “damages would be recoverable under common law or a statute” if caused by a non-government entity, for “negligent acts of the local agency” consisting of “[a] dangerous condition of streets owned by the local agency” when the condition created a “reasonably foreseeable risk” of the kind of injury suffered, and when “the local agency had actual notice or could reasonably be charged with notice under the circumstances.” 42 Pa.C.S. §8542(a), (b)(6) (emphasis added). Similarly, though whether the Philadelphia Home Rule Charter creates a duty giving rise to a cause of action, or expresses a dominant public policy, is not squarely before us, what it certainly does do is “define” — with the same legal force as a statute, see In re Addison, 122 A.2d at 275-76 — the City’s mandatory and exclusive responsibility, through its Department of Streets, to “design construct, repair and maintain [ c]ity streets[.]” 53 Pa.C.S. §2902 (definition of “home rule charter”); Philadelphia Home Rule Charter §5-500(a)(1). In furtherance of the Tort Claims Act’s expression of policy to protect the public fisc by limiting municipalities’ exposure to liability, for instances where immunity is waived, the General Assembly provided a statutory cap on the amount of damages recoverable, defined the circumstances under which damages shall be recoverable, authorized local agencies to purchase or administer liability insurance, and prescribed permissible payment planning for judgments not fully indemnified by insurance. 42 Pa.C.S. §§8553, 8559, 8564.11 What the General Assembly did not provide, however, is a mechanism for a municipality to immunize itself, through exculpatory contracts or any other means.
The City is a municipality, an agent of the state, “invested with certain subordinate governmental functions for reasons of convenience and public policy[,] . . .and the extent of [its] powers [is] determined by the [l]egislature[.]” Carroll, 437 A.2d at 396 (citations and quotations omitted). “[T]he legislature is the exclusive body with authority to confer immunity upon political subdivisions” for claims arising out of exceptions to the Tort Claims Act. Dorsey, 96 A.3d at 340 (citation omitted). Because the Release would allow the City to confer immunity upon itself for such claims, the Release prohibits what the Act expressly allows, and would achieve for the City what our jurisprudence plainly prohibits. Id.; cf. Gray, 633 A.2d at 1093-94. “Where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject,” — here, the definitive policy to remove the shield of immunity for a municipality’s negligence in the maintenance or repair of dangerous street conditions for which they have proper notice — “that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Boyd, 94 A.2d at 46 (internal quotations omitted). Thus, the Release is invalid because it contravenes public policy.12
We disagree with the City’s position its role is identical to any private host of a recreational or non-essential event that may immunize itself from liability for breach of its duty to maintain safe premises. Though we recognize a plaintiff’s ordinary negligence claims may generally be barred where he voluntarily executes an exculpatory contract in order to participate in such activities, the recreational, non-essential nature of the event is not dispositive in this instance. A private host is not assigned the same mandatory duty of public service as is the City, to maintain its public streets in a condition that is “reasonably safe for their intended purpose,” that is, “safe for the activities for which [they are] regularly used, intended to be used or reasonably foreseen to be used” by the travelling public under the conditions specified by the Tort Claims Act. McCalla, 649 A.2d at 648-49.13 Though the event’s use of the City’s streets may have been time-limited and non-essential, the City’s duty to exercise reasonable care in discharging its independently-derived and essential function of street repair arose long before the Bike Ride. The City’s duty materialized when the City had actual notice or could reasonably be charged with notice of the existence of the sinkhole. Under these circumstances — where the City was charged with an essential public-service duty, and the fact-finder determined the requisite elements of the statutory exception to immunity (including proper notice of a dangerous condition and a reasonably foreseeable risk of injury) had been established — enforcing the Release to immunize the City would jeopardize health, safety, and welfare of the people by removing any incentive for parties to exercise minimal standards of care due to maintain public streets in reasonably safe condition for their reasonably foreseeable uses, such as a planned charity bike ride, where known or knowable dangerous conditions pose great and reasonably preventable risks.14
See Tayar, 47 A.3d at 1203; Feleccia, 215 A.3d at 21; McCalla, 649 A.2d at 648-49; 42 Pa.C.S. §8542(b)(6).
V. Conclusion
Accordingly, we hold it is contrary to public policy to enforce an exculpatory contract immunizing the City from its essential duty of public service, which exists notwithstanding the context of a recreational event. Any other application of the Release would elevate the City’s private exculpatory contract over the public duties assigned to it and the authority afforded to it by the General Assembly. Under these discrete circumstances, enforcement of the Release would jeopardize the health, safety and welfare of the public at large, and the Release is thus rendered invalid as it violates public policy principles. We therefore reverse the decision of the Commonwealth Court.
Order reversed. Jurisdiction relinquished.
Justices Donohue, Wecht and Mundy join the opinion.
Chief Justice Baer files a dissenting opinion in which Justices Saylor and Todd join.
——–
Footnotes:
1. Incomplete quadriplegia is a condition defined by partial damage to the spinal cord resulting in weakness and decreased sensation in the arms and legs, but the injured person retains some function below the level of the injury. See N.T. 2/26/2018 at 123, 140.
2. Prior to trial, appellants settled with ESM and dismissed the additional defendants; the trial proceeded against the City as the sole remaining defendant. See Degliomini. v. Philadelphia Phillies, No. 1601, 2018 WL 11243021 at *1 (C.P. Philadelphia, Oct. 24, 2018).
3. The Tort Claims Act provides, in relevant part, as follows:
(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
* * *
(6) Streets. —
(i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
42 Pa.C.S. §8542(b)(6)(i).
4. Philadelphia’s Home Rule Charter provides, in pertinent part, as follows:
The Department of Streets shall have the power and its duty shall be to perform the following functions:
(a) City Streets. It shall . . . repair and maintain:
(1) City streets, which shall include highways, roads, streets, alleys . . . owned, controlled or operated by the City or designated in accordance with law as streets of the City;
* * *
Philadelphia Home Rule Charter §5-500(a)(1).
5. The jury allocated 90% of the negligence to the City and 10% to ESM. See Degliomini v. Philadelphia Phillies, 2018 WL 11243021 at *1.
6.
See 42 Pa.C.S. §8553(b) ($500,000 limitation on damages against local agencies). The final judgment entered was $521,544.52 in damages against the City. Degliomini v. Philadelphia Phillies, No. 1601, 2018 WL 11243022 at *1 (C.P. Philadelphia, Nov. 20, 2018) (amended order).
7.
See Ayala v. Philadelphia Bd. of Pub. Educ., 305 A.2d 877, 881-83 (Pa. 1973) (abolishing common law defense of governmental immunity).
8. The City additionally references a collection of intermediate appellate court cases which uphold the validity of releases of liability for ordinary negligence in connection with recreational activities, including the two cases relied upon by the Commonwealth Court below relating specifically to organized bicycling events. See City’s Brief at 14, citing Toro v. Fitness Int’l LLC, 150 A.3d 968, 974 (Pa. Super. 2016) (using a fitness club); McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 120-21 (Pa. Super. 2015) (whitewater rafting); Wang v. Whitetail Mountain Resort, 933 A.2d 110, 113-14 (Pa. Super. 2007) (snow tubing); Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887, 891 (Pa. Super. 2006) (motorcycle riding); Seaton v. E. Windsor Speedway, Inc., 582 A.2d 1380, 1383 (Pa. Super. 1990) (working in pit crew at auto racing track); Valeo v. Pocono Int’l Raceway, Inc., 500 A.2d 492, 493 (Pa. Super. 1985) (automobile racing); Scott, 2010 WL 9512709 at *4-5 (bicycling event); Vinikoor, 974 A.2d at 1240 (same).
9. The position articulated by Chief Justice Baer in his dissenting opinion aligns substantially with the arguments advanced by the City, specifically: a municipality may be liable only to the extent that a private defendant would be liable, and a private defendant is free to execute an exculpatory release to limit its risk, see Dissenting Opinion at 3; the purpose of the Tort Claims Act is to limit, not expand, municipal liability, see id. at 3-4; it is the immunity, not the liability, that is non-waivable, see id. at 4; the Home Rule Charter is organizational and expresses no dominant public policy or standard of care nor does it have a remedial purpose, see id.; the City’s general duty to repair and maintain streets is not akin to a non-waivable health and safety regulation, see id. at 5; and, because the City otherwise has a common law duty to maintain and repair its streets, and would remain liable for reckless or grossly negligent conduct, exculpation under the Release for particular enumerated conduct during the event does not jeopardize public safety and welfare, see id. at 5-6. There are several points made by the dissent and the City with which our analysis may coexist, and given the similarity of their positions, we primarily address them together.
10. Because of the similarities of their provisions, the Tort Claims Act and Sovereign Immunity Act are interpreted consistently. Finn v. City of Philadelphia, 664 A.2d 1342, 1344 (Pa. 1995) (“[T]his court has held that the two statutes dealing with governmental and sovereign immunities, viz., the Political Subdivision Tort Claims Act and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter.”), citing, inter alia, Kiley by Kiley v. City of Philadelphia, 645 A.2d 184, 186 (Pa. 1994), Snyder v. Harmon, 562 A.2d 307, 312 n.7 (Pa. 1989); see also McCalla v. Mura, 649 A.2d 646, 648-49 (Pa. 1994) (analogizing the Court’s interpretation of Sovereign Immunity Act Subsection 8522(b)(4), regarding waiver of immunity for Commonwealth real estate, highways and sidewalks, to interpret Tort Claims Act Subsection 8542(b)(6), regarding waiver of immunity for municipality-owned streets).
11. Though the dissent suggests we have not identified statutory language expressing an “intent to prevent the City from limiting its liability by contractual release[,]” Dissenting Opinion at 2, we conclude these provisions of the Act prescribing both the terms of payment plans and limitations on liability via a damages cap and indemnity agreements, in conjunction with the Act’s pronouncement a municipality “shall be liable for damages” resulting from certain known conditions of the roads, indicate the General Assembly has considered the parameters for limiting municipal liability “in areas where risk management is totally uncertain[,]” and applied them; the provisions thus do express an intent to prevent a municipality from complete exculpation of liability by release. 42 Pa.C.S. §8542; see id. §§8553, 8559, 8564; Sovereign Immunity at 10. Furthermore, in holding the fully exculpatory release in this case is invalid, we do not foreclose the possibility the City may devise some other valid limitation on liability, the contours of which are not implicated here. See, e.g., State Farm, 54 A.3d at 933, 939-40 (Wecht, J., concurring and dissenting) (in accordance with RESTATEMENT (SECOND) OF CONTRACTS §195, party charged with duty of public service may not be exempted from tort liability; however a limitation on liability may be valid, but must be reasonable “‘and not so drastic as to remove the incentive to perform with due care'”), quoting Valhal Corp., 44 F.3d at 204 (emphasis added).
12. The dissent observes, consistent with our decision in Williams, it is the General Assembly’s role “to determine what policy aims are important enough to justify overturning a private contract.” Dissenting Opinion at 2, citing Williams, 32 A.3d at 1200. We agree, and acknowledge the aims of the Tort Claims Act are not the same as a mandatory health and safety statute the violation of which constitutes negligence per se. See id. at 4-5. However, contrary to the dissent and as explained in greater detail throughout this analysis, the General Assembly has conferred limited powers to municipalities, and prescribed limitations on both municipal liability and municipal immunity. Thus, rather than “conflat[ing] statutory governmental immunity with a private contractual release of liability” as the dissent describes, id. at 3, we conversely view the immunity afforded by the exculpatory release in this case as impermissibly conflating a private contract with the status of those statutory provisions defining the parameters of governmental immunity. See supra n.11; see also Valhal Corp., 44 F.3d at 206-07 (under Pennsylvania law, party’s charge with duty to the public would “elevate its private contracts to matters of public concern” and therefore violate public policy).
13. To the extent the City argues its duty related to the Bike Ride is not in the same category as entities found to be charged with a duty of public service, see City’s Brief at 15, it draws our attention to RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY §2 comment e (2000), presumably to indicate the category is limited to the entities expressly listed therein. More completely, comment e states, “An agreement purporting to exculpate a person charged with the public duty to perform a service — such as a common carrier, an innkeeper, a public warehouse, or a public utility — is normally not effective unless the terms of the agreement have been approved by a public regulatory body.” Id. (emphasis added). The Reporter’s Note to comment e further provides, “In some situations, exculpatory contracts are against public policy and are unenforceable. The most common situation is when the defendant is performing a public-service duty.” Id. We do not view these examples as providing a complete list of types of entities charged with public duty. Nor do we herein adopt this restatement of the law, but note it supports the proposition that an entity performing a duty of public service cannot exculpate itself by contract.
14. We do not herein address injuries related to risks associated with the event itself, but only those related to the particular conditions of the streets for which the City “had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542(b)(6)(i).
G-YQ06K3L262
http://www.recreation-law.com
Confusing underlying reason for filing a lawsuit against a gymnastics’ studio for questionable injuries gets slammed by the Ohio Appellate court.
Posted: June 5, 2023 Filed under: Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue), Uncategorized | Tags: Diva Gymnastics Academy, Gymnastics, Gymnastics Academy, minors, Ohio, Release, Release Law, Waiver 1 CommentPlaintiffs argued the injuries to their children were caused by the gym instructors attempting to get back at the parents.
Campagna-McGuffin v. Diva Gymnastics Acad., Inc., 199 N.E.3d 1034 (Ohio App. 2022)
State: Ohio; Court of Appeals of Ohio, Fifth District, Stark County
Plaintiff: Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson
Defendant: Diva Gymnastics Academy, Inc., Travis Seefried
Plaintiff Claims: Negligence
Defendant Defenses: Release, Assumption of the Risk
Holding: For the Defendant
Year: 2022
Summary
Parents of kids studying at a gymnastics studio were thrown out of the gym. The parents sued claiming the gym was getting back at the kids by exercising them for too long and hard causing injuries. However, in deposition, the kids said they were sore but not injured. The parents also signed a release that stops claims by minors in Ohio.
Facts
On June 25, 2020, appellants Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson, filed a complaint against appellee Diva Gymnastics Academy, Inc., alleging negligence, negligent supervision, bodily injury with mental anguish, and loss of consortium. Diva is owned and operated by Dr. Lisa Ford (“Ford”).
Appellants McGuffin, Bagnola, and Benson filed their first amended complaint on September 23, 2020, adding appellee Travis Seefried, the head coach at Diva, as a defendant, and alleging the following claims: negligence, negligent supervision, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium.
Appellants, who brought these claims on behalf of their daughters, alleged that, between 2017 and 2019, their daughters were injured as a result of excessive conditioning they were made to do by Seefried and Diva. Specifically, appellants allege they had to do excessive frog jumps, excessive butt scoots, excessive v-ups, and hang on the bars for long periods of time. They allege this extra conditioning amounted to a form of punishment, which breached appellees’ duty to teach, train, and instruct according to United States of America Gymnastics (“USAG”) rules, and the duty of ordinary care for conducting gymnastics activities. There are no allegations of any sexual misconduct against appellees.
On November 20, 2020, appellant Felisha Waltz, as legal guardian of Abeka Fouts, filed a complaint under a separate case number, alleging similar conduct and causes of action against appellees. In the second case, appellant Waltz filed a second amended complaint, adding appellant Courtney Hawk, as legal guardian of Samantha Hawk, as a plaintiff in the case.
Appellees filed answers in each of the cases, denying the allegations against them, and arguing appellants filed their cases as a way to seek revenge on appellees. Specifically, appellees argue that four of the five appellant gymnasts were asked to leave Diva due to inappropriate conduct, such as harassing other gymnasts and disobeying coaches.
…the trial court granted appellees’ motion for summary judgment. The court found: (1) the deposition testimony of appellants contradicts their claims that they suffered physical injury, and appellants have provided no evidence that they suffered a physical injury as a result of appellees’ conduct; (2) appellants’ claims are barred by the Ohio Recreational Activity Doctrine because appellants accepted the risks inherent in the sport by engaging in competitive gymnastics; and (3) appellants acknowledged the inherent risk and expressly assumed the risk by signing “Release, Indemnification, and Hold Harmless Agreements.”
Analysis: making sense of the law based on these facts.
This was an interesting case to read and is still puzzling as to the real motive for the lawsuit. Where the lawsuit failed is the complaint said the students were injured by the actions of the defendants, yet in testimony during depositions, the students stated they were not injured.
This also extended to the affidavits filed by the plaintiffs supporting those injury claims. The affidavits were excluded from the record (struck) because they conflicted with the testimony in the depositions. Meaning the depositions of the plaintiffs were taken. The defendant filed a motion for summary judgment and in response to the defendant’s motion for summary judgment; they supplied affidavits supporting their response. The court found the affidavits were conflicting (and obviously self-serving) so the affidavits were struck.
Affidavits that are inconsistent with earlier deposition testimony are subject to being stricken. “An affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for summary judgment.” Byrd v. Smith. Further, “[w]hen determining the effect of a party’s affidavit that appears to be inconsistent with the party’s deposition and that is submitted either in support of or in opposition to a motion for summary judgment, a trial court must consider whether the affidavit contradicts or merely supplements the deposition.”
This is an extremely rare action on behalf of the court. Thus, the court found the action of the plaintiff in doing this to be beyond reasonable. The court went so far as to review the depositions and point out the inconsistencies in the affidavits.
The trial court provided a detailed description of how each of the affidavits contradicts the affiant’s deposition testimony. Appellants contend the affidavits were merely condensed versions of each affiant’s deposition testimony, and the affidavits did not contradict the deposition testimony. This Court has reviewed each of the depositions and affidavits at issue. We find the trial court did not abuse its discretion in determining the affidavits contradict the depositions, and concur with the trial court’s analysis in striking each of the affidavits.
The courts’ actions were fully supported by the appellate court.
The court then dived into the legal issues of the appeal. The court held that in Ohio, there were three ways to sue for injuries that arose from recreational sporting activities. “Three standards are used to permit recovery for injuries received during sports and recreation activities: (1) intentional tort; (2) willful or reckless misconduct, and (3) negligence.”
Here the plaintiff claimed the defendant was negligent. Ohio, like most other states, has the following requirements to prove negligence.
In order to establish a cause of action for negligence, a plaintiff must demonstrate: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) and the plaintiff suffered injury proximately caused by the defendant’s breach of duty.
Ohio has the same defenses as most other states to negligence claims for sports and recreational activities. Assumption of the risk is a defense to a claim of negligence.
However, when a defendant shows the plaintiff assumed the risk of injury through participating in an inherently dangerous activity, the duty of care is eliminated.
Ohio recognizes three types of assumption of the risk: express, primary, and implied assumption of the risk. Primary assumption of the risk is:
Primary assumption of the risk is a defense of extraordinary strength because it essentially means “that no duty was owed by the defendant to protect the plaintiff from that specific risk,” so a “court must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery.” A successful primary assumption of the risk defense means that the duty element of negligence is not established as a matter of law. Thus, the defense prevents the plaintiff from making a prima facie case of negligence. The applicability of the primary-assumption-of-the-risk defense presents an issue of law for the court to decide.
If no duty is owed there can be no breach of a duty, therefore, no negligence. To prove negligence the plaintiff must prove all the elements to win their case. When applied to sports or recreational cases, this relieves the burden on the defendant to protect the players from the risks of the sport.
When individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional.
The primary assumption of risk doctrine defense relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity, because such risks cannot be eliminated. “The types of risks associated with [an] activity are those that are foreseeable and customary risks of the * * * recreational activity.”
Ohio has a test to determine if the risks encountered by the plaintiff were inherent in the sport.
The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires: (1) the danger is ordinary to the game; (2) it is common knowledge the danger exists; and (3) the injury occurs as a result of the danger during the course of the game. “The nature of the sporting activity is highly relevant in defining the duty of care owed by a particular defendant: what constitutes an unreasonable risk, under the circumstances, of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participant’s idea of foreseeable conduct in the course of the game.”
The court must determine for each sport, game, or activity if the injury was a risk of the sport. An example would be badminton. There is probably a risk of being hit by a badminton racquet in the sport, but there is no risk of being injured by being tackled by an opposing badminton player. Football would be just the opposite. A football player assumes the risk of being tackled; however, nothing in the rules or the sport would allow a football player to be hit by a racquet.
The next argument raised by the plaintiff was the activities that gave rise to the injuries in the complaint were not inherent in the sport. The injuries were incurred because of excessive conditioning, which was to punish the participants and their mothers.
The court did not agree with the plaintiff’s arguments.
We first note that not every violation of a sport’s rules meets the negligence standard, and the focus for what constitutes an unreasonable risk of harm under the circumstances involves the examination of both the “rules and customs” associated with the sport that shape the participants’ ideas of foreseeable conduct.
Additionally, none of the testimony or proof offered by the plaintiff supported this argument.
The fact that appellants submitted an expert affidavit opining that appellees engaged in violations of the Safe Sport Policy and that their conduct is “not inherent” in gymnastics activities does not create a genuine issue of material fact in this case.
Since the affidavits were found to be “inconsistent” with the deposition testimony, the affidavits did not prove the injuries caused by excessive training were not inherent to the sport. This means the depositions are given more weight because they are taken under oath and the questions are asked by opposing counsel. Affidavits are sworn statements prepared by the party presenting them and not questioned by opposing counsel.
The appellate court then looked to the defense of express assumption of the risk. The plaintiffs argued the releases, the express assumption of the risk documents, only covered inherent risks of the sport and did not identify the actual risks causing the injuries to the plaintiffs.
Appellants argue the trial court committed error in applying the express assumption of the risk doctrine to bar their claims because the release the parents signed only covers “inherent” risks, and the risks in this case are not inherent to gymnastics; further, that the release failed to identify the precise activity which resulted in injury.
Each appellant-mother signed a document entitled “Release, Indemnification, and Hold Harmless Agreement” (“Release”) prior to any of the incidents alleged in the complaint. Each appellant-mother in this case admitted in their deposition to signing the Release when registering their appellant-daughter for gymnastics at Diva.
A release is a separate defense to primary assumption of the risk. However, a well-written release can also be used to prove primary assumption of the risk. A release must have the legal language or wording needed to meet the requirements in most states of making sure the person signing the release knows and understands they are giving up their right to sue for their injuries. An assumption of the risk document is an acceptance of the risks identified in the document or easily identified by the signor based on education, experience, and knowledge. Consequently, a release can be both a release and an express assumption of the risk.
Ohio allows a parent to sign a release on behalf of a minor, waiving the minor’s right to sue as well as the parents.
Express assumption of the risk is a separate and independent bar to recovery from the doctrine of primary assumption of the risk.
Valid exculpatory clauses or releases constitute express assumption of risk, and is the same as waiving the right to recover. A participant in a recreational activity is free to contract with the proprietor of such activity to relieve the proprietor of responsibility for damages or injuries to the participant caused by negligence, except when it is caused by wanton or willful misconduct. Appellants do not allege wanton or willful misconduct in this case. Parents have the authority to bind their minor children to exculpatory agreements in favor of sponsors of sports activities where the cause of action sounds in negligence.
The court then reviewed the requirements under Ohio’s law for the release to be enforceable. These requirements are the same as most other states.
For express assumption of the risk to operate as a bar to recovery, the party waiving his or her right to recover must make a conscious choice to accept the consequences of the other party’s negligence. The waiver must be clear and unequivocal. Releases from liability are narrowly construed; however, courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.
Then the court explained how the release signed by the parents met the requirements under Ohio’s law.
In this case, the Release clearly specified the kind of liability released, as the Release contains the word “negligence” multiple times. It also clearly specifies the persons and/or entities being released (Diva, its owners, directors, officers, employees, agents, volunteers, participants, and all other persons or entities acting for them). The language contained in the Release is sufficiently clear and unambiguous such that the express assumption of the risk defense bars recovery.
What is interesting is there is very little discussion in Ohio anymore about whether the release signed by a parent stops a minor from suing.
The plaintiffs then tried to argue that because the word “conditioning” was not in the release, the release should fail for not identifying the risk causing the injury to the youth.
Appellants contend since the word “conditioning” does not appear in the Release, their claims are not barred. However, appellants expressly assumed the risk for “gymnastics, tumbling, cheering, high bars, low bars, beam training, activities, exhibitions, demos and open gym.” Further, the language in the Release states that “risks include, but are not limited to,” the list above. In the second paragraph of the Release, appellants expressly “assume[d] all of the risk inherent in this activity.” By signing the Release, appellants acknowledged gymnastics involves “known and unanticipated risks which could result in physical or emotional injury.”
However, Ohio, like most other states does not need a release to be a specific list of the possible ways someone can get hurt engaging in a sport or recreational activity. That list would make releases thousands of pages long. The release must just identify the fact that there is a risk.
The plaintiffs then argued that the release did not identify the risk of “excessive conditioning” which is not inherent in the sport of gymnastics.
Appellants additionally argue they did not expressly assume liability because the risks suffered by appellants during “excessive conditioning” are not inherent risks within the sport of gymnastics. As noted above, the Release specifically includes “known and unanticipated risks,” including risks that “could result in physical or emotional injury.” Further, as detailed above, the exercises, drills, and conditioning alleged by appellants were normal, routine, and customary during high-level competitive gymnastics training.
Not only did the court find that language was not necessary in the release, the court found came back to the point that earlier the plaintiff had not proven there was excessive conditioning.
We find the language contained in the Release is sufficiently clear and unambiguous. Appellants expressly assumed the risks they describe in their depositions. Accordingly, the express assumption of the risk defense is a separate and independent bar to recovery in this case.
The final issue was the trial court found the plaintiffs did not prove they had suffered any injury.
As an alternative and independent basis for granting summary judgment, the trial court found appellants could not meet the third part of the negligence test, i.e., that appellants suffered an injury proximately caused by appellees’ breach of duty.
The affidavits in support of the cross motions probably did not make the trial court or the appellate court happy when they were so contradictory to the depositions. So, it was easy to rule the plaintiffs did not make their case when they could not prove the actions taken were outside of the normal actions of a gymnastic gym or the fact the youth suffered no injury.
So Now What?
Usually, once an appellate court finds one way to support the trial court’s decision, it ignores the other arguments made by an appellant or appellee. When the appellate court reviews all the issues, it means the legal issues were not properly identified or applied below or the facts of the case are such that the appellant court wants to eliminate any additional attempts to make baseless arguments again.
The court showed how not every possible risk must be in a release. However, the more risk identified in a release, the greater the chance the release can be used as an express assumption of the risk document to stop a lawsuit if the release is found to be void.
For other cases on Ohio law.
Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.
Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
For other case law on a parent’s right to sign away a minor’s right to sue see:
States that allow a parent to sign away a minor’s right to sue
Adult volunteer responsibility ends when the minor is delivered back to his parents.
An example of adults and money getting in the way of kids has fun
As long as there are laws, there will be people trying to get around them.
BSA Summer Camp was able to have punitive damages claim dismissed prior to trial
Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims? Maybe, but only by omission, not by intent I believe. http://rec-law.us/2qTjjBw
Iowa does not allow a parent to sign away a minor’s right to sue.
Is being overprotective putting our kids at risk
New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue. http://rec-law.us/2r7ls9l
North Dakota decision allows a parent to sign away a minor’s right to sue.
Paranoia can only get you so far, and then you get into the absurd.
The Boy Scouts of America are not liable because they owed no duty, they did not own the camp
This article takes a real look at the risks parents allow their children to face
You’ve got to be kidding: Chaperone liable for the death of girl on a trip
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
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Outdoor Recreation Insurance, Risk Management and Law
Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Campagna-McGuffin v. Diva Gymnastics Acad., Inc., 199 N.E.3d 1034 (Ohio App. 2022)
Posted: June 5, 2023 Filed under: Activity / Sport / Recreation, Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue) | Tags: Diva Gymnastics Academy, Gymnastics, Gymnastics Academy, minors, Negligence, Ohio, Ohio Release law, Release, Waiver Leave a commentTo Read an Analysis of this decision see
Confusing underlying reason for filing a lawsuit against a gymnastics’ studio for questionable injuries gets slammed by the Ohio Appellate court.
199 N.E.3d 1034
Angela CAMPAGNA-MCGUFFIN, et al., Plaintiffs-Appellants
v.
DIVA GYMNASTICS ACADEMY, INC., et al., Defendants-Appellees
No. 2022 CA 00057
Court of Appeals of Ohio, Fifth District, Stark County.
Date of Judgment Entry: October 31, 2022
DAVID C. PERDUK, 3603 Darrow Road, Stow, OH 44224, LAWRENCE J. SCANLON, JAMES R. GALLA, 57 S. Broadway St., 3rd Fl., Akron, OH 44308, For Plaintiffs-Appellants.
JUSTIN A. DUBLIKAR, KYLE A. CRAMER, Cincinnati Insurance Co., 50 S. Main Street, Ste. 615, Akron, OH 44308, FRANK G. MAZGAJ, FRANK G. MAZGAJ, JR., 3737 Embassy Parkway, Ste. 100, Akron, OH 44333, For Defendants-Appellees.
JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R Baldwin, J.
OPINION
Gwin, P.J.
{¶1} Appellants appeal the April 5, 2022 judgment entry of the Stark County Court of Common Pleas granting appellees’ motion for summary judgment.
Facts & Procedural History
{¶2} On June 25, 2020, appellants Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson, filed a complaint against appellee Diva Gymnastics Academy, Inc., alleging negligence, negligent supervision, bodily injury with mental anguish, and loss of consortium. Diva is owned and operated by Dr. Lisa Ford (“Ford”).
{¶3} Appellants McGuffin, Bagnola, and Benson filed their first amended complaint on September 23, 2020, adding appellee Travis Seefried, the head coach at Diva, as a defendant, and alleging the following claims: negligence, negligent supervision, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium.
{¶4} Appellants, who brought these claims on behalf of their daughters, alleged that, between 2017 and 2019, their daughters were injured as a result of excessive conditioning they were made to do by Seefried and Diva. Specifically, appellants allege they had to do excessive frog jumps, excessive butt scoots, excessive v-ups, and hang on the bars for long periods of time. They allege this extra conditioning amounted to a form of punishment, which breached appellees’ duty to teach, train, and instruct according to United States of America Gymnastics (“USAG”) rules, and the duty of ordinary care for conducting gymnastics activities. There are no allegations of any sexual misconduct against appellees.
{¶5} On November 20, 2020, appellant Felisha Waltz, as legal guardian of Abeka Fouts, filed a complaint under a separate case number, alleging similar conduct and causes of action against appellees. In the second case, appellant Waltz filed a second amended complaint, adding appellant Courtney Hawk, as legal guardian of Samantha Hawk, as a plaintiff in the case.
{¶6} Appellees filed answers in each of the cases, denying the allegations against them, and arguing appellants filed their cases as a way to seek revenge on appellees. Specifically, appellees argue that four of the five appellant gymnasts were asked to leave Diva due to inappropriate conduct, such as harassing other gymnasts and disobeying coaches.
{¶7} Appellees filed a motion to consolidate the cases in February of 2021. Appellants did not oppose the motion. Accordingly, the trial court consolidated the cases on February 19, 2021.
{¶8} Appellees filed a motion for summary judgment on October 29, 2021. Appellants filed a memorandum in opposition on November 29, 2021. Appellees filed a reply brief on December 8, 2021. In their reply brief, appellees moved the trial court to strike the affidavits filed with appellants’ memorandum in opposition because the affidavits contradict the affiants’ deposition testimony.
{¶9} After appellees filed their motion for summary judgment, appellants filed a motion to file a third amended complaint in order to delete and/or dismiss certain counts of the complaint. The trial court granted appellants’ motion to file a third amended complaint. The third amended complaint deleted/dismissed the following cases of actions: Count Four (intentional infliction of emotional distress), Count 5 (negligent infliction of emotional distress) and Count 7 (loss of consortium). Accordingly, the remaining claims against appellees were negligence, negligent supervision, and “bodily injury with mental anguish.”
{¶10} The trial court issued a judgment entry on March 23, 2022, stating it was granting appellees’ motion for summary judgment, and stating it would issue a final judgment entry with the court’s findings and analysis. The trial court issued its final judgment entry on April 5, 2022. First, the trial court granted appellees’ motion to strike the affidavits submitted by appellants in response to appellees’ motion for summary judgment. The trial court provided, in detail, how and why each of the affidavits conflicted with the testimony each affiant gave during their deposition testimony. The trial court stated it would not consider the affidavits when ruling on the motion for summary judgment.
{¶11} Next, the trial court granted appellees’ motion for summary judgment. The court found: (1) the deposition testimony of appellants contradicts their claims that they suffered physical injury, and appellants have provided no evidence that they suffered a physical injury as a result of appellees’ conduct; (2) appellants’ claims are barred by the Ohio Recreational Activity Doctrine because appellants accepted the risks inherent in the sport by engaging in competitive gymnastics; and (3) appellants acknowledged the inherent risk and expressly assumed the risk by signing “Release, Indemnification, and Hold Harmless Agreements.”
{¶12} Appellants appeal the April 5, 2022 judgment entry of the Stark County Court of Common Pleas and assign the following as error:
{¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY FINDING THAT OHIO’S RECREATIONAL DOCTRINE BARS APPELLANTS’ CLAIMS.
{¶14} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY FINDING THAT THERE WAS NO EVIDENCE OF PHYSICAL INJURY CAUSED BY APPELLEE.
{¶15} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY STRIKING THE APPELLANTS’ AFFIDAVITS.”
{¶16} For ease of discussion, we will discuss appellants’ assignments of error out of sequence.
III.
{¶17} In their third assignment of error, appellants contend the trial court committed error in striking their affidavits. Appellants submitted affidavits of themselves (mothers) and their daughters in response to appellees’ motion for summary judgment. The trial court struck the affidavits, finding they conflicted with the affiants’ deposition testimony.
{¶18} Appellants first contend the trial court could not strike the affidavits because the proper procedure was not followed, as appellees never filed a motion to strike. However, in the reply brief dated December 8, 2021, appellees specifically state, “[t]he contradictions, discrepancies, and self-serving intent behind these Affidavits warrants the Affidavits of Macy McGuffin, Angela Campagna-McGuffin, Heaven Ward, Dawn Bagnola, Jocelynn Benson, Shelly Benson, Abeka Fouts, Felisha Waltz, Samantha Hawk, and Courtney Hawk be stricken from the record.”
{¶19} Appellants also contend that since the issue was raised in a reply brief, they did not have a “procedural mechanism” to respond. However, appellants did not attempt to strike the allegedly improper portion of the reply brief, nor did they seek leave to file a sur-reply. This Court has previously held that when an appellant does not attempt to strike the allegedly improper portion of the brief or seek leave to file a sur-reply, appellant waives any error. Edwards v. Perry Twp. Board of Trustees , 5th Dist. Stark No. 2015CA00107, 2016-Ohio-5125, 2016 WL 4062842 ; Carrico v. Bower Home Inspection, LLC , 5th Dist. Knox No. 16CA21, 2017-Ohio-4057, 2017 WL 2350951.
{¶20} Appellants also contend this Court should review the trial court’s granting of the motion to strike under a de novo review because the striking of the affidavits took place within the summary judgment pleading process. However, this Court has consistently reviewed entries striking affidavits, including entries striking affidavits within the summary judgment pleading process, under an abuse of discretion standard. Curtis v. Schmid, 5th Dist. Delaware No. 07 CAE 11 0065, 2008-Ohio-5239, 2008 WL 4493307 ; Campbell v. WEA Belden,
LLC , 5th Dist. Stark No. 2006CA00206, 2007-Ohio-1581, 2007 WL 969415 ; see also Pickens v. Kroger Co. , 10th Dist. Franklin No. 14AP-215, 2014-Ohio-4825, 2014 WL 5493882. Pursuant to our established precedent, we review the trial court’s striking of the affidavits under an abuse of discretion standard. In order to find an abuse of discretion, we must find that the trial court’s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶21} Affidavits that are inconsistent with earlier deposition testimony are subject to being stricken. “An affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for summary judgment.” Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47. Further, “[w]hen determining the effect of a party’s affidavit that appears to be inconsistent with the party’s deposition and that is submitted either in support of or in opposition to a motion for summary judgment, a trial court must consider whether the affidavit contradicts or merely supplements the deposition.” Id.
{¶22} The trial court provided a detailed description of how each of the affidavits contradicts the affiant’s deposition testimony. Appellants contend the affidavits were merely condensed versions of each affiant’s deposition testimony, and the affidavits did not contradict the deposition testimony. This Court has reviewed each of the depositions and affidavits at issue. We find the trial court did not abuse its discretion in determining the affidavits contradict the depositions, and concur with the trial court’s analysis in striking each of the affidavits.
{¶23} In each of the affidavits of the appellant-daughters in this case, they averred they were forced to do excessive conditioning as a form of punishment, and that such conditioning hurt physically and emotionally, causing pain and injury. However, the testimony in each of their depositions is inconsistent with or contradictory to their deposition testimony.
{¶24} Macy McGuffin stated in her deposition that there was no part of the conditioning at Diva she didn’t like, she did all the things she was asked to do, other than being yelled at, she could not remember anything wrong or inappropriate before she fell off the bars during a meet, she did not have panic attacks, and she was not treated for physical injury. While she first mentioned a knee injury after doing frog jumps, she then stated she did not feel pain in her knee after the frog jumps, she did not know which knee hurt, and she could not remember if she told anyone about knee pain that subsequently developed. Heaven Ward testified that the physical injuries she sustained while at Diva were “just part of the sport,” her trauma involved people blaming her for “stuff [she] didn’t do, the extra conditioning “hurt [my] feelings” and made her upset because she thought she didn’t deserve it; and nothing with the coaching at Diva resulted in her being physically hurt. Jocelynn Benson stated her injuries, like a sprained ankle and callouses were “just normal things that happened in gymnastics,” her panic attacks and anxiety may have been caused by the general pressure put on her because expectations were really high and she was nervous she would not meet these expectations, and it was horrible for her at Diva because she could not handle the pressure put on her and didn’t know what to do. The only other physical injury Benson testified to was asthma attacks, which was a pre-existing condition that she still has today. Abeka Fouts testified the injuries she suffered at Diva consisted of callouses on her hands after several years of gymnastics, and an injury she sustained when she fell off the balance beam when another gymnast threw a dodgeball at her, and that she had a counselor for other issues, but never talked or discussed anything about Diva with the counselor. During Samantha Hawk’s deposition testimony, there was no testimony that she received any injury from doing pull-ups or frog jumps. Rather, she stated she sprained an ankle at practice and hurt her toe on the bar, neither of which involved the coaches.
{¶25} Similarly, each of the appellant-mothers’ affidavits alleged they had personal knowledge that the excessive conditioning caused pain and injury to their daughter. However, their deposition testimony is inconsistent with or contradicts these averments.
{¶26} Courtney Hawk stated she never observed any conditioning used as punishment, and her daughter never received treatment for any injuries sustained at Diva. Felisha Waltz testified her daughter was “mentally tortured.” When asked about physical injuries, Waltz stated she believed excessive exercises could be torture, but that she never observed any of the excessive exercises. Waltz testified that, in the time she spent in the gym, she never observed anything improper regarding her daughter by the coaches, and the issue her daughter has that was caused by the coaches at Diva is that her daughter “struggled with trusting adults.” Shelly Benson testified her daughter had anxiety prior to enrolling at Diva, and she never had any hesitation leaving her daughter at Diva, even though she saw other girls there crying. Benson stated she never observed any inappropriate disciplining of her daughter by the coaches at Diva. The only physical injury Benson noted was when her daughter sprained her ankle during a vault. Dawn Bagnola, who attended practice regularly, testified she had no complaints while she was there about the way the coaches were treating her daughter, she never observed the coaches treat her daughter badly while she was there, and other than her ankle and knee injury (incurred on a landing off the balance beam), her daughter did not injure any other part of her body while at Diva. When asked what conduct of Seefried constituted “torture,” Bagnola stated, “it was just a mental game with him.” Angela Campagna-McGuffin testified she did not witness any of the incidents of extra conditioning, and the physical injuries Macy sustained consisted of an injury to her wrist and a sore back after she fell at a meet.
{¶27} We find the trial court did not abuse its discretion in striking the affidavits of appellant-mothers and appellant-daughters; and in finding appellants could not rely on these affidavits to create a genuine issue of material fact. Appellants’ third assignment of error is overruled.
Summary Judgment Standard
{¶28} Civil Rule 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
{¶29} A trial court should not enter summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co. , 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc. , 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).
{¶30} When reviewing a trial court’s decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer , 90 Ohio St.3d 388, 738 N.E.2d 1243 (2000).
I.
{¶31} In their first assignment of error, appellants contend the trial court committed error in determining the express and implied assumption of risk doctrines applied to bar appellants’ claims.
{¶32} Three standards are used to permit recovery for injuries received during sports and recreation activities: (1) intentional tort; (2) willful or reckless misconduct, and (3) negligence. Marchetti v. Kalish , 53 Ohio St.3d 95, 559 N.E.2d 699 (1990). In this case, appellants do not allege an intentional tort or willful or reckless misconduct.
{¶33} In order to establish a cause of action for negligence, a plaintiff must demonstrate: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) and the plaintiff suffered injury proximately caused by the defendant’s breach of duty. Mussivand v. David , 45 Ohio St.3d 314, 544 N.E.2d 265 (1989). However, when a defendant shows the plaintiff assumed the risk of injury through participating in an inherently dangerous activity, the duty of care is eliminated. Gallagher v. Cleveland Browns Football Co. , 74 Ohio St.3d 427, 659 N.E.2d 1232 (1996).
{¶34} It is well-settled that Ohio law recognizes three separate types of the defense of assumption of the risk: express, primary, and implied. Gentry v. Craycraft , 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116 (2004). Each of these types of assumption of risk provides an independent defense to a negligence claim. Id.
Primary Assumption of the Risk
{¶35} Primary assumption of the risk is a defense of extraordinary strength because it essentially means “that no duty was owed by the defendant to protect the plaintiff from that specific risk,” so a “court must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery.” Gallagher v. Cleveland Browns Football Co. , 74 Ohio St.3d 427, 659 N.E.2d 1232 (1996). A successful primary assumption of the risk defense means that the duty element of negligence is not established as a matter of law. Id. Thus, the defense prevents the plaintiff from making a prima facie case of negligence. Id. The applicability of the primary-assumption-of-the-risk defense presents an issue of law for the court to decide. Id.
{¶36} “When individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional.” Marchetti v. Kalish , 53 Ohio St.3d 95, 559 N.E.2d 699 (1990).
{¶37} The primary assumption of risk doctrine defense relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity, because such risks cannot be eliminated. Simmons v. Quarry Golf Club , 5th Dist. Stark, 2016-Ohio-525, 60 N.E.3d 454. “The types of risks associated with [an] activity are those that are foreseeable and customary risks of the * * * recreational activity.” Pope v. Willey , 12th Dist. Clermont No. CA2004-10-077, 2005-Ohio-4744, 2005 WL 2179317.
{¶38} The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires: (1) the danger is ordinary to the game; (2) it is common knowledge the danger exists; and (3) the injury occurs as a result of the danger during the course of the game. Simmons v. Quarry Golf Club , 5th Dist. Stark, 2016-Ohio-525, 60 N.E.3d 454. “The nature of the sporting activity is highly relevant in defining the duty of care owed by a particular defendant: what constitutes an unreasonable risk, under the circumstances, of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participant’s idea of foreseeable conduct in the course of the game.” Harting v. Dayton Dragons Professional Baseball Club, LLC , 171 Ohio App.3d 319, 2007-Ohio-2100, 870 N.E.2d 766 (2nd Dist.), quoting Thompson v. McNeill , 53 Ohio St.3d 102, 559 N.E.2d 705 (1990).
{¶39} Appellants contend the trial court committed error in applying the primary assumption of the risk doctrine to bar their claims in this case because the activities they cited in their depositions (100 butt scoots, frog jumps, hanging on the bars, excessive conditioning) is not ordinary and inherent to the sport. Appellants cite this Court’s case of Simmons v. Quarry Golf Club in support of their argument. 5th Dist. Stark, 2016-Ohio-525, 60 N.E.3d 454. In Simmons , we held that falling into a large, uncovered drain hole is not one of the foreseeable or inherent risks of the game of golf, nor is it a danger ordinary to or which commonly exists in the game of golf. We noted that while a golfer could foresee a rabbit hole may be on the golf course, a golfer could not foresee an uncovered drain. Id.
{¶40} However, in this case, unlike in Simmons , the exercises, drills, and conditioning alleged by appellants were normal, routine, and customary during high-level competitive gymnastics training. Seefried and Ford described conditioning that is essential to gymnastics, specifically frog jumps and butt scoots, for core, upper body, and leg strength. Samantha Hawk testified the Level 6 and higher gymnasts regularly did three sets of 25 pull-ups as part of conditioning. Courtney Hawk stated her daughter had “rips” on her hands when she first started competitive gymnastics. Jocelynn Benson testified that, at her current gym that she likes, they spend thirty to forty minutes each gymnastics training session conditioning, including doing leg workouts, squats, lunges, push-ups, plank holds, v-ups, running suicides, and running endurance routines. Macy McGuffin testified they sometimes did frog jumps as part of their daily conditioning, usually two sets of 25, and she had no trouble doing 100 of them. Brandi Vetrone stated that she observed the gymnasts doing butt scoots most days during conditioning. The gymnasts described their physical injuries such as callouses, “rips” in hands, ankle injuries, muscle soreness, and knee pain, as being “part of the sport.” A reasonable participant in high-level competitive gymnastics would expect to encounter these risks or hazards.
{¶41} Appellants argue that, because the excessive conditioning is a violation of the Safe Sport Policy of the USAG, the assumption of the risk doctrine does not apply. Appellants cite the affidavit of their expert Michael Jacki (“Jacki”), which states that appellees “engaged in numerous violations of the USAG Safe Sport Policy resulting in abusive behavior towards gymnasts” and the “conduct is not inherent in gymnastic activities.”
{¶42} We first note that not every violation of a sport’s rules meets the negligence standard, and the focus for what constitutes an unreasonable risk of harm under the circumstances involves the examination of both the “rules and customs” associated with the sport that shape the participants’ ideas of foreseeable conduct. Thompson v. McNeill , 53 Ohio St.3d 102, 559 N.E.2d 705 (1990) (emphasis added); see also Kumar v. Sevastos , 8th Dist. Cuyahoga, 2021-Ohio-1885, 174 N.E.3d 398 (“violation of safety rule, by itself, is an insufficient basis by which to attach liability”); Brown v. Harris, 2nd Dist. Montgomery No. 27069, 2017-Ohio-2607, 2017 WL 1592636 (“it is clear that some actions which are outside of the rules or customs of the sport do not create an unreasonable risk of harm”); Kalan v. Fox , 187 Ohio App.3d 687, 2010-Ohio-2951, 933 N.E.2d 337 (11th Dist.) (“even if physical conduct violates a rule of sport, and could potentially subject the violator to internal sanctions prescribed by the sport itself * * * rule infractions, deliberate or unintentional, are almost inevitable * * *”).
{¶43} Further, Felisha Waltz, Dawn Bagnola, and Angela Campagna-McGuffin testified they reported Diva and Seefried to USAG. On June 30, 2020, USAG sent a letter to Seefried stating they “received a report alleging violations of USA Gymnastics Safe Sport policy regarding verbal/emotional misconduct and bullying behaviors.” (Deposition of Seefried, Exhibit 1 to Affidavit of Donald McPherson). In the letter, USAG stated it was ending the informal inquiry, not filing a formal complaint on the safe sport matter, and was administratively closing the matter.
{¶44} The fact that appellants submitted an expert affidavit opining that appellees engaged in violations of the Safe Sport Policy and that their conduct is “not inherent” in gymnastics activities does not create a genuine issue of material fact in this case. Jacki states in the affidavit attached to his report that he reviewed and relied upon, for the opinions stated in the affidavit, “the affidavits of the plaintiffs, and their mothers,” and the depositions of Ford, Seefried, Jose Alvarez, Brian Strickmaker, and Brandi Vetrone. Jacki did not review the depositions of either the appellant-mothers or the appellant-daughters in order to form the opinions in the affidavit. He did review the affidavits of appellants; however, as detailed above, these affidavits were inconsistent and/or conflicted with the depositions of appellants, specifically with regards to the types of injuries suffered and as to what the appellant-mothers actually witnessed. “It is well-established that a court may disregard conclusory allegations in an affidavit unsupported by factual material in the record.” H&H Properties v. Hodkinson , 10th Dist. Franklin No. 10AP-117, 2010-Ohio-5439, 2010 WL 4514775.
{¶45} We find the trial court did not commit error by holding the primary assumption of the risk doctrine applies to bar appellants’ negligence claims against appellees.
Express Assumption of the Risk
{¶46} Appellants argue the trial court committed error in applying the express assumption of the risk doctrine to bar their claims because the release the parents signed only covers “inherent” risks, and the risks in this case are not inherent to gymnastics; further, that the release failed to identify the precise activity which resulted in injury.
{¶47} Each appellant-mother signed a document entitled “Release, Indemnification, and Hold Harmless Agreement” (“Release”) prior to any of the incidents alleged in the complaint. Each appellant-mother in this case admitted in their deposition to signing the Release when registering their appellant-daughter for gymnastics at Diva. Angela Campagna-McGuffin signed the release on June 7, 2016, Dawn Bagnola signed the Release on June 3, 2017, Shelly Benson signed the Release on April 27, 2017, Felisha Waltz signed the Release on June 2, 2017, and Courtney Hawk signed the Release on July 13, 2019.
{¶48} The Release states as follows:
* * * I hereby agree to release and discharge from liability arising from negligence DIVA GYMNASTICS ACADEMY, INC. and its owners, directors, officers, employees, agents, volunteers, participants, and all other persons or entities acting for them (hereinafter collectively referred to as “Releasees”) on behalf of myself and
[199 N.E.3d 1046]
my children * * *, and also agree as follows:
1. I acknowledge that GYMNASTICS involves known and unanticipated risks which could result in physical or emotional injury * * * risks include, but are not limited to, gymnastics, tumbling, cheering, high bars, low bars, beam training activities, exhibitions, demos and open gym, resulting in injuries and other medical conditions from physical activity; and damaged clothing or other property. I understand such risks simply cannot be eliminated, despite the use of safety equipment, without jeopardizing the essential qualities of the activity.
2. I expressly accept and assume all of the risks inherent in this activity or that might have been caused by the negligence of the Releasees. My participation in this activity is purely voluntary and I elect to participate despite the risks. In addition, if at any time I believe that event conditions are unsafe or that I am unable to participate due to physical or mental conditions, then I will immediately discontinue participation.
3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Releasees from any and all claims, demands, or causes of action which are in any way connected with my participation in this activity, or my use of their equipment or facilities, arising from negligence. This release does not apply to claims arising from intentional conduct. * * * By signing this document, I agree that if I am hurt or my property is damaged during my participation in this activity, then I may be found by a court of law to have waived my rights to maintain a lawsuit against the parties being released on the basis of any claim for negligence. I have had sufficient time to read this entire document and, should I choose to do so, consult with legal counsel prior to signing. Also, I understand that this activity might not be made available to me or that the cost to engage in this activity would be significantly greater if I were to choose not to sign this release, and agree that the opportunity to participate at the stated cost in return for the execution of this release is a reasonable bargain. I have read and understood this document and I agree to be bound by its terms.
PARENT OR GUARDIAN ADDITIONAL AGREEMENT
In consideration of [minor’s name] being permitted to participate in this activity, I further agree to indemnify and hold harmless Releasees from any claims alleging negligence which are brought or on behalf of minor or are in any way connected with such participation by [minor].
{¶49} Express assumption of the risk is a separate and independent bar to recovery from the doctrine of primary assumption of the risk. Hague v. Summit Acres Skilled Nursing & Rehabilitation , 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404, 2010 WL 5545386.
{¶50} Valid exculpatory clauses or releases constitute express assumption of risk, and is the same as waiving the right to recover. Anderson v. Ceccardi , 6 Ohio St.3d 110, 451 N.E.2d 780 (1983). A participant in a recreational activity is free to contract with the proprietor of such activity to relieve the proprietor of responsibility for damages or injuries to the participant caused by negligence, except when it is caused by wanton or willful misconduct. Lamb v. University Hospitals Health Care Enterprises, Inc. , 8th Dist. Cuyahoga No. 73144, 1998 WL 474183. Appellants do not allege wanton or willful misconduct in this case. Parents have the authority to bind their minor children to exculpatory agreements in favor of sponsors of sports activities where the cause of action sounds in negligence. Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 696 N.E.2d 201 (1998).
{¶51} For express assumption of the risk to operate as a bar to recovery, the party waiving his or her right to recover must make a conscious choice to accept the consequences of the other party’s negligence. Lamb v. University Hospitals Health Care Enterprises, Inc. , 8th Dist. Cuyahoga No. 73144, 1998 WL 474183. The waiver must be clear and unequivocal. Id. Releases from liability are narrowly construed; however, courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms. Glaspell v. Ohio Edison Co. , 29 Ohio St.3d 44, 505 N.E.2d 264 (1987) ; Hague v. Summit Acres Skilled Nursing & Rehabilitation , 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404, 2010 WL 5545386.
{¶52} In this case, the Release clearly specified the kind of liability released, as the Release contains the word “negligence” multiple times. It also clearly specifies the persons and/or entities being released (Diva, its owners, directors, officers, employees, agents, volunteers, participants, and all other persons or entities acting for them). The language contained in the Release is sufficiently clear and unambiguous such that the express assumption of the risk defense bars recovery. See Geczi v. Lifetime Fitness , 10th Dist. Franklin, 2012-Ohio-2948, 973 N.E.2d 801 (use of word “negligence” and parties being released sufficient for express assumption of risk); Goss v. USA Cycling, Inc. , 8th Dist. Cuyahoga, 2022-Ohio-2500, 193 N.E.3d 599 (use of words “release” and “negligence” sufficient for express assumption of risk); Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc. , 5th Dist. Fairfield No. 2011-CA-00027, 2011-Ohio-6465, 2011 WL 6306552.
{¶53} Appellants contend since the word “conditioning” does not appear in the Release, their claims are not barred. However, appellants expressly assumed the risk for “gymnastics, tumbling, cheering, high bars, low bars, beam training, activities, exhibitions, demos and open gym.” Further, the language in the Release states that “risks include, but are not limited to,” the list above. In the second paragraph of the Release, appellants expressly “assume[d] all of the risk inherent in this activity.” By signing the Release, appellants acknowledged gymnastics involves “known and unanticipated risks which could result in physical or emotional injury.”
{¶54} Appellants additionally argue they did not expressly assume liability because the risks suffered by appellants during “excessive conditioning” are not inherent risks within the sport of gymnastics. As noted above, the Release specifically includes “known and unanticipated risks,” including risks that “could result in physical or emotional injury.” Further, as detailed above, the exercises, drills, and conditioning alleged by appellants were normal, routine, and customary during high-level competitive gymnastics training.
{¶55} We find the language contained in the Release is sufficiently clear and unambiguous. Appellants expressly assumed the risks they describe in their depositions. Accordingly, the express assumption of the risk defense is a separate and independent bar to recovery in this case.
{¶56} Appellants’ first assignment of error is overruled.
II.
{¶57} In their second assignment of error, appellants contend the trial court committed error in granting summary judgment by finding there was no evidence of physical injury caused by appellees. Appellants argue the trial court improperly focused only on the lack of medical treatment in its analysis and that, even if appellants received no medical treatment for their injuries, they could still produce evidence of physical injury.
{¶58} As an alternative and independent basis for granting summary judgment, the trial court found appellants could not meet the third part of the negligence test, i.e., that appellants suffered injury proximately caused by appellees’ breach of duty. Appellants claim the trial court based its decision solely on the lack of medical treatment. However, the trial court did not base its decision solely on the lack of medical treatment of appellants; rather, the trial court based its decision on lack of injury proximately caused by appellees. The trial court specifically stated, “the deposition testimony of appellants contradicts their claims that they suffered physical injury, and appellants have provided no evidence that they suffered a physical injury as a result of appellees’ conduct.”
{¶59} Appellants argue a plaintiff can recover damages for emotional distress and mental anguish associated with a contemporaneous physical injury. However, the cases cited by appellants in support of this argument are cases where the claim at issue was negligent infliction of emotional distress, not ordinary negligence. Paugh v. Hanks , 6 Ohio St.3d 72, 451 N.E.2d 759 (1983) (“a cause of action may be stated for negligent infliction of serious emotional distress without the manifestation of a resulting physical injury” if the emotional injuries are severe, debilitating, and reasonably foreseeable); Heiner v. Moretuzzo , 73 Ohio St.3d 80, 652 N.E.2d 664 (1995) (Ohio does not recognize a claim for negligent infliction of emotional distress where the distress is caused by the plaintiff’s fear of a non-existent physical peril); Loudin v. Radiology & Imaging Services, Inc. , 128 Ohio St.3d 555, 2011-Ohio-1817, 948 N.E.2d 944 (courts have allowed recovery for emotional distress accompanied by injury); see also C.R. Withem Enterprises v. Maley , 5th Dist. Fairfield No. 01 CA 54, 2002-Ohio-5056, 2002 WL 31116720 (affirming trial court’s determination that compensatory damages for mental anguish must accompany a physical injury and must stem from a negligent act).
{¶60} In a negligent infliction of emotional distress claim, a plaintiff can recover for negligently inflicted emotional and psychiatric injuries accompanied by contemporaneous physical injury, and may include damages for mental anguish, emotional distress, anxiety, grief, or loss. Binns v. Fredendall , 32 Ohio St.3d 244, 513 N.E.2d 278 (1987). Negligent infliction of emotional distress is a separate and distinct cause of action, requiring different elements than an ordinary negligence claim. In their third amended complaint, appellants deleted/dismissed their claims of intentional and negligent infliction of emotional distress. During their depositions, the harm described by appellants included struggling to trust adults, general pressure, nervousness from high expectations, being pushed past their limit, anxiety, treating them with disrespect, being “too much,” and crying. Appellant-daughters did not identify any physical injury that was proximately caused by appellees’ conduct. Rather, the physical injuries they described were legitimate sporting injuries inherent to high-level gymnastics training, and were not caused by appellees’ conduct. Appellant-mothers did not witness any physical injuries proximately caused by appellees’ conduct.
{¶61} Appellants contend Jacki’s affidavit is sufficient to create a genuine issue of material fact as to physical injury caused by appellees’ conduct because Jacki opines that, “as a direct and proximate result of this failure by the Defendants to comply and oversee, the Plaintiffs * * * were subjected to unreasonable and unnecessary over-conditioning that would cause girls their age physical discomfort as well as unnecessary injury and emotional distress.” However, as detailed above, Jacki did not review the depositions of appellants in rendering his opinion. He only reviewed appellants’ affidavits, which contained contradictory information about the injuries appellants’ claimed in their affidavits.
{¶62} We find the trial court did not commit error in determining appellants could not meet the third part of the negligence test, i.e., that appellants suffered injury proximately caused by appellees’ breach of duty. Appellants’ second assignment of error is overruled.
{¶63} Based on the foregoing, appellants’ assignments of error are overruled.
{¶64} The April 5, 2022 judgment entry of the Stark County Court of Common Pleas is affirmed.
Wise, John, J., and Baldwin, J., concur
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Ohio Appellate court upholds release for injury from bicycle race reviewing the steps needed to analysis the release by the courts.
Posted: May 22, 2023 Filed under: Cycling, Ohio, Racing, Release (pre-injury contract not to sue) | Tags: Bicycle Race, Bicycle Racing, Case Western Reserve University, Greater Cleveland Sports Commission, Ohio, Release, USA Cycling, Waiver Leave a commentOhio is a state that supports the use of a release and this is a great decision to show you how to make sure your release is viable under Ohio law.
Goss v. USA Cycling, Inc., 193 N.E.3d 599 (Ohio App. 2022)
State: Ohio, Court of Appeals of Ohio, Eighth District, Cuyahoga County
Plaintiff: Heather Goss
Defendant: USA Cycling, Inc., et al. (USA Cycling, Inc. (“USAC”), Case Western Reserve University (“CWRU”), and Greater Cleveland Sports Commission (the “GCSC”))
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: For Defendants
Year: 2022
Summary
The court upheld the USA cycling release for the claims of an injured bicycle racer. The plaintiff argued the release did not cover the claims of the plaintiff and that releases should be void because the use of a release allows a business owner to be lax in its safety concerns for patrons and guests. The court found neither of the plaintiff’s arguments to be valid.
Facts
In 2016, the GCSC organized NEOCycle, a multi-day cycling festival featuring criterium races, where cyclists race numerous laps around a closed-loop race. The GCSC partnered with CWRU Cycling, a student-led cycling club, to organize the criterium races sanctioned by USAC.
Individuals involved in the logistical organization of the event included GCSC’s operation manager, Matthew Sajna (“Sajna”); CWRU staff-advisor, Ryan Pierce (“Pierce”); and CWRU students, Henry Bermet (“Bermet”), Jasper Stallings (“Stallings”), and Matthew Swartout (“Swartout”). With the exception of Swartout, the event organizers had minimal experience in designing criterium-race courses. More significantly, the event organizers did not receive specialized training in criterium-race course safety or design prior to the 2016 event. Id. Despite their lack of training, however, members of the CWRU Cycling club were directly involved in the design of the race course and the measures taken to ensure safe racing conditions.
As part of the registration process for the NEOCycle event, Goss executed a release form titled, “2016 USA Cycling Event Release Form AND One Day License Application” (the “Event Release”).
Goss had previously executed an agreement with USAC on April 14, 2016, in order to obtain a license from USAC to participate in USAC-sanctioned events in 2016. This agreement, titled “Acknowledgment of Risk, Release of Liability, Indemnification Agreement and Covenant Not to Sue” (the “Licensing Release”), contained substantially similar language to that set forth in the Event Release.
On September 10, 2016, Goss participated in two separate criterium races at the NEOCycle event. In the morning event, Goss completed a 30-minute ride. Later that afternoon, Goss returned to the same course to participate in her second race. On the final lap of the second race, a cyclist in front of Goss unexpectedly fell on the final turn of the race. The crash caused many cyclists, including Goss, to lose control of their bicycles. Ultimately, Goss crashed into a barrier, causing injuries to her neck, thyroid, larynx, and trachea.
On April 2, 2020, Goss filed a civil complaint against the appellees, setting forth separate causes of action for negligence. In pertinent part, Goss alleged that USAC, CWRU, and GCSC each breached their duty to “exercise ordinary and reasonable care for the safety of [Goss]; to maintain said race course in a reasonably safe condition; to give warning of latent or concealed perils thereon, of which [they] knew or should have known; and not to expose such persons to unreasonable or foreseeable risk of severe bodily harm and injury.” Regarding the course conditions that allegedly led to Goss’s injuries, Goss asserted that “the race course design did not conform to USAC’s own safety standards, insomuch as there was insufficient distance from the race course’s final corner to the finish area. This insufficient distance caused racers to begin their ‘final sprint’ to the finish line before the final turn, thereby greatly increasing the chance for slide-outs and collisions.”
In the first assignment of error, Goss argues the trial court erred in finding that negligence as to race course safety and design was within the contemplation of the parties at the time the event release was executed. Consistent with the arguments posed before the trial court, Goss contends the Event Release was “too ambiguous or general to effectively waive the negligent conduct of the appellees.”
Analysis: making sense of the law based on these facts.
As in most cases the court started its analysis with a review of negligence in the state. Under Ohio law, to prove negligence the plaintiff must prove:
To establish a negligence claim, the plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty, and that the plaintiff’s injury proximately resulted from the defendant’s breach of duty.
This four-part test is the same as in the vast majority of other states that define negligence. The court then reviewed the Ohio law claimed by the defendants to stop the claims of the plaintiff.
It is well-established that Ohio law recognizes three types of assumption of risk as defenses to negligence: express, primary, and implied or secondary. Pertinent to this case, express assumption of the risk is applicable when the parties expressly agree to release liability. For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence
The requirement for a conscious choice to be made by the plaintiff is a different way of looking at the requirement that the release must clearly express the intent of the parties.
It follows that in order for a conscious acceptance to be made, an agreement purporting to constitute an express assumption of risk must state a clear and unambiguous intent to release the party from liability for its negligence.”
A conscious choice in Ohio, when interpreting a release, means the release must be written to show the person signing the release understand that the person is giving up certain legal rights and cannot sue for their injuries.
The court then quoted the classic statement that releases are not favored under the law of the state. This means nothing legally, it just reinforces the legal requirement that the burden to prove the release is valid is on the writer of the release or the defendant.
Releases from liability for future tortious conduct are generally not favored by the law and are narrowly construed. Nonetheless, “courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.
The court then explains this “not favored” status further as the release must be written in a way that it is clearly understood by the plaintiff as to its purpose, the plaintiff is giving up his or her right to sue. If the release is ambiguous, if the language of the release does not clearly show to the plaintiff they are giving up their right to sue, then the release language is defined as ambiguous and possibly void.
On the other hand, where the language of the release is ambiguous or too general, courts have held that the intent of the parties is a factual matter for the jury. “The pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the proprietor is to be relieved from liability for its own negligence.”
If the release, under Ohio law, is ambiguous, then the jury must decide if the plaintiff understood the purpose of the release. This is different from most states where an ambiguous release is void.
When the language of the release is clear, then the release is a matter of law. That means the release can be interpreted by the court, the case does not need to go to a jury.
When a writing is clear and unambiguous, the interpretation is a question of law. “Ambiguity exists only when a provision at issue is susceptible of more than one reasonable interpretation.”. Moreover, we must read the clauses as a whole, not piecemeal.
Then the release is interpreted by the court. Courts must review contracts, and releases, by giving words their ordinary meaning. Does the document state in a way that is understood the intent and purpose of the document.
In interpreting contracts, “[c]ourts must give common words their ordinary meaning unless manifest absurdity would result or some other meaning is clearly evidenced from the face or overall contents of the written instrument. And, although not always explicitly referenced or relied on, the rules of grammar are elemental whenever reading and understanding any writing, especially a contract.
The court then reviewed the plaintiff’s arguments on why the release did not meet the requirements under Ohio law because the course was designed badly.
…that (1) “the race planners were students with no training, knowledge or experience in race course design and safety”; or (2) that “the student planners would ignore the recommendations of [USAC].” Thus, Goss contends that “because of the lack of any specificity regarding [the term] negligence in the Event Release,” “the lower court erred when it failed to find that reasonable minds could differ as to whether the unsafe design of the racecourse by uneducated, untrained and inexperienced students was within the contemplation of the parties * * * at the time of the execution of the Event Release.
It always seems to be a stretch, and in most cases, it is, unless the court is going to rule against the defendant, that the facts argued by the plaintiff on what happened can affect the legal requirements of a release. However, the plaintiff tried to show the things that happened to the plaintiff were so bad or the actions of the defendant were so bad that the release should be void. Injuries to the plaintiff do not affect the legal issues of whether the release is valid. Actions by the plaintiff only are an issue if the actions rise to the level those actions were grossly, willfully, or wantonly negligent in most states.
Here the court found the release did not contain any missing statements or errors that would provide a hole the plaintiff could use to argue the course design was not covered by the release.
Moreover, the Event Release executed in this case did not include an exception that would permit Goss to pursue a claim for damages arising from the appellees’ sole negligence. To the contrary, the Event Release directly contemplates the appellees’ own negligence and required Goss to acknowledge that she agreed “to waive, release, discharge, hold harmless, and promise to indemnify and not to sue” the appellees for damages arising from said negligence.
The plaintiff had argued that the release should be void because of several other arguments made in other legal decisions where the release was found to be void. However, those arguments were based on the idea that the plaintiff signing the release was not informed the release covered the negligence of the defendant. The language in those other releases the court argued
…the Event Release contained the words “release” and “negligence”; and is sufficiently clear and unambiguous as to both the type of liability being released (negligence) and the persons being released (event organizers). Here, Goss released the event sponsors and organizers from all claims arising from their own negligence to the maximum extent permitted by law, including any and all damages that may be sustained by Goss directly or indirectly in connection with, or arising out of, her participation in the cycling event. In this regard, the contract expressly stated that the release applied to “all races and activities entered at the event,” and further required Goss to acknowledge that “cycling is an inherently dangerous sport.” By signing the Event Release, Goss made the conscious choice to accept that she “fully assume[d] the risks associated with such participation,” including (1) the dangers of collisions with other riders; (2) the dangers arising from surface hazards, equipment failure, inadequate safety equipment, or the releasees’ own negligence; and (3) the possibility of a serious physical injury. Considering these terms collectively and in light of what an ordinary prudent person would understand, it is clear that the appellees were to be relieved from liability for any negligence claims relating to their organization of the cycling event, including pertinent hazards and the design of the racecourse.
The release the plaintiff signed expressly reviewed the possible risks that Goss received or argued in her case. This is another point for writing a release so the plaintiff is put on notice of the actual risks they are facing in the activity.
The court found the release specifically notified the plaintiff of the risks she may encounter in the race.
Under the doctrine of express assumption of risk, the terms of the Event Release prohibited Goss from advancing claims of negligence against the appellees. Accordingly, summary judgment in favor of the appellees was warranted as a matter of law.
The plaintiff then argued that releases should be void in Ohio because they took away the needed incentive to make sure that businesses would keep their activities safe.
In the second assignment of error, Goss argues the trial court erred by failing to adopt her argument that Ohio should void broad, nonspecific, ambiguous waivers of liability as a matter of public policy. Goss contends that by allowing a premises owner or occupier to obtain broad waivers of their own liability, an important incentive for the premises owners to maintain their premises in a reasonably safe condition would be removed, “thus forcing the public to bear the cost of resulting injuries caused by the [owner or occupier’s] own negligence.”
The court went back to the basics of release law. Releases in Ohio are valid unless they are against public policy, unconscionable, vague or ambiguous.
Generally, in Ohio, exculpatory clauses, which relieve a party from its own negligence, are not against public policy despite being disfavored in the law. Thus, “limiting or exculpatory language in a contract will be enforced unless the language is against important public policy concerns, unconscionable, or vague and ambiguous.”
Most courts have looked at this issue and held that recreation, like bicycle racing, is not an issue protected such that a release covering it would be void as against public policy.
In this case, the exculpatory clause released the event organizers from liability for negligence claims arising from the cycling event. However, the Event Release did not authorize the appellees to exercise no care whatsoever. Nor did it permit the appellees to engage in willful or wanton misconduct. Given these remaining, meaningful protections afforded to the public, we find no basis to adopt a position that would effectively overturn the well-established position of this court that “a participant in a recreational activity is free to contract with the proprietor of such activity as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor except when caused by wanton or wilful misconduct.
This court found the plaintiff’s arguments were not valid because the release would not stop claims if the plaintiff could prove the actions of the defendant were unsafe to a large extent. The release would not stop claims that the actions of the defendant were wanton or wilful. Since that option was always available under Ohio law, the release was not void as against public policy.
In an interesting aside, the court looked at the validity of the release in question as interpreted by other courts. However, this was done in a footnote, not in the main argument of the case.
Although not specifically considered in the state of Ohio, the language contained in the Event Release generated by USAC has been considered nationally and found to be an adequate and enforceable release of liability where such releases are permissible.
The court upheld the lower court finding the release was valid and stopped the claims of the plaintiff.
So Now What?
First, this is an important look at the issues facing releases under Ohio law. This court simply examined the claims of the plaintiff and showed how those claims were not met because the release met the requirements needed to be a valid release in Ohio.
Second, the court pointed out an important point that many releases miss. The release is also an assumption of the risk document. In some states releases are termed assumption of the risk documents. To be an assumption of the risk document and stop claims, the release must list the possible risks the plaintiff might encounter and the plaintiff must agree to assume those risks.
Your release must include some of the risks that the plaintiff may encounter on the trip. I always suggest that the accidents and injuries that happen on every trip be listed. I also suggest the odd accidents or injuries that may only happen on your activity as well as the worse possible accidents that may result in paralysis or death.
For more cases looking at releases as interpreted by Ohio law see:
Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
For more cases looking at releases and public policy see:
Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
For more cases reviewing releases and bicycle racing see:
A decision concerning bicycle race clarifies Illinois release law.
PA court upholds release in bicycle race.
Release and proof of knowledge stop claim from bicycle racer.
Release for bicycle tour wins on appeal but barely
Release stops one of the first lawsuits over bicycle racing.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Outdoor Recreation Insurance, Risk Management, and Law
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Goss v. USA Cycling, Inc., 193 N.E.3d 599 (Ohio App. 2022)
Posted: May 22, 2023 Filed under: Cycling, Ohio, Racing, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Bicycle Race, Bicycle Racing, Case Western Reserve, Cycling Race, foreseeable risk, Greater Cleveland Sports Commission, Negligence, Ohio, Public Policy, Release, USA Cycling, Wanton, Wilful Leave a commentTo Read an Analysis of this decision see
Ohio Appellate Court upholds release for injury from bicycle race reviewing the steps needed to analyze the release by the courts.
Goss v. USA Cycling, Inc., 193 N.E.3d 599 (Ohio App. 2022)
193 N.E.3d 599
Heather GOSS, Plaintiff-Appellant,
v.
USA CYCLING, INC., et al., Defendants-Appellees.
No. 111084
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
RELEASED AND JOURNALIZED: July 21, 2022
Barkan Meizlish DeRose Cox, LLP, Sanford A. Meizlish, and Jason C. Cox, Columbus, for appellant.
Marshall Dennehey Warner Coleman & Goggin, David J. Fagnilli, and Jillian L. Dinehart, Cleveland, for appellee USA Cycling, Inc.
Ogletree Deakins, Nash, Smoak & Stewart, P.C., John Gerak, and Amanda T. Quan, Cleveland, for appellee Case Western Reserve University.
Gallagher Sharp LLP, and Joseph Monroe, II, Cleveland, for appellee Greater Cleveland Sports Commission.
JOURNAL ENTRY AND OPINION
EILEEN T. GALLAGHER, J.:
{¶ 1} Plaintiff-appellant, Heather Goss (“Goss”), appeals from the trial court’s judgment granting summary judgment in favor of defendant-appellees, USA Cycling, Inc. (“USAC”), Case Western Reserve University (“CWRU”), and Greater Cleveland Sports Commission (the “GCSC”) (collectively the “appellees”). Goss raises the following assignments of error for review:
1. The trial court erred in finding that negligence as to racecourse safety and design was within the contemplation of the appellant and the appellees when the event release was executed.
2. The trial court erred by failing to address and adopt appellant’s argument that Ohio should void broad, nonspecific, ambiguous waivers of liability as a matter of public policy.
{¶ 2} After careful review of the record and relevant case law, we affirm the trial court’s judgment.
I. Procedural and Factual History
{¶ 3} In 2016, the GCSC organized NEOCycle, a multi-day cycling festival featuring criterium races, where cyclists race numerous laps around a closed-loop race. The GCSC partnered with CWRU Cycling, a student-led cycling club, to organize the criterium races sanctioned by USAC.
{¶ 4} Individuals involved in the logistical organization of the event included GCSC’s operation manager, Matthew Sajna (“Sajna”); CWRU staff-advisor, Ryan Pierce (“Pierce”); and CWRU students, Henry Bermet (“Bermet”), Jasper Stallings (“Stallings”), and Matthew Swartout (“Swartout”). With the exception of Swartout, the event organizers had minimal experience in designing criterium-race courses. (Pierce depo. at 46-48; Stallings depo. at 23-25, 43; Bermet depo. at 13, 21-22; Swartout depo. at 23-24.) More significantly, the event organizers did not receive specialized training in criterium-race course safety or design prior to the 2016 event. Id. Despite their lack of training, however, members of the CWRU Cycling club were directly involved in the design of the race course and the measures taken to ensure safe racing conditions.
{¶ 5} As part of the registration process for the NEOCycle event, Goss executed a release form titled, “2016 USA Cycling Event Release Form AND One Day License Application” (the “Event Release”). The Event Release provided, in pertinent part:
I acknowledge that by signing this document, I am assuming risks, agreeing to indemnify, not to sue and release from liability the organizer of this event, USA Cycling, Inc. * * * and their respective agents, insurers, employees, volunteers, members, clubs, officials, sponsors, event directors, local associations, and affiliates (collectively “Releasees”), and that I am giving up substantial legal rights. This release is a contract with legal and binding consequences and it applies to all races and activities entered at the event, regardless whether or not listed above. I have read it carefully before signing and I understand what it means and what I am agreeing to by signing.
I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN THIS EVENT * * * and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation: * * * the dangers of collision with pedestrians, vehicles, or other riders, and fixed and moving objects; the dangers arising from surface hazards, including pot holes, equipment failure, inadequate safety equipment, * * * THE RELEASEES’ OWN NEGLIGENCE, the negligence of others and weather conditions; and the possibility of serious physical and/or mental trauma or injury, or death associated with the event.
* * * I HEARBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIDY AND NOT SUE the Releasees * * * FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE TO THE MAXIMUM EXTENT PERMITTED BY LAW, which I have or may hereafter accrue to me, and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event[.]
* * *
I agree, for myself and my successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert a claim contrary to what I have agreed to in this contract, the claiming party shall be liable for the expenses (including legal fees) incurred by the Releasees in defending the claims.
(Emphasis sic.) Goss had previously executed an agreement with USAC on April 14, 2016, in order to obtain a license from USAC to participate in USAC-sanctioned events in 2016. This agreement, titled “Acknowledgment of Risk, Release of Liability, Indemnification Agreement and Covenant Not to Sue” (the “Licensing Release”), contained substantially similar language to that set forth in the Event Release.
{¶ 6} On September 10, 2016, Goss participated in two separate criterium races at the NEOCycle event. In the morning event, Goss completed a 30-minute ride. Later that afternoon, Goss returned to the same course to participate in her second race. On the final lap of the second race, a cyclist in front of Goss unexpectedly fell on the final turn of the race. The crash caused many cyclists, including Goss, to lose control of their bicycles. Ultimately, Goss crashed into a barrier, causing injuries to her neck, thyroid, larynx, and trachea. (Goss depo. 117-118.)
{¶ 7} On April 2, 2020, Goss filed a civil complaint against the appellees, setting forth separate causes of action for negligence. In pertinent part, Goss alleged that USAC, CWRU, and GCSC each breached their duty to “exercise ordinary and reasonable care for the safety of [Goss]; to maintain said race course in a reasonably safe condition; to give warning of latent or concealed perils thereon, of which [they] knew or should have known; and not to expose such persons to unreasonable or foreseeable risk of severe bodily harm and injury.” Regarding the course conditions that allegedly led to Goss’s injuries, Goss asserted that “the race course design did not conform to USAC’s own safety standards, insomuch as there was insufficient distance from the race course’s final corner to the finish area. This insufficient distance caused racers to begin their ‘final sprint’ to the finish line before the final turn, thereby greatly increasing the chance for slide-outs and collisions.”
{¶ 8} On July 23, 2021, USAC filed a motion for summary judgment, arguing that Goss released USAC from negligence claims relating to her injuries sustained during the NEOCycle criterium race by executing two valid and binding waivers of liability. USAC asserted that the Event Release and the Licensing Release were each “clear and unambiguous as to the type of liability being released (i.e. negligence claims) and the persons being released (i.e. event organizers).” Alternatively, USAC argued that even if Goss had not expressly assumed the risks associated with the sporting event, the common-law doctrine of primary assumption of the risk required Goss’s claim to fail. In support of its motion for summary judgment, USAC attached copies of the Event Release and the Licensing Release, as well as deposition excerpts from Sajna, Stallings, Pierce, and Goss.
{¶ 9} On the same day, CWRU and GCSC filed a joint motion for summary judgment, arguing that “Goss’s negligence claims are barred as a matter of law because Goss signed a valid release waiving all claims, including negligence claims, against CWRU and GCSC.” In support of their joint motion for summary judgment, CWRU and GCSC attached copies of the Event Release and Licensing Release, as well as the deposition testimony of Sajna, Pierce, Stallings, Bermet, and Goss.
{¶ 10} On August 2021, Goss filed a brief in opposition to summary judgment, arguing that because the language set forth in the Event Release was “so general and ambiguous, reasonable minds could conclude that negligence as to the race course safety and design was not within the contemplation of the [parties] when the Event Release was executed.” Goss asserted that at the time she signed the Event Release she “could not have comprehended the student planners’ lack of training and experience in race-course safety,” or that “the actual race-course safety would be so far beneath USAC’s safety standards.” Alternatively, Goss argued that the broad waiver of liability should be deemed void as a matter of public policy.
{¶ 11} In support of her brief in opposition, Goss attached a copy of the Event Release, as well as deposition excerpts from Sajna, Pierce, Goss, Bermet, Stallings, and Swartout. In addition, Goss attached a copy of the affidavit and report submitted by plaintiff’s expert, Douglas Shapiro (“Shapiro”). Relevant to this appeal, Shapiro opined as follows:
Based on my 40 plus years of cycling experience, both as a bike racer, recreational cyclist and bicycle safety expert, it is my opinion the defendants’ conduct was below the acceptable standard of care required for safe race-course design and rider safety resulting in dangerous conditions not commonly associated with ordinary risks involved in the sport of cycling. The deviations from the standard of care were the proximate cause of Ms. Goss’s crash and injuries.
(Plaintiff’s exhibit G, ¶ 16.)
{¶ 12} On November 18, 2021, the trial court granted summary judgment in favor of the appellees, stating, in pertinent part:
The court finds that Plaintiff executed a valid and binding pre-injury waiver, releasing defendant[s] of liability. Summary judgment is therefore entered in favor of defendant[s] and against Plaintiff.
{¶ 13} Goss now appeals from the trial court’s judgment.
II. Law and Analysis
A. Negligence Safety and Design
{¶ 14} In the first assignment of error, Goss argues the trial court erred in finding that negligence as to race course safety and design was within the contemplation of the parties at the time the event release was executed. Consistent with the arguments posed before the trial court, Goss contends the Event Release was “too ambiguous or general to effectively waive the negligent conduct of the appellees.”
1. Standard of Review
{¶ 15} We review an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996) ; Zemcik v. LaPine Truck Sales & Equip. Co. , 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998).
{¶ 16} Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. , 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).
{¶ 17} Once the moving party satisfies its burden, the nonmoving party “may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E) ; Mootispaw v. Eckstein , 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).
2. Negligence
{¶ 18} To establish a negligence claim, the plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty, and that the plaintiff’s injury proximately resulted from the defendant’s breach of duty. Everett v. Parma Hts. , 8th Dist. Cuyahoga No. 99611, 2013-Ohio-5314, 2013 WL 6408693, ¶ 15.
{¶ 19} It is well-established that Ohio law recognizes three types of assumption of risk as defenses to negligence: express, primary, and implied or secondary. Cameron v. Univ. of Toledo , 2018-Ohio-979, 98 N.E.3d 305, ¶ 41 (10th Dist.), citing Schnetz v. Ohio Dept. of Rehab. & Corr. , 195 Ohio App.3d 207, 2011-Ohio-3927, 959 N.E.2d 554, ¶ 21 (10th Dist.), citing Crace v. Kent State Univ. , 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, ¶ 10 (10th Dist.). Pertinent to this case, express assumption of the risk is applicable when the parties expressly agree to release liability. Crace at ¶ 11, citing Ballinger v. Leaniz Roofing, Ltd. , 10th Dist. Franklin No. 07AP-696, 2008-Ohio-1421, 2008 WL 802722, ¶ 6.
{¶ 20} “For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence.” State Farm Fire & Cas. Co. v. Scandinavian Health Spa, Inc., 104 Ohio App.3d 582, 586, 662 N.E.2d 890 (1st Dist.1995), citing Anderson v. Ceccardi , 6 Ohio St.3d 110, 114, 451 N.E.2d 780 (1983). “It follows that in order for a conscious acceptance to be made, an agreement purporting to constitute an express assumption of risk must state a clear and unambiguous intent to release the party from liability for its negligence.” Holmes v. Health & Tennis Corp. of Am. , 103 Ohio App.3d 364, 367, 659 N.E.2d 812 (1st Dist.1995), citing Tanker v. N. Crest Equestrian Ctr. , 86 Ohio App.3d 522, 621 N.E.2d 589 (9th Dist.1993).
{¶ 21} “Releases from liability for future tortious conduct are generally not favored by the law and are narrowly construed.” Reo v. Allegiance Admrs. LLC. , 11th Dist. Lake No. 2017-L-112, 2018-Ohio-2464, 2018 WL 3110756, ¶ 20, quoting Brown-Spurgeon v. Paul Davis Sys. of Tri-State Area, Inc. , 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, 2013 WL 1883214, ¶ 50, citing Glaspell v. Ohio Edison Co. , 29 Ohio St.3d 44, 46-47, 505 N.E.2d 264 (1987).
{¶ 22} Nonetheless, “courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.” Brown-Spurgeon at ¶ 51 ; see also
Glaspell at ¶ 46-47 (A negligence claim is barred by the plaintiff’s valid execution of a release of liability of future tortious conduct.); Anderson at 114, 451 N.E.2d 780 (Valid exculpatory clauses or releases constitute express assumptions of risk.); Lamb v. University Hosp. Health Care Ents., Inc. , 8th Dist. Cuyahoga No. 73144, 1998 WL 474183, 1998 Ohio App. LEXIS 3740 (Aug. 13, 1998) (clause including word “release” and “negligence” as well as specifically identifying persons released from liability sufficiently clear to release fitness club from liability for injuries); Swartzentruber v. Wee-K Corp. , 117 Ohio App.3d 420, 424-427, 690 N.E.2d 941 (4th Dist.1997) (language releasing livery stable from “any and all claims” that arose out of “any and all personal injuries” was sufficiently clear and specific to bar injured horseback rider’s negligence claims).
{¶ 23} On the other hand, where the language of the release is ambiguous or too general, courts have held that the intent of the parties is a factual matter for the jury. Hague v. Summit Acres Skilled Nursing & Rehab ., 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404, 2010 WL 5545386, ¶ 21. “The pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the proprietor is to be relieved from liability for its own negligence.” Id. at ¶ 22.
{¶ 24} When a writing is clear and unambiguous, the interpretation is a question of law. Pruitt v. Strong Style Fitness , 8th Dist. Cuyahoga No. 96332, 2011-Ohio-5272, 2011 WL 4842485, ¶ 8, citing Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). “Ambiguity exists only when a provision at issue is susceptible of more than one reasonable interpretation.” Lager v. Miller-Gonzalez , 120 Ohio St.3d 47, 2008-Ohio-4838, 896 N.E.2d 666, ¶ 16. Moreover, we must read the clauses as a whole, not piecemeal. Gomolka v. State Auto. Mut. Ins. Co. , 70 Ohio St.2d 166, 172, 436 N.E.2d 1347 (1982).
{¶ 25} In interpreting contracts, “[c]ourts must give common words their ordinary meaning unless manifest absurdity would result or some other meaning is clearly evidenced from the face or overall contents of the written instrument.” JP Morgan Chase Bank, Natl. Assn. v. Heckler , 3d Dist. Union No. 14-12-26, 2013-Ohio-2388, 2013 WL 2639137, ¶ 20, citing In re All Kelley & Ferraro Asbestos Cases , 104 Ohio St.3d 605, 2004-Ohio-7104, 821 N.E.2d 159, ¶ 29. And, although not always explicitly referenced or relied on, the rules of grammar are elemental whenever reading and understanding any writing, especially a contract. See
Gahanna v. Ohio Mun. Joint Self-Ins. Pool , 10th Dist., 168 N.E.3d 58, 2021-Ohio-445, ¶ 12 (“The court must read words and phrases in context and apply the rules of grammar and common usage.”).
{¶ 26} On appeal, Goss reiterates her position that the Event Release was “too ambiguous or general to effectively waive the negligent conduct of the appellees” because it did not expressly notify her that (1) “the race planners were students with no training, knowledge or experience in race course design and safety”; or (2) that “the student planners would ignore the recommendations of [USAC].” Thus, Goss contends that “because of the lack of any specificity regarding [the term] negligence in the Event Release,” “the lower court erred when it failed to find that reasonable minds could differ as to whether the unsafe design of the racecourse by uneducated, untrained and inexperienced students was within the contemplation of the parties * * * at the time of the execution of the Event Release.”
{¶ 27} In support of her position that the Event Release was so general that it included claims that were not within the contemplation of the parties when it was executed, Goss relies on the Twelfth District’s decision in Brown-Spurgeon , 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, 2013 WL 1883214, and the Seventh District’s decision in Hague , 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404.
{¶ 28} In Brown-Spurgeon , plaintiffs Kristina Brown-Spurgeon and Andrew Spurgeon hired defendant Paul Davis Systems of Tri-State Area, Inc. (“PDS”) to complete home repairs after their home was flooded in May 2010. At the time PDS was hired, Kristina signed a “Work Authorization” form that contained an exculpatory clause. The form provided that PDS would not be liable for theft and damages arising out of the services performed pursuant to the contract. However, the clause did allow liability for actions that arise out of the PDS’s sole negligence.
{¶ 29} Once the repair-contract was executed, PDS hired Phil Griffin, the owner of Renovated Solutions, to perform a portion of the remodeling and restoration work. PDS and Griffin signed a “Tradesperson Agreement,” which provided that Griffin would conduct background checks on all persons working on jobs obtained through PDS. Despite these safeguards, however, it was discovered that a repairman hired by Griffin stole prescription drugs, jewelry, electronics, and other personal property from the plaintiffs’ home during the repair process. The value of the stolen items exceeded $18,000. {¶ 30} In May 2011, the plaintiffs filed a lawsuit against PDS and Griffin, setting forth causes of action for vicarious liability, general negligence, and negligent hiring and supervision. Subsequently, the trial court granted summary judgment in favor of PDS and Griffin on each claim.
{¶ 31} On appeal, the Twelfth District reversed the trial court’s judgment in part, finding that there remained genuine issues of material fact as to the plaintiffs’ vicarious liability and general negligence claims against PDS, and the general negligence and negligent hiring and supervision claims against Griffin. Relevant to this appeal, the court determined that the exculpatory clause contained in the “Work Authorization” form did not exempt PDS from liability because (1) the theft involved “willful or wanton” conduct, and (2) the exculpatory clause expressly contained an exception for damages that arise directly from the “contractor’s sole negligence.” Brown-Spurgeon , 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, at ¶ 54-55.
{¶ 32} In Hague , plaintiffs Ruth and Robert Hague filed a negligence and loss of consortium action against Summit Acres and Summit Acres Skilled Nursing & Rehabilitation after Ruth was injured on a treadmill at Summit Acres’ fitness center. Ultimately, the trial court granted summary judgment in favor of the defendants, finding the negligence claim must be dismissed as a matter of law because Ruth executed a release from liability form. The release provided, in relevant part:
I agree that by using the fitness center, I am responsible for my actions. I agree that summit acres, inc. Is [sic] not liable for any injuries that I might receive by my use of the fitness center. I have checked with my doctor about the exercise program I am commencing upon.
{¶ 33} On appeal, the Seventh District concluded that the trial court erred in entering summary judgment in favor of Summit Acres based solely on the release. The court explained as follows:
Here, the release signed by Ruth does not contain the words, “release” or “negligence,” and does not identify the individuals, company or corporation being released from liability. The release simply states that Summit Acres is not liable for any injuries that Goss might receive “by [her] use of the fitness center.” “For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence.” [ Holmes , 103 Ohio App.3d 364, at 367, 659 N.E.2d 812 ]. Hence, the release in this case is of the type that have been characterized by Ohio courts as too ambiguous and general.
Id. at ¶ 28.
{¶ 34} After careful consideration, we find Brown-Spurgeon and Hague to be factually distinguishable from this case. Significantly, unlike the circumstances presented in Brown-Spurgeon , Goss does not contend that “appellees engaged in willful or wanton conduct.” Moreover, the Event Release executed in this case did not include an exception that would permit Goss to pursue a claim for damages arising from the appellees’ sole negligence. To the contrary, the Event Release directly contemplates the appellees’ own negligence and required Goss to acknowledge that she agreed “to waive, release, discharge, hold harmless, and promise to indemnify and not to sue” the appellees for damages arising from said negligence.
{¶ 35} Similarly, unlike the circumstances presented in Hague , the Event Release contained the words “release” and “negligence”; and is sufficiently clear and unambiguous as to both the type of liability being released (negligence) and the persons being released (event organizers). Here, Goss released the event sponsors and organizers from all claims arising from their own negligence to the maximum extent permitted by law, including any and all damages that may be sustained by Goss directly or indirectly in connection with, or arising out of, her participation in the cycling event. In this regard, the contract expressly stated that the release applied to “all races and activities entered at the event,” and further required Goss to acknowledge that “cycling is an inherently dangerous sport.” By signing the Event Release, Goss made the conscious choice to accept that she “fully assume[d] the risks associated with such participation,” including (1) the dangers of collisions with other riders; (2) the dangers arising from surface hazards, equipment failure, inadequate safety equipment, or the releasees’ own negligence; and (3) the possibility of a serious physical injury. Considering these terms collectively and in light of what an ordinary prudent person would understand, it is clear that the appellees were to be relieved from liability for any negligence claims relating to their organization of the cycling event, including pertinent hazards and the design of the racecourse.
{¶ 36} Construing the evidence most strongly in Goss’s favor, we find reasonable minds can come to but one conclusion and that conclusion is adverse to Goss. Under the doctrine of express assumption of risk, the terms of the Event Release prohibited Goss from advancing claims of negligence against the appellees. Accordingly, summary judgment in favor of the appellees was warranted as a matter of law.1
{¶ 37} Goss’s first assignment of error is overruled.
B. Public Policy Concerns
{¶ 38} In the second assignment of error, Goss argues the trial court erred by failing to adopt her argument that Ohio should void broad, nonspecific, ambiguous waivers of liability as a matter of public policy. Goss contends that by allowing a premises owner or occupier to obtain broad waivers of their own liability, an important incentive for the premises owners to maintain their premises in a reasonably safe condition would be removed, “thus forcing the public to bear the cost of resulting injuries caused by the [owner or occupier’s] own negligence.”
{¶ 39} Generally, in Ohio, exculpatory clauses, which relieve a party from its own negligence, are not against public policy despite being disfavored in the law. Papenfuse v. Toledo Area Regional Transit Auth. , 6th Dist. Lucas No. L-14-1178, 2015-Ohio-3193, 2015 WL 4720556, ¶ 6. Thus, “limiting or exculpatory language in a contract will be enforced unless the language is against important public policy concerns, unconscionable, or vague and ambiguous.” Morantz v. Ortiz , 10th Dist. Franklin No. 07AP-597, 2008-Ohio-1046, 2008 WL 642630, ¶ 27.
{¶ 40} On this record, we are unable to conclude that the Event Release is void and unenforceable due to an overwhelming public policy concern. On appeal, Goss does not contend that the Event Release was procedurally or substantively unconscionable. Moreover, as previously discussed, the Event Release was neither vague nor ambiguous. Finally, while this court agrees that the duties owed by premises owners are supported by legitimate interests in protecting the public from the risk of injury, it is equally true that the concept of freedom to contract is fundamental to our society. See
Hunter v. BPS Guard Servs., Inc. , 100 Ohio App.3d 532, 552, 654 N.E.2d 405. Similarly, there are significant public policy interests in the promotion and organization of recreational activities on public lands. In this case, the exculpatory clause released the event organizers from liability for negligence claims arising from the cycling event. However, the Event Release did not authorize the appellees to exercise no care whatsoever. Nor did it permit the appellees to engage in willful or wanton misconduct. Given these remaining, meaningful protections afforded to the public, we find no basis to adopt a position that would effectively overturn the well-established position of this court that “a participant in a recreational activity is free to contract with the proprietor of such activity as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor except when caused by wanton or wilful misconduct.” Lamb , 8th Dist. Cuyahoga No. 73144, 1998 WL 474183 at 2, 1998 Ohio App. LEXIS 3740 at 5-6 (Aug. 13, 1998) ; see also
Pruitt , 8th Dist. Cuyahoga No. 96332, 2011-Ohio-5272, at ¶ 12 (“Although [plaintiff] claims the release is against public policy, Ohio courts have consistently held to the contrary.”).
{¶ 41} Goss’s second assignment of error is overruled.
{¶ 42} Judgment affirmed.
MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR
——–
Notes:
1 Although not specifically considered in the state of Ohio, the language contained in the Event Release generated by USAC has been considered nationally and found to be an adequate and enforceable release of liability where such releases are permissible. See
Scott v. Altoona Bicycle Club , No. 1426 C.D.2009, 2010 WL 9512709 (Pa. July 16, 2010) (finding USAC’s event release is clear and unambiguous and released claims of negligence against event organizers and affirming the grant of summary judgment); Hellweg v. Special Events Mgmt. , 2011 IL App (1st) 103604, 956 N.E.2d 954, 958, 353 Ill. Dec. 826 (Ill. App. Ct. 2011) (“This agreement unambiguously absolves defendants of all claims arising out of the event even if caused by their own negligence.”); Milne v. USA Cycling, Inc. , 489 F.Supp.2d 1283, 1287 (D. Utah 2007) (“The Court finds the release to show a clear and unequivocal expression of an intent to release.”).
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Case sent back to trial court to determine liability when a rider improperly load’s a chairlift at a ski area and eventually falls, incurring no injuries.
Posted: May 15, 2023 Filed under: Arizona, Ski Area, Skiing / Snow Boarding | Tags: Arizona, Arizona Skier Safety Act, Business Invitee, Chair Lift, duty, Duty of care, mental anguish, Negligence, Physical Injury, Skier Safety Act Leave a commentArizona allows lawsuits for mental anguish when there is no physical injury.
McCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)
State: Arizona; Court of Appeals of Arizona, Division 1.
Plaintiff: Vincent MCCAW; Carly McCaw; Andrew McCaw
Defendant: Arizona Snowbowl Resort
Plaintiff Claims: Negligence causing emotional distress” and “psychiatric injuries
Defendant Defenses: Arizona Ski Safety Act
Holding: For the Plaintiffs
Year: 2022
Summary
Arizona appellate court holds that the Arizona Skier Safety Act does not protect ski areas from claims for injuries from chair lifts. The act covers the inherent risks of skiing/boarding but those acts are under the control of the ski area, and the rider has no control over a chair lift.
Facts
In December 2016, Vincent and his two children, 17-year-old Andrew and 14-year-old Carly, visited Snowbowl for a day of skiing and snowboarding. While they waited to load the ski chair lift, Andrew’s snowboard crossed Carly’s skis, causing her skis to “[go] out [from] underneath her.” Unable to steady herself and sit properly, Carly’s arms caught the approaching lift chair, leaving her “in a very severe slouch” position. With the skis and snowboard still entangled and believing she “would be able to get back on” properly, Carly did not attempt to maneuver away from the chair as it proceeded five to ten feet along a cable wire before beginning its ascent.
Upon realizing Carly’s precarious position, Vincent and Andrew grabbed her arms, turned toward the ski lift operator, and yelled for him to “stop” the ski lift. As other ski lift passengers became aware of the situation, they also began shouting at the operator for help. By that time, however, the operator was attending to other skiers in the load line and could not hear the passengers’ pleas over the sound of blaring music. Andrew and Vincent tried to hold onto Carly, but as she began to slip from their grasp, they determined they would have to let her go. When their chair traveled over powdered snow, Vincent and Andrew dropped Carly, hoping the unpacked snow would provide a safe landing. Carly fell over 34 feet but “popped right up” and waved to Vincent and Andrew upon landing.
After the ski lift incident, the McCaws resumed their normal lives and activities. However, Carly, Vincent, and Andrew began having recurring nightmares.
Alleging the ski lift incident caused them “emotional distress” and “psychiatric injuries,” the McCaws filed a negligence complaint against Snowbowl. Snowbowl answered, denying liability, and moved for summary judgment. Specifically, Snowbowl asserted that it “owed no duty” to the McCaws under the Act. Snowbowl also claimed that the McCaws failed to present evidence they sustained emotional distress “result[ing] in the kind of bodily manifestation of physical injury or illness cognizable under Arizona law.”
Analysis: making sense of the law based on these facts.
The court started out looking at Negligence as defined by Arizona’s law.
To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.”
Arizona’s law is no different than the majority of state laws in the US. The court then looked at duty. Too many times, defendant’s ski “duty” in their review of what the lawsuit is all about. Did you owe a duty to the injured person.
A duty is an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. “The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case.”
“As a legal matter, the issue of duty involves generalizations about categories of cases.” “Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.”
Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant,” as well as from public policy considerations. “Foreseeability of harm is not a relevant consideration in determining the threshold legal issue of whether a duty exists, nor are case-specific facts.”
The plaintiff argued that the defendant ski area owed them a duty because they were business invitees of the defendant. A business invitee as defined by Arizona’s law is:
In this case, the McCaws assert that Snowbowl owed them a duty of care based on their special relationship and status as Snowbowl’s business invitees. “A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Under the common law, a business owner has a duty to both maintain its premises in a reasonably safe condition and conduct its business in a reasonably safe manner to avoid causing injury to invitees.
It is undisputed that the McCaws were Snowbowl’s business invitees at the time of the ski lift incident. The question is whether the Act abrogates common-law negligence principles, relieving ski area operators of a duty of care they would otherwise owe to ski lift passengers.
Business invitee is a term used to describe the legal relationship between an injured person on the land and the land owner. Because the resort received value from the plaintiff’s they were a business invitee.
The court then turned to the Arizona Skier Safety Act which was being reviewed for the first time by the courts.
Under the first tier, or “primary assumption of risk,” a ski area operator owes no duty to a skier as a matter of law, and a negligence action cannot stand. (“[P]rimary assumption of the risk is an alternative expression for the proposition that the defendant … owed no duty to the plaintiff.”). The primary assumption of the risk principle applies only when the plaintiff has engaged in a sport, or other activity regarded as dangerous and “the injury suffered arises from an inherent risk in the activity.” (“[F]or inherent hazards, ski area operators owe skiers no duty of care and skiers assume the risk of those hazards in the primary sense.”); (“To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.”). Determining what constitutes an “inherent risk” presents a legal question for the court.
In contrast, under the secondary assumption of the risk tier, both the ski area operator and the skier have reciprocal responsibilities.
Using these definitions and applying the Arizona Skier Safety Act the court differentiated the duties owed to a skier versus those of a rider of the chair lift.
Applied to the Act, the primary assumption of risk tier governs any injury arising from the “inherent dangers and risks of skiing,” as statutorily defined. A.R.S. §§ 5-705(1), -701(5). Because a ski area operator owes no duty to eliminate or guard against risks inherent to skiing, it is only liable for a plaintiff’s injuries arising out of the dangers inherent to skiing if it breached its posting and equipment requirements as delineated in A.R.S. §§ 5-702 through -704, thereby contributing to the injuries sustained.
Because riding a chairlift is not an inherent risk of skiing, a different set of duties arises.
When an injury does not arise out of a risk inherent to skiing, common-law negligence principles apply, including a duty of care owed to business invitees. Because an operational failure with a ski lift is not an “inherent risk” of skiing, as that term is statutorily defined, the Act does not immunize a ski area operator from liability for ski lift negligence.
The rider of a chair lift is a business invitee, and the ski area owes that person different setup duties then someone who wonders upon their land. This analysis was supported by the argument that on the slopes and trails the rider had free will and could control their actions. On a chair lift, the rider was at the control and mercy of the chair lift operator.
This, too, is a rational solution because, unlike the slopes and trails, where a skier has “freedom of movement and choice,” a skier has no control over the movement of a ski lift.
This argument was summed up by the court as follows:
In sum, the Act provides a liability framework that generally maintains common-law negligence principles while immunizing ski area operators from lawsuits for injuries arising from the inherent risks of skiing. By its clear terms, the Act imposes a duty on skiers to have the knowledge and ability to safely load, ride, and unload from a ski lift, but it does not identify passage on a ski lift as an inherent risk of skiing.
After making this determination as to what part of the Arizona Skier Safety Act applied to what parts of skiing and riding, the court made this determination.
Having determined that ski area operators owe a duty of care to maintain and operate ski lifts safely and that passengers owe a duty of care to safely board, ride, and disembark ski lifts, whether Snowbowl or the McCaws, or both, breached their respective duties presents a question of fact.
If you are a skier or boarder, this decision might cause some issues. Was the resort at fault for not stopping the chair lift on time or was the skier at fault for not loading correctly. That question is now in the hands of the trial court again.
So Now What?
The Arizona court did not rule outside the parameters of any other court in a state that has a skier safety act. A higher degree of care is owed to clients in those situations where the act does not protect the ski area and/or the clients have no control of their situation.
One interesting note in the Arizona Skier Safety Act is § 5-706. Release of liability. This section specifically states that a release is valid under Arizona’s law and will take precedence in determining the liability of the ski area.
Another area the court did not touch on, but must be the law in Arizona is the lawsuit is about mental injury with no corresponding physical injury. Very few states allow this type of claim. Normally, there can be no damages for pain and suffering unless the claimant has suffered a physical injury.
For more Arizona decisions see:
Arizona limited right for parent to waive child’s right to sue
For more decisions concerning lift accidents see:
People including children fall off chair lifts.
Nevada family settles lawsuit over death of son swept off Nevada chair lift by Avalanche
Good record keeping proves defendant ski area did not operate lift improperly
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
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Arizona Ski Area Statutes
Posted: May 15, 2023 Filed under: Arizona, Skiing / Snow Boarding | Tags: Arizona, Arozona Ski Area Safety Act, Chair Lift, rider, ski area, Ski Area Safety, Skier Leave a commentArizona Ski Area Statutes
§ 5-702. Posting passenger information signs 2
§ 5-703. Posting ski information signs 3
§ 5-704. Additional duties of ski area operators 4
§ 5-705. Duties of skiers in any action against the ski area operator 4
Ҥ 5-706. Release of liability 5
§ 5-701. Definitions
In this chapter, unless the context otherwise requires:
1. “Base area lift” means a passenger tramway that skiers ordinarily use without first using another passenger tramway.
2. “Chair lift” means a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans.
3. “Competitor” means a skier actually engaged in competition or in practice for competition with the permission of a ski area operator on any slope or trail or portion of any slope or trail designated for competition by the ski area operator.
4. “Conditions of ordinary visibility” means daylight and, if applicable, nighttime in nonprecipitating weather.
5. “Inherent dangers and risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, excluding acts of ordinary or gross negligence, or reckless or intentional conduct on the part of the ski area operator. Inherent dangers and risks of skiing include:
(a) Changing weather conditions.
(b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.
(c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.
(d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.
(e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.
(f) Collisions with other skiers.
(g) The failure of skiers to ski within their own abilities.
6. “Passenger tramway” means a device used to transport passengers uphill on skis or in cars on tracks or suspended in the air by the use of steel cables, chains, belts or ropes, usually supported by trestles or towers with one or more spans.
7. “Rope tow” means a mode of transportation that pulls a skier riding on skis as the skier grasps the rope with the skier’s hands.
8. “Ski area” means all ski slopes and trails or other places within the boundary of a ski area operator’s property, administered as a single enterprise in this state.
9. “Ski area operator” means any corporation, company, partnership, firm, association or other commercial entity, including a natural person, and its employees, agents, members, successors in interest, affiliates and assigns that have responsibility for the operations of a ski area.
10. “Ski slopes and trails” means those areas designated by a ski area operator for use by skiers for any of the purposes listed in paragraph 11.
11. “Skier” means a person using a ski area for the purpose of skiing or sliding downhill on snow or ice on skis, a toboggan, sled, tube, skibob or snowboard or any other device, using any of the facilities of a ski area, including ski slopes and trails, or observing any activities in a ski area as a sightseer or visitor.
12. “Surface lift” means a mode of transportation that pulls skiers riding on skis by means of attachment to an overhead cable supported by trestles or towers. Surface lift includes a J-bar, a T-bar, a platter pull and any similar device.
ARS 5-701 Definitions (Arizona Revised Statutes (2023 Edition))
§ 5-702. Posting passenger information signs
A. A ski area operator shall maintain a sign system with concise, simple and pertinent information for the protection and instruction of people on a passenger tramway.
B. A ski area operator shall prominently display signs that are readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime passengers, as follows:
1. At or near the loading point of each passenger tramway, rope tow and surface lift advising that any person not familiar with the operation of the tramway, rope tow or surface lift should ask ski area personnel for assistance and instruction.
2. In a conspicuous place at the loading area of each two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car.
3. In the interior of each car in a two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car and that gives instructions for procedures in the case of emergencies.
4. At all chair lifts stating the following:
(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (c) of this paragraph.
(b) “Keep ski tips up” or “keep tips up”, which shall be posted ahead of any point where skis may come in contact with a platform or the snow surface while a skier is seated in the chair lift.
(c) “Prepare to unload”, which shall be posted at least fifty feet ahead of the unloading area.
(d) “Remove pole straps from wrists”, which shall be posted where applicable.
(e) “Stop gate”, which shall be posted where applicable.
(f) “Unload here”, which shall be posted at the point designated for unloading.
5. At all rope tows and surface lifts stating the following:
(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (b) of this paragraph.
(b) “Prepare to unload”, which shall be posted at least fifty feet ahead of each unloading area.
(c) “Remove pole straps from wrists”, which shall be posted where applicable.
(d) “Safety gate”, “stay in tracks” or “stop gate”, which shall be posted where applicable.
(e) “Unload here”, which shall be posted at the point designated for unloading or where applicable.
C. At the operator’s discretion a ski area operator may post additional signs not required by subsection B.
D. Before opening a passenger tramway to the public each day, a ski area operator shall inspect the tramway for the presence of the signs required by subsection B or that are posted pursuant to subsection C.
E. The extent of the responsibility of a ski area operator under this section is to post and maintain the signs required by subsection B and to maintain any signs posted pursuant to subsection C. It is a rebuttable presumption that all passengers and skiers saw and understood the signs if evidence exists that the signs required by subsection B or that are posted pursuant to subsection C were posted and the signs were maintained.
ARS 5-702 Posting passenger information signs (Arizona Revised Statutes (2023 Edition))
§ 5-703. Posting ski information signs
A. A ski area operator shall maintain a sign and marking system with concise, simple and pertinent information for the protection and instruction of skiers. The signs required by this section shall be readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime skiers.
B. A ski area operator shall place a sign that depicts and explains signs and symbols that skiers may encounter in the ski area in a position where all skiers who are proceeding to the uphill loading point of each base area lift will see the sign. The sign shall depict and explain at least the following signs and symbols:
1. A green circle and the word “easier”, which designates the least difficult ski slopes and trails of the ski area.
2. A blue square and the words “more difficult”, which designates the ski slopes and trails of the ski area that have a degree of difficulty between the least difficult and most difficult slopes and trails.
3. A black diamond and the words “most difficult”, which designates the most difficult ski slopes and trails of the ski area.
4. A figure in the shape of a skier with a band running diagonally from corner to corner of the sign with the word “closed” printed beneath the emblem.
C. If applicable, a ski area operator shall place a sign at or near the loading point of a passenger tramway that states one of the following:
1. If the tramway transports passengers only to the more difficult or most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘more difficult’ (blue square emblem) and ‘most difficult’ (black diamond emblem) slopes and trails only.”.
2. If the tramway transports passengers only to the most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘most difficult’ (black diamond emblem) slopes and trails only.”.
D. If a ski area operator closes a ski slope or trail or a portion of a ski slope or trail to the public, the operator shall place a sign notifying skiers that the slope or trail or portion of the slope or trail is closed at each identified entrance to the slope or trail or closed portion of the slope or trail. In lieu of placing a sign at each identified entrance, the ski area operator may close off the entrance with rope or fences.
E. A ski area operator shall place a sign at or near the beginning of each ski slope or trail that contains the appropriate symbol of the relative degree of difficulty of that slope or trail as set forth in subsection B. The requirements of this subsection do not apply to a ski slope or trail that is designated “easier” if a skier may substantially view the slope or trail in its entirety before beginning to ski the slope or trail.
F. A ski area operator shall mark the ski area boundaries that are designated on the trail map.
G. A ski area operator shall mark all ski lift tickets and season passes that the operator sells or makes available to skiers with the following in clearly readable print:
Warning: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing, including changing weather conditions, existing and changing snow surface conditions, surface or subsurface conditions, whether marked or unmarked, collisions with natural or man-made objects, whether marked or unmarked and the failure of skiers to ski within their own abilities.
H. A ski area operator shall post and maintain signs where ski lift tickets and ski school lessons are sold and in a location that is clearly visible to skiers who are proceeding to the uphill loading point of each base area lift that state the following in clearly readable print:
Warning–important: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing. Some of these risks are listed on your lift ticket or season pass. Please review your ticket or pass and ask the ski area personnel for more information.
ARS 5-703 Posting ski information signs (Arizona Revised Statutes (2023 Edition))
§ 5-704. Additional duties of ski area operators
A. If maintenance equipment is being used to maintain or groom any ski slope or trail that a ski area operator has not designated as closed pursuant to section 5-703, subsection D, the ski area operator shall place a conspicuous notice at or near the beginning of the slope or trail and at any entrance points to the slope or trail that notifies skiers about the presence of the equipment.
B. All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following:
1. One lighted head lamp.
2. One lighted red tail lamp.
3. A red or orange flag that is at least forty square inches in size and that is mounted at least five feet above the bottom of the tracks.
C. A ski area operator has no duties to any skier who skis beyond the designated boundaries of the ski area.
ARS 5-704 Additional duties of ski area operators (Arizona Revised Statutes (2023 Edition))
§ 5-705. Duties of skiers in any action against the ski area operator
In any civil action brought by a skier against a ski area operator, the duties of a skier shall be as follows:
1. At all times a skier has the sole responsibility to know the range of the skier’s own ability to negotiate a ski slope or trail and to ski within the limits of that ability. A skier expressly accepts the total risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing.
2. Before using a chair lift, passenger tramway, rope tow or surface lift, a skier shall have the knowledge and ability to safely load, ride and unload from the device.
3. A skier shall maintain control of the skier’s speed and course at all times when skiing and shall maintain a proper lookout to enable the skier to avoid collisions with other skiers and with natural and man-made objects, whether marked or unmarked.
4. A skier shall avoid snow maintenance and grooming equipment, vehicles, lift towers, signs and other equipment located on ski slopes and trails.
5. A skier shall heed all posted information, signs and other warnings and shall refrain from acting in a manner that may cause or contribute to the injury of the skier or other persons or property. A skier is presumed to have seen and understood all signs and notices posted pursuant to sections 5-702, 5-703 and 5-704. Under conditions of decreased visibility, the duty rests on the skier to locate and ascertain the meaning of all the signs and notices.
6. A skier shall only use skis, snowboards and other equipment that have been equipped with a functional strap or other device designed to reduce the risk of runaway equipment.
7. A skier shall not ski on a ski slope or trail or a portion of a ski slope or trail that a ski area operator has designated as closed pursuant to section 5-703, subsection D.
8. A skier shall not begin to ski from a stationary position or enter a ski slope or trail from the side unless the skier is able to avoid colliding with moving skiers already on the ski slope or trail.
9. A skier shall not cross the uphill track or place any object in the uphill track of a rope tow or surface lift except at locations that have been designated for crossing by a ski area operator.
10. A skier shall not move uphill on any passenger tramway or use any ski slope or trail while the skier’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug.
11. A skier involved in a collision with another skier that results in an injury shall not leave the vicinity of the collision before giving the skier’s name and current address to an employee of the ski area operator or a member of a paid or voluntary ski patrol. This paragraph does not prohibit a skier from leaving the scene of a collision to secure first aid for a person who is injured in the collision. If a skier leaves the scene of a collision to secure first aid, the skier shall leave the skier’s name and current address as required by this paragraph after securing the first aid.
12. A skier shall not knowingly enter the public or private lands of an adjoining ski area if the owner of that land has closed that land to skiers and the landowner or the ski area operator has designated the adjoining land as closed.
ARS 5-705 Duties of skiers in any action against the ski area operator (Arizona Revised Statutes (2023 Edition))
§ 5-706. Release of liability
In any action brought by a skier against a ski area operator, if the ski area operator proves that the skier signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.” ARS 5-706 Release of liability (Arizona Revised Statutes (2023 Edition))
§ 5-707. Competition
A. Before the beginning of any competition, a ski area operator shall allow any competitor a reasonable visual inspection of the course or area where the competition is to be held.
B. A competitor accepts the risk of all course conditions, including weather and snow conditions, course construction or layout and obstacles that a visual inspection immediately before the run could have revealed.
C. In any action brought by a competitor against any ski area operator, if the ski area operator proves that the participant in the competition signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.
ARS 5-707 Competition (Arizona Revised Statutes (2023 Edition))
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McCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)
Posted: May 15, 2023 Filed under: Arizona, Legal Case, Ski Area, Skiing / Snow Boarding | Tags: Arizona, Arizona Snowbowl, Business Invitee, Chair Lift, duty, Duty Owed, rider, Skier, Skier Safety Act, Snowbowl Leave a commentMcCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)
84 Arizona Cases Digest 9
521 P.3d 381
Vincent MCCAW; Carly McCaw; Andrew McCaw, Plaintiffs/Appellants,
v.
ARIZONA SNOWBOWL RESORT, Defendant/Appellee.
No. 1 CA-CV 21-0585
Court of Appeals of Arizona, Division 1.
Filed November 22, 2022
Fuller Law Group PC, San Diego, CA, By Craig D. Fuller, Counsel for Plaintiffs/Appellants
Jones Skelton & Hochuli, Phoenix, By Jack Klecan, Kristin W. Basha, Eileen Dennis GilBride, Elizabeth B.N. Garcia, Co-Counsel for Defendant/Appellee
McClaugherty and Silver PC, Santa Fe, NM, By Joe L. McClaugherty, admitted pro hac vice, Co-Counsel for Defendant/Appellee
Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.
CAMPBELL, Judge:
¶1 Vincent, Carly, and Andrew McCaw (the McCaws) appeal from the superior court’s ruling granting summary judgment in favor of Arizona Snowbowl Resort (Snowbowl). Because the Arizona Ski Safety Act (the Act) does not shield a ski area operator from liability for injuries arising from ski lift accidents, it does not bar the McCaws’ negligence claims. Accordingly, we vacate the superior court’s summary judgment ruling and remand for proceedings consistent with this opinion.
BACKGROUND
¶2 In December 2016, Vincent and his two children, 17-year-old Andrew and 14-year-old Carly, visited Snowbowl for a day of skiing and snowboarding. While they waited to load the ski chair lift, Andrew’s snowboard crossed Carly’s skis, causing her skis to “[go] out [from] underneath her.” Unable to steady herself and sit properly, Carly’s arms caught the approaching lift chair, leaving her “in a very severe slouch” position. With the skis and snowboard still entangled and believing she “would be able to get back on” properly, Carly did not attempt to maneuver away from the chair as it proceeded five to ten feet along a cable wire before beginning its ascent.
¶3 Upon realizing Carly’s precarious position, Vincent and Andrew grabbed her arms, turned toward the ski lift operator, and yelled for him to “stop” the ski lift. As other ski lift passengers became aware of the situation, they also began shouting at the operator for help. By that time, however, the operator was attending to other skiers in the load line and could not hear the passengers’ pleas over the sound of blaring music. Andrew and Vincent tried to hold onto Carly, but as she began to slip from their grasp, they determined they would have to let her go. When their chair traveled over powdered snow, Vincent and Andrew dropped Carly, hoping the unpacked snow would provide a safe landing. Carly fell over 34 feet but “popped right up” and waved to Vincent and Andrew upon landing.
¶4 After the ski lift incident, the McCaws resumed their normal lives and activities. However, Carly, Vincent, and Andrew began having recurring nightmares.
¶5 Alleging the ski lift incident caused them “emotional distress” and “psychiatric injuries,” the McCaws filed a negligence complaint against Snowbowl. Snowbowl answered, denying liability, and moved for summary judgment. Specifically, Snowbowl asserted that it “owed no duty” to the McCaws under the Act. Snowbowl also claimed that the McCaws failed to present evidence they sustained emotional distress “result[ing] in the kind of bodily manifestation of physical injury or illness cognizable under Arizona law.”
¶6 After oral argument on the motion, the superior court granted summary judgment in favor of Snowbowl, agreeing that the ski area operator owed no duty to the McCaws. The superior court found that the Act “comprehensively defines the duties of skiers and the duties of a ski area operator.” Construing the Act’s provisions, the court determined that “the duty to safely (1) load, (2) ride, and (3) unload a chair lift is the skier’s exclusive duty and not a duty of the ski area operator.” Without ruling on Snowbowl’s alternative argument regarding insufficient evidence of cognizable damages, the superior court dismissed the matter with prejudice.1
¶7 Over the McCaws’ objection, the superior court awarded Snowbowl its requested costs and entered a final judgment in its favor. The McCaws timely appealed.
DISCUSSION
¶8 The McCaws challenge the superior court’s summary judgment ruling, contending Snowbowl owed them a duty to monitor the ski lift and promptly intercede when the misloading occurred. Disagreeing with the superior court’s determination that the Act assigns all duties related to ski lift safety “exclusively” to skiers, the McCaws argue that the Act provides ski area operators the affirmative defenses of contributory negligence and assumption of the risk. As a corollary, and for the first time on appeal, the McCaws assert that the superior court’s ruling violated Article 18, Section 5, of the Arizona Constitution by infringing on their right to have a jury determine the existence or extent of their contributory negligence and assumption of risk.
¶9 In reviewing a grant of summary judgment, we view the facts and the reasonable inferences drawn from those facts in the light most favorable to the non-moving party and affirm “if the evidence produced in support of the defense or claim has so little probative value that no reasonable person could find for its proponent.” State Comp. Fund v. Yellow Cab Co. of Phx. , 197 Ariz. 120, 122, ¶ 5, 3 P.3d 1040, 1042 (App. 1999). We review de novo the superior court’s application of the law. Id. ; see also Ariz. R. Civ. P. 56(a) (“The court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.”).
¶10 “To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey , 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). “Whether the defendant owes the plaintiff a duty of care is a threshold issue[,]” subject to our de novo review. Id. at ¶¶ 9, 11 ; Guerra v. State , 237 Ariz. 183, 185, ¶ 7, 348 P.3d 423, 425 (2015). To survive a motion for summary judgment, the plaintiff must show a duty exists; “absent some duty, an action for negligence cannot be maintained.” Quiroz v. ALCOA Inc. , 243 Ariz. 560, 563, ¶ 2, 416 P.3d 824, 827 (2018) ; Gipson , 214 Ariz. at 143, ¶ 11, 150 P.3d at 230.
¶11 A duty is an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Gipson , 214 Ariz. at 143, ¶ 10, 150 P.3d at 230 (quotation and citation omitted). “The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case.” Id. ; Markowitz v. Ariz. Parks Bd. , 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985) (noting the existence of a duty must not “be confused with details of the standard of conduct” required to satisfy the duty); see also
Stephens v. Bashas’ Inc. , 186 Ariz. 427, 431, 924 P.2d 117, 431 (App. 1996) (explaining that the existence of a duty must be determined “on the basis of the parties’ relationship, not on the details of their conduct”).
¶12 “As a legal matter, the issue of duty involves generalizations about categories of cases.” Gipson , 214 Ariz. at 143, ¶ 10, 150 P.3d at 230. “Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.” Id. at 143-44, ¶ 11, 150 P.3d at 230–31.
¶13 “Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant,” as well as from public policy considerations. Id. at 145, ¶¶ 18, 23, 150 P.3d at 232. “Foreseeability of harm is not a relevant consideration in determining the threshold legal issue of whether a duty exists, nor are case-specific facts.” Guerra , 237 Ariz. at 185, ¶ 8, 348 P.3d at 425 ; see also
Quiroz , 243 Ariz. at 563, ¶ 2, 416 P.3d at 827 ; Gipson , 214 Ariz. at 144, ¶ 15, 150 P.3d at 231.
¶14 In this case, the McCaws assert that Snowbowl owed them a duty of care based on their special relationship and status as Snowbowl’s business invitees. “A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Nicoletti v. Westcor, Inc. , 131 Ariz. 140, 143, 639 P.2d 330, 333 (1982) (internal quotations and citations omitted). Under the common law, a business owner has a duty to both maintain its premises in a reasonably safe condition and conduct its business in a reasonably safe manner to avoid causing injury to invitees. Stephens , 186 Ariz. at 430-31, 924 P.2d at 120–21 ; see also Restatement (Second) of Torts § 343 cmt. b (1965) (stating that “an invitee enters [land] upon an implied representation or assurance that [it] has been prepared and made ready and safe for his reception”).
¶15 It is undisputed that the McCaws were Snowbowl’s business invitees at the time of the ski lift incident. The question is whether the Act abrogates common-law negligence principles, relieving ski area operators of a duty of care they would otherwise owe to ski lift passengers.
¶16 “When interpreting a statute, our primary goal is to give effect to the legislature’s intent.” Wilks v. Manobianco , 237 Ariz. 443, 446, ¶ 8, 352 P.3d 912, 915 (2015) (quotation and citation omitted). To derive that intent, we consider the “statutory language in view of the entire text, considering the context and related statutes on the same subject.” Nicaise v. Sundaram , 245 Ariz. 566, 568, ¶ 11, 432 P.3d 925, 927 (2019). “If the language is clear and unambiguous,” we follow the text as written and “need not resort to other methods of statutory construction.” Indus. Comm’n of Ariz. v. Old Republic Ins. Co. , 223 Ariz. 75, 77, ¶ 7, 219 P.3d 285, 287 (App. 2009). Only if a statute is ambiguous will we examine “the statute’s history, context, consequences, and purpose.” Wilks , 237 Ariz. at 446, ¶ 8, 352 P.3d at 915. When statutes relate to the same subject or general purpose, they “should be read in connection with, or should be construed with other related statutes, as though they constituted one law.” Pinal Vista Props., L.L.C. v. Turnbull , 208 Ariz. 188, 190, ¶ 10, 91 P.3d 1031, 1033 (App. 2004) (quotation and citation omitted). “Further, each word or phrase of a statute must be given meaning so that no part is rendered void, superfluous, contradictory or insignificant.” Id.
¶17 “If the legislature seeks to preempt a cause of action[,] … the law’s text or at least the legislative record should say so explicitly.” Orca Commc’ns Unlimited, LLC v. Noder , 236 Ariz. 180, 182, ¶ 10, 337 P.3d 545, 547 (2014) (quotation and citation omitted). “Absent a clear manifestation of legislative intent to displace a common-law cause of action, we interpret statutes with every intendment in favor of consistency with the common law.” Id. (quotation and citation omitted); see also A.R.S. § 1-201 (“Adoption of common law; exceptions”). To be clear, “it is not the function of the courts to rewrite statutes,” and we will not “interpret a statute in favor of denial or preemption of tort claims – even those that are not or may not be constitutionally protected – if there is any reasonable doubt about the legislature’s intent.” Id. at ¶¶ 10-11 (quotations and citations omitted).
¶18 In 1997, the legislature enacted the Act, A.R.S. §§ 5-701 through -707, which regulates ski areas and delineates the responsibilities of both operators and skiers. Section 5-702 requires ski area operators to “prominently display signs” outlining “pertinent information for the protection and instruction” of ski lift passengers. A.R.S. § 5-702(A), (B). As relevant here, ski area operators must post a sign at the loading point of each ski lift admonishing “any person not familiar with the operation” of the ski lift to “ask ski area personnel for assistance and instruction .” A.R.S. § 5-702(B)(1) (emphasis added). In addition, ski area operators must place a sign on the interior of each ski lift chair “that gives instructions for procedures in the case of emergencies .” A.R.S. § 5-702(B)(3) (emphasis added). Similarly, A.R.S. § 5-703 requires ski area operators to display signs containing “pertinent information for the protection and instruction of skiers.” Among the required postings, ski area operators must display signs indicating the difficulty level of each slope and trail. A.R.S. § 5-703(B), (C). Ski area operators must also clearly mark the ski area boundaries and either place a warning sign or rope off closed areas. A.R.S. § 5-703(D), (F). Apart from posting signs at designated areas, ski area operators must maintain certain equipment, A.R.S. § 5-704, and mark all ski lift tickets and passes with the following admonition:
Warning: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing, including changing weather conditions, existing and changing snow surface conditions, surface or subsurface conditions, whether marked or unmarked, collisions with natural or man-made objects, whether marked or unmarked and the failure of skiers to ski within their own abilities.
A.R.S. § 5-703(G). This mandatory warning derives from A.R.S. § 5-701(5) ‘s definition of “[i]nherent dangers and risks of skiing”:
[T]hose dangers or conditions that are an integral part of the sport of skiing, excluding acts of ordinary or gross negligence, or reckless or intentional conduct on the part of the ski area operator . Inherent dangers and risks of skiing include:
(a) Changing weather conditions.
(b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.
(c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.
(d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.
(e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.
(f) Collisions with other skiers.
(g) The failure of skiers to ski within their own abilities.
(Emphasis added.)
¶19 In turn, A.R.S. § 5-705 outlines the “duties of a skier” for purposes of “any civil action brought by a skier against a ski area operator.” First and foremost, A.R.S. § 5-705(1) provides that “[a] skier expressly accepts the total risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing .” (Emphasis added.) Specific to this appeal, subsection (2) states: “Before using a chair lift … a skier shall have the knowledge and ability to safely load, ride and unload from the device,” and subsection (5) states: “A skier shall heed all posted information, signs and other warnings and shall refrain from acting in a manner that may cause or contribute to the injury of the skier or other persons or property.” A.R.S. § 5-705(2), (5). The remaining enumerated duties pertain to skiers’ conduct on slopes and trails. A.R.S. § 5-702(3), (4), (6)-(12).
¶20 Reading these related provisions together, the legislature adopted an analytical framework under which skiers assume all legal responsibility for injuries arising out of the inherent dangers of skiing while ski area operators retain common-law liability for both ordinary and gross negligence . As part of this framework, the legislature also imposed duties on ski area operators and skiers. Sections 5-702 to -704 impose certain posting and equipment maintenance duties on ski area operators, the breach of which constitutes negligence per se. Likewise, A.R.S. § 5-705 imposes certain responsibilities on skiers, the violation of which constitutes a defense to a civil action. This reading is consistent with the plain language of the Act.
¶21 While no previous Arizona case has interpreted the Act, courts in numerous other jurisdictions have construed similar ski safety acts enacted by their legislatures. Although not controlling, we find the two-tier assumption of risk analysis conceptualized in many of these out-of-state cases persuasive.
¶22 Under the first tier, or “primary assumption of risk,” a ski area operator owes no duty to a skier as a matter of law, and a negligence action cannot stand. Van Dyke v. S.K.I. Ltd. , 67 Cal.App.4th 1310, 79 Cal. Rptr. 2d 775, 778 (1998) ; see also
Lopez v. Ski Apache Resort , 114 N.M. 202, 836 P.2d 648, 653 (N.M. Ct. App. 1992) (“[P]rimary assumption of the risk is an alternative expression for the proposition that the defendant … owed no duty to the plaintiff.”). The primary assumption of the risk principle applies only when the plaintiff has engaged in a sport, or other activity regarded as dangerous and “the injury suffered arises from an inherent risk in the activity.” Van Dyke , 79 Cal. Rptr. 2d at 778 (emphasis added); see also
Jagger v. Mohawk Mountain Ski Area, Inc. , 269 Conn. 672, 849 A.2d 813, 828 (2004) (“[F]or inherent hazards, ski area operators owe skiers no duty of care and skiers assume the risk of those hazards in the primary sense.”); Murray v. Great Gorge Resort, Inc. , 360 N.J.Super. 395, 823 A.2d 101, 106 (2003) (“In the skiing context, an inherent risk is one that cannot be removed through the exercise of due care if the sport is to be enjoyed.” (citation omitted)); Horvath v. Ish , 134 Ohio St.3d 48, 979 N.E.2d 1246, 1251 (2012) (“To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.” (citation omitted)). Determining what constitutes an “inherent risk” presents a legal question for the court. Van Dyke , 79 Cal. Rptr. 2d at 778.
¶23 In contrast, under the secondary assumption of the risk tier, both the ski area operator and the skier have reciprocal responsibilities. See
Horvath , 979 N.E.2d at 1251 (determining the duties of operators and skiers “are reciprocal,” with “skiers ow[ing] ski-area operators certain enumerated responsibilities”); see also
Jagger , 849 A.2d at 828 (“For those hazards which are not an innate part of the sport of skiing, or over which an operator can act reasonably to eliminate or minimize the potential for harm, operators owe skiers a duty of reasonable care.”). Whether the parties breached their respective duties of care, and the comparative negligence of the parties, if any, present questions of fact for a jury. See
Jagger , 849 A.2d at 829.
¶24 Applied to the Act, the primary assumption of risk tier governs any injury arising from the “inherent dangers and risks of skiing,” as statutorily defined. A.R.S. §§ 5-705(1), -701(5). Because a ski area operator owes no duty to eliminate or guard against risks inherent to skiing, it is only liable for a plaintiff’s injuries arising out of the dangers inherent to skiing if it breached its posting and equipment requirements as delineated in A.R.S. §§ 5-702 through -704, thereby contributing to the injuries sustained. “This is a rational solution for limiting ski area operators’ liability and promoting safety.” Grieb v. Alpine Valley Ski Area, Inc. , 155 Mich.App. 484, 400 N.W.2d 653, 656 (1986) ; see also
Gipson , 214 Ariz. at 146, ¶ 29, 150 P.3d at 233 (“When a court or legislature adopts a no-duty rule, it generally does so based on concerns that potential liability would chill socially desirable conduct or otherwise have adverse effects.”).
¶25 When an injury does not arise out of a risk inherent to skiing, common-law negligence principles apply, including a duty of care owed to business invitees. See
Horvath , 979 N.E.2d at 1251. Because an operational failure with a ski lift is not an “inherent risk” of skiing, as that term is statutorily defined, the Act does not immunize a ski area operator from liability for ski lift negligence. See
Pietruska v. Craigmeur Ski Area , 259 N.J.Super. 532, 614 A.2d 639, 641 (1992) (“Improper operation of a ski lift is not an inherent risk of skiing since, with due care, it can be eliminated. While the [ski safety act] imposes certain duties on a skier who uses a lift, it does not identify proper usage thereof as an inherent risk.”). This, too, is a rational solution because, unlike the slopes and trails, where a skier has “freedom of movement and choice,” a skier has no control over the movement of a ski lift. See
Mannhard v. Clear Creek Skiing Corp. , 682 P.2d 64, 66 (Colo. Ct. App. 1983).
¶26 In sum, the Act provides a liability framework that generally maintains common-law negligence principles while immunizing ski area operators from lawsuits for injuries arising from the inherent risks of skiing. By its clear terms, the Act imposes a duty on skiers to have the knowledge and ability to safely load, ride, and unload from a ski lift, but it does not identify passage on a ski lift as an inherent risk of skiing. Indeed, other provisions in the Act demonstrate that a ski area operator owes a duty of care to ski lift passengers. For example, A.R.S. § 5-702(B)(1) requires ski area operators to assist inexperienced passengers in loading ski lifts, and A.R.S. § 5-702(B)(3) requires ski lift operators to have predetermined emergency procedures in place in the event of a ski lift mishap. While the Act charges a ski lift passenger with a duty of care to safely ride a ski lift,2 it does not relieve a ski area operator of the common-law duty to maintain and operate ski lifts with care for its business invitees. Had the legislature intended to foreclose a passenger from bringing a negligence claim against a ski area operator for an injury arising out of passage on a ski lift, it was required to do so by expressly abrogating the common law and including passage on a ski lift within the enumerated inherent risks of skiing. Young v. Beck , 227 Ariz. 1, 4, ¶ 13, 251 P.3d 380, 383 (2011) (“We generally do not find that a statute changes common law unless the legislature clearly and plainly manifests an intent to have the statute do so.” (cleaned up)). Absent express preemption language, we will not construe the Act as barring common-law negligence claims. See
Bayer v. Crested Butte Mountain Resort, Inc. , 960 P.2d 70, 72 (Colo. 1998) (“A ski lift operator must exercise the highest degree of care commensurate with the lift’s practical operation ….”); D’Amico v. Great Am. Recreation, Inc. , 265 N.J.Super. 496, 627 A.2d 1164, 1166-67 (1992) (concluding ski lift operators “should be held to the highest standard of care” because a “skier has no ability to stop the cable from moving” and cannot “exit the chair once it has begun its ascent”).
¶27 Having determined that ski area operators owe a duty of care to maintain and operate ski lifts safely and that passengers owe a duty of care to safely board, ride, and disembark ski lifts, whether Snowbowl or the McCaws, or both, breached their respective duties presents a question of fact.3
See
Wilks , 237 Ariz. at 447, ¶ 15, 352 P.3d at 916. Therefore, the superior court erred by granting summary judgment in Snowbowl’s favor on the basis that it owed no duty as a matter of law.4
CONCLUSION
¶28 For the foregoing reasons, we vacate the superior court’s summary judgment ruling and award of costs and remand for proceedings consistent with this opinion. In their briefing, the McCaws requested their attorneys’ fees incurred on appeal, failing to cite any supporting legal authority, but withdrew their request at oral argument. We award the McCaws their costs incurred on appeal, conditioned upon compliance with ARCAP 21.
——–
Notes:
1 Contrary to Snowbowl’s assertion, the superior court did not enter a “ruling” regarding the legal sufficiency of the McCaws’ damages evidence.
2 The McCaws posit that A.R.S. § 5-705(2) requires ski lift passengers only to possess the requisite knowledge to safely ride a ski lift, without requiring them to conform to that knowledge for both their protection and the safety of others. Stated differently, the McCaws argue that ski lift passengers have no duty to safely ride ski lifts under the Act. We reject this construction as nonsensical. See
Walgreen Ariz. Drug Co. v. Ariz. Dep’t of Revenue , 209 Ariz. 71, 73, ¶ 12, 97 P.3d 896, 898 (App. 2004) (explaining courts “interpret statutes to give them a fair and sensible meaning and to avoid absurd results”).
3 In this case, the extent of the plaintiffs’ contributory negligence, if any, must be determined individually.
4 Given our resolution of the duty issue, we need not address the McCaws’ constitutional claim.
@2023 Summit Magic Publishing, LLC
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Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)
Posted: May 8, 2023 Filed under: Minnesota, Racing, Release (pre-injury contract not to sue) | Tags: Bang the Gong, Course Race, Federal Court of Appeals, Greater than Ordinary Negligence, Gross negligence, Jump, Minnesota, Mud Run, obstacle, Obstacle course racing, Obsticle Course, Ordinary Negligence, Platform, Release, Rugged Maniac, Spartan Race, Tough Mudder Leave a commentTo Read an Analysis of this decision see: Sloppy but still lucky? Obstacle course avoids lawsuit with release, however, it was close
Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)
42 F.4th 955
Jeanne ANDERSON, Plaintiff – Appellant
v.
RUGGED RACES, LLC; Dennis Raedeke, Inc., doing business as Wild Mountain Recreation Area, Defendants – Appellees
No. 20-3436
United States Court of Appeals, Eighth Circuit.
Submitted: February 16, 2022
Filed: August 2, 2022
Counsel who represented the appellant was L. Michael Hall, of Saint Cloud, MN and Mara Brust of Saint Cloud, MN.
Counsel who represented the appellee was John M. Bjorkman, of Saint Paul, MN, Mark A. Solheim, of Saint Paul, MN, Anthony James Novak, of Saint Paul, MN and Pat Henry O’Neill of Saint Paul, MN.
Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
LOKEN, Circuit Judge.
In September 2016, Jeanne Anderson shattered her heel bone participating in the Rugged Maniac Twin Cities 5k obstacle race at the Wild Mountain Recreation Area (“Wild Mountain”). In 2018, Anderson sued Rugged Races LLC (“Rugged Races”), the race promoter, and Dennis Raedeke, Inc., the owner of Wild Mountain, alleging that defendants were “grossly negligent” in failing to perform their duties to protect race participants from unreasonable risks of harm. She appeals the district court’s1 grant of summary judgment in favor of both defendants. The diversity action is governed by Minnesota state law. Reviewing the grant of summary judgment de novo , we affirm. See
Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 585-86 (8th Cir. 1998) (standard of review).
I. Background
Since 2010, Rugged Races has planned hundreds of obstacle races around the country, including Rugged Maniac Twin Cities. The events feature an obstacle course with a series of challenges involving barbed wire, fire, water, and mud, followed by a post-race party. When Anderson registered for the 2016 Twin Cities event, she signed a Race Participant Agreement (the Agreement). In Part III of the Agreement, titled Assumption of Inherent Risks , Anderson acknowledged:
I understand fully the inherent risks involved in the Event and assert that I am willingly and voluntarily participating in the Event. … (1) I understand the nature of the Event; (2) I understand the physical and mental demands that this activity will place upon me; and (3) I understand that I may be injured by participating in the Event. I hereby assert that I knowingly assume all of the inherent risks of the activity and take full responsibility for any and all damages, liabilities, losses or expenses that I incur as a result of participating in the Event.
In Part IV, titled Waiver of Liability for Ordinary Negligence, Anderson waived and discharged both Rugged Races and Wild Mountain “from any and all claims resulting from the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE of Rugged Races LLC (or other Released Parties).” Anderson again signed the Agreement when she checked in on race day.
After starting the race and completing the first seven obstacles, Anderson reached the “Bang the Gong” challenge. This obstacle required her to jump from a raised platform, attempt to slap a gong in midair, and land in a pit of muddy water. When Anderson landed in the pit her “left foot hit something hard.” She crawled from the pit, received medical attention, and learned she had shattered the calcaneus bone in her left heel. Of the more than 4000 participants in the 2016 race, four others were injured on the Bang the Gong obstacle, suffering injuries to their foot or ankle after landing in the pit.
Anderson’s Complaint alleged (i) that defendants had duties to design and construct a reasonably safe course, maintain the course in a safe condition, inspect the course for unreasonable risks of harm, warn race participants of unreasonable risks, supervise parties responsible for performing those duties, and operate and maintain the course to ensure participants were not exposed to unreasonable risks; and (ii) that defendants were grossly negligent in failing to perform each of these duties. After discovery, defendants moved for summary judgment. The summary judgment record includes deposition testimony from Anderson and Rugged Races employees, declarations from the other injured participants, reports by Anderson’s expert witnesses, and other documentary evidence.
The district court granted summary judgment in favor of both defendants. Anderson v. Rugged Races LLC, 496 F. Supp. 3d 1270 (D. Minn. 2020). The court concluded that the exculpatory clause in the Agreement barred any claims for ordinary negligence and that Anderson had failed to show “greater-than-ordinary negligence.” On appeal, Anderson argues (i) the exculpatory clause is unenforceable; (ii) if enforceable, it does not waive claims based on defendants’ alleged greater-than-ordinary negligence; and (iii) the summary judgment record includes evidence from which a reasonable jury could find greater-than-ordinary negligence. Defendants argue the district court properly granted summary judgment because there is insufficient evidence of greater-than-ordinary negligence. They further argue that Minnesota law does not recognize any claim other than the claims for ordinary negligence that Anderson waived in the Agreement.2
We will affirm the grant of summary judgment when the evidence viewed in the light most favorable to the nonmoving party presents “no genuine issue of material fact” from which “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis omitted); see Fed. R. Civ. P. 56(a). “A mere scintilla of evidence is insufficient to defeat summary judgment and if a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as to any element of the cause of action, then summary judgment is appropriate.” Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (quotations and citations omitted).
II. Analysis
On appeal, Anderson argues that her waiver of ordinary negligence claims in the Agreement is not enforceable and, alternatively, that it does not waive claims based on greater-than-ordinary negligence. Defendants counter that the exculpatory clause is valid and enforceable and bars all of Anderson’s claims. There is a considerable body of relevant Minnesota case law on these issues.
A. Under Minnesota law, there is no common law action for “gross negligence.” See Peet v. Roth Hotel Co., 191 Minn. 151, 253 N.W. 546, 548 (1934). However, the negligence standard governing particular claims may be varied by statute or by contract. See, e.g., State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480 (1946) (criminal negligence statute), overruled on other grounds, State v. Engle, 743 N.W.2d 592 (Minn. 2008). Under Minnesota law, as in most States, “ordinary negligence” is the “failure to exercise such care as persons of ordinary prudence usually exercise under such circumstances.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (quotation omitted). Gross negligence is “substantially and appreciably higher in magnitude than ordinary negligence … [and is] the absence of slight diligence, or the want of even scant care.” Bolsinger, 21 N.W.2d at 485.
In the Race Participant Agreement, Anderson waived all claims resulting from “the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE” of the defendants. Minnesota Courts call provisions of this type exculpatory clauses. In Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982), the Supreme Court of Minnesota dismissed a fitness spa member’s negligence action, based on the exculpatory clause in her membership agreement. The Court noted that prior cases had upheld exculpatory clauses in construction contracts and commercial leases:
Even though we have recognized the validity of exculpatory clauses in certain circumstances, they are not favored in the law. A clause exonerating a party from liability will be strictly construed against the benefited party. If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced .
Id. at 923 (emphasis added, citation omitted). Reversing the denial of summary judgment, the Court held:
that the exculpatory clause in Spa Petite’s membership contract was unambiguous and limited to exoneration from negligence; that there was not disparity of bargaining power; and that the clause was not void as against public policy.
Id. at 926.
In Beehner v. Cragun Corp., 636 N.W.2d 821 (Minn. Ct. App. 2001), the Minnesota Court of Appeals considered a riding stable’s exculpatory clause. Unlike the exculpatory clause in Schlobohm, which applied to “all acts of active or passive negligence,” 326 N.W.2d at 922, the clause in Beehner was limited to claims of “ordinary negligence” and expressly excluded claims based on “gross negligence and willful and wanton misconduct.” 636 N.W.2d at 825. Reversing the grant of summary judgment in favor of the riding stable, the Court held:
In a dispute over the applicability of an exculpatory clause, summary judgment is appropriate only when it is uncontested that the party benefited by the exculpatory clause has committed no greater-than-ordinary negligence . Thus, summary judgment is appropriate here only if Outback’s conduct does not, as a matter of law, rise to the level of gross negligence or wanton and willful misconduct .
Id. at 829 (emphasis added and citation omitted).
The district court treated Beehner as controlling Minnesota authority and applied the greater-than-ordinary negligence standard. Defendants argue Minnesota law does not recognize any claim other than the claims for ordinary negligence. We need not resolve that question in this case because, in granting summary judgment in favor of defendants, the district court adopted the view of this issue that is most favorable to Anderson, the non-moving party. Because we agree with the court that Anderson presented insufficient evidence of greater-than-ordinary negligence, we assume without deciding that this standard is consistent with controlling Minnesota law.
In addition to arguing that greater-than-ordinary negligence is the correct standard, Anderson argues that the exculpatory clause at issue is unenforceable because it is ambiguous in scope: Minnesota law imposes on defendants as the landowner and operator of a for-profit recreational activity a duty to exercise a “high degree of care” to ensure that invitees are not exposed to unreasonable risks of harm. Hanson v. Christensen, 275 Minn. 204, 145 N.W.2d 868, 873-74 (1966) ; see
Olmanson v. LeSueur Cty., 693 N.W.2d 876, 881 (Minn. 2005) ; Isler v. Burman, 305 Minn. 288, 232 N.W.2d 818, 821 (1975). This argument is without merit. First, the “ordinary negligence” clause in the Agreement is less, or at least no more ambiguous than the exculpatory clause held to be un ambiguous in Schlobohm, 326 N.W.2d at 922-23 (the term “all acts of active or passive negligence … specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only”), and Beehner, 636 N.W.2d at 827. Second, when the duty to exercise this high degree of care applies, it is an ordinary negligence duty to exercise “reasonable care, meaning care commensurate with the risks involved.” Hanson, 145 N.W.2d at 873. Thus, that the waiver of claims for “ordinary negligence” includes this type of duty for landowners and for-profit operators does not make the waiver ambiguous. We agree with the district court that the Agreement’s exculpatory clause is unambiguously limited to ordinary negligence. As in Beehner, Anderson was a voluntary participant in a recreational activity that does not “implicate[ ] a public or essential service.” 636 N.W.2d at 828.
B. Anderson claims defendants exhibited greater-than-ordinary negligence in the design, construction, supervision, and maintenance of the Bang the Gong obstacle. The district court properly rejected these claims.
On appeal Anderson first argues there was greater-than-ordinary negligence in the design of the Bang the Gong challenge based on expert testimony supporting her claim that a deeper level of water in the landing pit could have prevented her injury. However, Bang the Gong was not a new obstacle for the 2016 Rugged Maniac race. Rather it was tested, used in multiple previous events, and modeled on an earlier obstacle that was safely used for years. We agree with the district court that “[t]he fact that thousands of participants — many of whom undoubtedly outweighed Anderson — jumped into the landing pit without incident is compelling evidence that the water level was not unreasonably low.” Anderson, 496 F. Supp. 3d at 1285.
Anderson also argues the summary judgment record supports her claim of greater-than-ordinary negligence in the construction process for the 2016 event. Like the district court, we disagree. Rugged Races followed a detailed protocol when constructing Bang the Gong for this and other events, described in deposition testimony by Rugged Races’ Senior Vice President, Bradford Scudder, and a construction crew member from the 2016 race, Christian Melnik. The process involved digging a pit, removing debris, lining the pit with a tarp, filling it with water, and then constructing the platform participants would use to jump into the pit. The protocol requires crew members to inspect the pit three separate times before it is filled to ensure no rocks, roots, or other debris are present. They conduct two subsequent visual inspections after the pit is filled, including on the morning of the race. Although there was no supporting documentation, Melnik testified that he was not aware that the construction crew ever deviated from this protocol before, during, or after the 2016 race. Anderson, 496 F. Supp. 3d at 1274. The district court properly concluded that such evidence would be admissible as evidence of Rugged Races’ routine. See Fed. R. Evid. 406 (court may admit evidence of routine practice “regardless of whether it is corroborated or whether there was an eyewitness”).
Anderson concedes the admissibility of the Rule 406 evidence, but argues such “self-serving assertion[s]” are not dispositive. True enough. But this testimony by persons familiar with and involved in the process was strong evidence that Rugged Races complied with its established routine of carefully constructing and inspecting the obstacle before the race. Anderson’s disputed evidence of a submerged rock3 was insufficient to create a material issue of fact that would meet her burden to prove that defendants were liable for greater-than-ordinary negligence. Anderson, 496 F. Supp. 3d at 1280. We agree with the district court that Anderson offered “little more than speculation” supporting her contentions that the rock was present before the pit was filled and would have been discovered had the construction crew not acted with greater-than-ordinary negligence. Id. at 1284. To avoid summary judgment, the nonmoving party must provide “sufficient probative evidence” based on “more than mere speculation [or] conjecture.” Ball v. City of Lincoln, 870 F.3d 722, 727 (8th Cir. 2017) (quotation omitted).
We further agree with the district court that Anderson submitted insufficient evidence to establish that defendants acted with greater-than-ordinary negligence during or after the race. The district court estimated that Anderson was injured at approximately 1:00 pm.4 The court carefully reviewed when defendants would have learned that four other participants reported similar injuries before concluding that the record did not support Anderson’s contention that Rugged Races knew or should have known of a rock in the landing pit in time to take preventive action. 496 F. Supp. 3d at 1278-80. Anderson argues prior notice is irrelevant because Rugged Races created the danger. Rugged Races constructed the obstacle, but there is no evidence that Rugged Races placed a dangerous rock in the pit, only circumstantial evidence that it failed to discover a hidden danger. Under Minnesota law, landowners are not “insurers of safety of their patrons.” Hanson, 145 N.W.2d at 873. “Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition.” Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. Ct. App. 2000).
Here, the first two injuries were similar to Anderson’s and occurred earlier, but neither injury report mentioned a rock in the pit, only that the injured participant “landed wrong” or “jumped into … uneven terrain.” The other three injuries, including Anderson’s, occurred between 1:00-1:30pm. The injury reports reported there was a rock in the pit, but Rugged Races was not made aware of these reports in time to put it on notice that preventive action might be needed. See
Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 195 N.W.2d 432, 433 (1972) (no actual or constructive notice when hazard only present for 20 minutes). Because “an act or omission is not negligent unless the actor had knowledge or notice that it involves danger to another,” Rugged Races’ failure to remove the rock from the landing pit before Anderson’s injury is not a sufficient showing of greater-than-ordinary negligence. Rue v. Wendland, 226 Minn. 449, 33 N.W.2d 593, 595 (1948). And given the nature of the obstacle and the evidence of Rugged Races’ careful inspection procedures when creating the obstacle, the record does not provide sufficient evidence that any uneven terrain in the landing pit was the product of greater-than-ordinary negligence.
Finally, Anderson argues that Rugged Races failed to maintain the water level in the Bang the Gong pit to the depth required by its protocol, a further example of greater-than-ordinary negligence. The district court declined to consider this issue because Anderson first raised it at the summary judgment hearing. 496 F. Supp. 3d at 1285 n.11. As Anderson “did not sufficiently present [the] argument” to the district court, we will not consider it on appeal. Cole v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 533 F.3d 932, 936 (8th Cir. 2008).
III. Conclusion
In summary, our careful review of the record confirms the district court did not err in concluding Anderson failed to establish greater-than-ordinary negligence as a matter of law. Accordingly, her negligence claims are waived by the valid and enforceable exculpatory clause in the Race Participant Agreement. The judgment of the district court is affirmed.
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Notes:
1 The Honorable Patrick J. Schiltz, now Chief Judge of the United States District Court for the District of Minnesota
2 Defendants also argue (i) Anderson waived any claim based on greater-than-ordinary negligence by alleging only gross negligence in her Complaint; and (ii) Anderson’s claims are barred by the Minnesota doctrine of primary assumption of the risk. Given our resolution of Anderson’s appeal, we need not consider these issues.
3 Though there was no physical evidence of a submerged rock in the landing pit, Anderson and the other injured participants described “feeling a rock or similar object” when they landed. In ruling on defendants’ motion for summary judgment, the district court properly concluded it “therefore must assume that a rock was present in the landing pit of Bang the Gong.” Anderson, 496 F. Supp. 3d at 1278 n.7.
4 The district court estimated 1:00pm “based on the fact that Anderson did not report her injury until 1:15 pm, after she had hurt her foot, crawled out of the pit, reported her need for medical attention, waited for a medic to arrive, and been transported to the medical tent.” Anderson, 496 F. Supp. 3d at 1275 n.4.
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