Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park),

Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park),

Scott Barth, Plaintiff,

v.

Blue Diamond, LLC (d/b/a Blue Diamond MX Park), a Delaware corporation, The East Coast Enduro Association, Inc., a New Jersey corporation, and Delaware Enduro Riders, Inc., a Delaware corporation, Defendants.

C.A. No. N15C-01-197MMJ

Superior Court of Delaware

November 29, 2017

Submitted: November 17, 2017

Motions for Summary Judgment on the Issue of Primary Assumption of Risk

Batholomew J. Dalton, Esq., Laura J. Simon, Esq., Dalton & Associates, Larry E. Coben, Esq. (Argued), Gregory S. Spizer, Esq., Anapol Weiss, Attorneys for Plaintiff Scott Barth

Michael J. Logullo, Esq. (Argued), Rawle & Henderson LLP Attorney for Defendants The East Coast Enduro Association, Inc. and Delaware Enduro Riders, Inc.

George T. Lees III, Esq., Logan & Petrone, LLC Attorney for Defendant Blue Diamond, LLC

OPINION

The Honorable Mary M. Johnston.

FACTUAL AND PROCEDURAL CONTEXT

In this Opinion, the Court considers an apparent issue of first impression in Delaware. The question is whether the doctrine of primary assumption of risk applies in certain risky or dangerous sports-related activities in the absence of an express waiver of liability. This is a personal injury case. The plaintiff, Scott Barth, suffered serious injuries during an off-road dirt-bike race. Barth alleges that the race’s course was owned by Defendant Blue Diamond, LLC (“Blue Diamond”), co-sponsored by Defendant Delaware Enduro Riders (“DER”), and overseen by Defendant East Coast Enduro Association, Inc. (“ECEA”). Barth alleges that the Defendants’ negligent and reckless failure to properly mark the race’s course caused his injuries. Prior to the race, Barth signed a release of liability form.

DER and ECEA filed a Motion for Partial Summary Judgment as to Barth’s allegations of recklessness, which Blue Diamond adopted. DER and ECEA also jointly filed a Motion for Summary Judgment, while Blue Diamond separately filed its own. At the hearing on the motions, this Court denied the Motion for Partial Summary Judgment, holding that genuine issues of material fact exist regarding recklessness, particularly as to, among others things, “the adequacy of signage” and “the adequacy of warnings on the course.”[1] The Court declined to rule from the bench as to the Motions for Summary Judgment, instead instructing the parties to make additional submissions limited to the issue of the doctrine of primary assumption of risk, the central grounds for the three defendants’ motions.

DER and ECEA argue they are entitled to summary judgment for two reasons. First, Barth signed a waiver releasing them from liability. Second, Barth assumed the risk inherent in an off-road dirt-bike race. In its separate motion, Blue Diamond makes the same two arguments and adds a third-Barth was a member of the Blue Diamond Riding Club, and Blue Diamond did not owe Barth the same duty it would owe a common law business invitee, MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment is granted only if the moving party establishes that there are no genuine issues of material fact in dispute and judgment may be granted as a matter of law.[2] All facts are viewed in a light most favorable to the non-moving party.[3] Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if there is a need to clarify the application of law to the specific circumstances.[4] When the facts permit a reasonable person to draw only one inference, the question becomes one for decision as a matter of law.[5] If the non- moving party bears the burden of proof at trial, yet “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, ” then summary judgment may be granted against that party.[6]

ANALYSIS

Defendants argue that they are entitled to summary judgment because Barth signed a release of liability and, separately, because Barth assumed the risk of participating in the race. Both of these arguments are properly analyzed within the framework of the doctrine of primary assumption of risk.

In Delaware, “primary assumption of the risk is implicated when the plaintiff expressly consents ‘to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.'”[7] When primary assumption of risk exists, “the defendant is relieved of legal duty to the plaintiff; and being under no legal duty, he or she cannot be charged with negligence.”[8]

The Waiver Form Released the Defendants from Liability for Negligence, not Recklessness

Defendants argue they are entitled to summary judgment under a theory of express primary assumption of risk. Before participating in the race, Barth signed a release titled, “RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” It states that Barth:

HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE . . . racing associations, sanctioning organizations … track operators, track owners … herein referred to as “Releasees, ” FROM ALL LIABILITY TO THE UNDERSIGNED . . . FOR ANY AND ALL LOSS OR DAMAGE . . . ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

Barth asserts that the entire waiver agreement is unenforceable as an invalid contract due to lack of consideration. He further contends that even if the agreement is enforceable, it does not release Defendants from liability for recklessness.

To be enforceable under Delaware law, releases of liability “must be crystal clear and unequivocal” and “unambiguous, not unconscionable, and not against public policy.”[9] Barth does not (and cannot) argue that the waiver form at issue does not meet this standard. In Lynam v. Blue Diamond LLC, this Court found a virtually identical release form valid.[10]

Barth instead argues that the form is unenforceable due to lack of consideration. Barth bases his argument on this Court’s finding in Devecchio v. Delaware Enduro Riders, Inc.[11] In Devecchio, this Court deemed a waiver of liability unenforceable due to lack of consideration when the form stated that riders agreed to inspect the course, but the defendants admitted that, under the race’s sanctioning body’s rules, the riders were not allowed to inspect the course before the race. [12]

As in Devecchio, the release here contains an agreement that the race participants “have or will immediately upon entering any of such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS . . ., “[13] Unlike in Devecchio, however, no sanctioning body’s rule barred Defendants from performing an inspection of the course.

Instead, the rule in this case stated: “Participants are allowed to walk or bicycle the course prior to the event-with the club’s permission.” Barth argues that, despite this distinction, Devecchio should apply because Barth was never given permission or made aware of his responsibility to inspect the course. Notably, however, Barth never asked for permission to inspect the course. That Barth hypothetically may not have received permission to perform the inspection is not dispositive. Barth cannot claim he was denied permission if he never asked for it. Additionally, the “failure to apprise himself of, or otherwise understand the language of a release that he is asked to sign is insufficient as a matter of law to invalidate the release.”[14] The Court finds that Barth’s own failure to perform a permissive part of the agreement does not make the waiver invalid.

Pursuant to Lynam, however, the form exculpates the Defendants’ negligence, not recklessness. As in Lynam, the form here provides for a release of liability caused by “THE NEGLIGENCE OF THE ‘RELEASEES’ OR OTHERWISE.” As this Court determined in Lynam, “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”[15]

The Court finds that the waiver form releases the defendants from their liability for negligence, but not for recklessness.

Implied Primary Assumption of Risk Does Not Bar a Claim of Recklessness

It is undisputed that primary assumption of risk applies when the plaintiff signs a valid release of liability form.[16] But because Defendants argue that primary assumption of risk exists in addition to and independent of the waiver form, the Court must determine whether-and if so, how-to apply the defense beyond an express written agreement to waive liability.

Delaware courts have noted, paradoxically, that “depending upon the situation at hand, express consent may be manifested by circumstantial words or conduct.”[17]The illogic of “express consent” being “manifested by circumstantial words or conduct” can be resolved with the conclusion that Delaware recognizes an implied primary assumption of risk doctrine.[18]

Case law suggests that courts should find an implied primary assumption of risk only with respect to certain activities. Delaware cases have noted that primary assumption of risk commonly applies to “sports-related activities that ‘involv[e] physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.'”[19] Examples of such sports-related activities include:

(1) being a spectator at a sporting event such as a baseball or hockey game or tennis match where projectiles may be launched into the audience; (2) participating in a contact sporting event; (3) bungee jumping or bungee bouncing; (4) operating a jet-ski, or engaging in other noncompetitive water sports such as water-skiing, tubing, or white-water rafting; (5) drag racing; and (6) skydiving.[20]

The nature of the activity is pertinent to an analysis of primary assumption of risk. Otherwise, in the absence of a waiver of liability, the dangerousness of the activity would be irrelevant. The case law therefore suggests that the doctrine of primary assumption of risk applies to certain sports-related activities, even in the absence of an express waiver form. However, though Delaware seems to allow for the application of implied assumption of risk in certain sporting events, no Delaware case has provided a framework for applying the doctrine. This precise issue appears to be one of first impression.

The California case Peart v. Ferro, [21] which this Court cited in support of its observations on the prevalence of primary assumption of risk in dangerous sporting events, [22] provides a means of analysis. Under the Peart framework, courts must examine two things to determine whether an implied primary assumption of risk exists: the nature of the activity and the relationship between the parties.[23]

When examining the nature of the activity, courts consider:

what conditions, conduct or risks that might be viewed as dangerous in other contexts are so integral to or inherent in the activity itself that imposing a duty of care would either require that an essential aspect of the sport be abandoned, or else discourage vigorous participation therein. In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport.[24]

In examining the relationship of the parties, the court bears in mind that “the general duty of due care to avoid injury to others does not apply to coparticipants in sporting activities with respect to conditions and conduct that might otherwise be viewed as dangerous but upon examination are seen to be an integral part of the sport itself.”[25]

When analyzed within this framework, implied primary assumption of risk remains distinct from secondary assumption of risk. Secondary assumption of risk has been subsumed by Delaware’s contributory negligence statute.[26] It is therefore no longer available as a complete defense. Secondary assumption of risk exists when “the plaintiffs conduct in encountering a known risk may itself be unreasonable, because the danger is out of proportion to the advantage which he is seeking to obtain.”[27] In contrast, the focus for implied primary assumption of risk remains on the nature of the activity the plaintiff has consented to participate in and the actions of the defendants-not how the conduct of the plaintiff may have contributed to his injuries. Commentators also have noted that implied primary assumption of risk is distinct from secondary assumption of risk.[28]

The Court finds that implied primary assumption of risk is a valid affirmative defense to negligence. Because Barth signed a valid release of liability for Defendants’ negligence, the remaining issue in this case is whether implied primary assumption of risk is a valid affirmative defense to allegations of recklessness as well.

Though defendants do not owe a duty to protect a plaintiff from the risks inherent in an activity to which the doctrine of implied primary assumption of risk applies, “defendants do have a duty not to increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport.”[29]

Here, the Court has ruled as a matter of law that a genuine issue of material fact exists as to whether Defendants recklessly marked the course with inadequate signage. The Court finds there is a genuine issue of material fact as to whether the Defendants committed reckless conduct which increased the race’s risk of harm.[30] Further, the Court holds that the doctrine of implied primary assumption of risk does not insulate a tortfeasor from liability for intentional or reckless conduct. The Defendants’ Motions for Summary Judgment on this issue are denied.

Barth was a Business Invitee for the Race Despite his Blue Diamond Membership

Because Barth’s primary express and implied assumption of risk bar his claims of negligence, the Court need not reach this issue. However, for the sake of completeness, the Court finds that because Barth paid a fee to participate in the race, his relationship with Blue Diamond for the purposes of that event was that of a business invitee. His membership with the Blue Diamond Riding Club had no bearing on his participation in the race.

This fact distinguishes this case from Ketler v. PFPA, LLC, [31] upon which Blue Diamond relies. There, the plaintiff was a member of a fitness center and was injured while using a rowing machine. Because the fitness center was a “private-membership based business, ” the Court found the fitness center did not owe the plaintiff the same duty it “would owe to a common law business invitee or to the public at large.”[32]

In this case, participation in the race was not restricted to members of the Blue Diamond Riding Club. The race was open to any “American Motorcyclist Association Member.” Unlike the fitness center, Blue Diamond invited non-members to the race, and therefore owed participants the duties owed to business invitees.

CONCLUSION

The doctrine of implied primary assumption of risk does not insulate tortfeasors from liability for intentional or reckless conduct.

DER and ECEA’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART. The Court finds that the allegations of negligence against these defendants are barred under the doctrine of primary assumption of risk. There remains a genuine issue of material fact as to the allegations of recklessness against these defendants, Blue Diamond’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART. The Court finds that the allegations of negligence against this defendant are barred under the doctrine of primary assumption of risk. There remains a genuine issue of material fact as to the allegations of recklessness against this defendant. With the dismissal of the negligence allegations, the question of Blue Diamond’s status as a business invitee is moot.

IT IS SO ORDERED.

Notes:

[1] October 3, 2017 Tr. of Motions, 71:12-16.

[2] Super. Ct. Civ. R. 56(c).

[3] Burkhart v. Davies, 602 A.2d 56, 58-59 (Del. 1991).

[4] Super. Ct. Civ. R. 56(c).

[5] Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

[6] Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

[7] Helm v. 206 Massachusetts Avenue, LLC, 107 A.3d 1074, 1080 (Del. 2014) (quoting Fell v. Zimath, 575 A.2d 267, 267-68 (Del. Super. 1989)).

[8] Id.

[9] Lynam v. Blue Diamond LLC, 2016 WL 5793725, at *3 (Del. Super.).

[10] See id. The release in Lynam read:

I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s). . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . .. FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED… BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.

[11] 2004 LEXIS 444 (Del. Super.).

[12] Id.

[13] The corresponding clause in Devecchio read:

EACH OF THE UNDERSIGNED . . . acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he come in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use ….

[14] Id. This principle also dispenses with the argument that Barth did not have sufficient time to understand the release that he chose to sign.

[15] Id. (quoting W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)).

[16] See Lafate v. New Castle Cty., 1999 WL 1241074 (Del. Super.) (analyzing whether a signed waiver constitutes primary assumption of risk).

[17] Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 882 (Del. Super. 2005) (citing Croom v. Pressley, 1994 WL 466013, at *5 (Del. Super. 1994)).

[18] See id. at 882 n.30 (‘”Primary assumption of risk is akin to express or implied consent… .'” (quoting 57B Am. Jur. 2d. Negligence § 1010)). Storm also quoted the Restatement (Second) of Torts at length to explain assumption of risk generally. Id. at 881. That passage described a form of assumption of risk “closely related to” that acquired through “express consent” as one in which:

the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff.

Id.; see also McCormick v. Hoddinott, 865 A.2d 523, 529 (Del. Super. 2004) (“In the instant case there appears to be no evidence to support a claim that minor Plaintiff expressly or impliedly assumed any risk; therefore, an affirmative defense of assumption of risk based on primary assumption of risk cannot stand.”) (emphasis added).

[19] Helm, 107 A.3d at 1080 (quoting Storm, 898 A.2d at 883).

[20] Storm, 898 A.2d at 883 (citations omitted). Storm noted, however, that a “common theme” of these activities is that they frequently involve the signing of consent forms, suggesting the Court may have only meant to invoke them as another example of where express consent may apply. Id. However, a “common theme” is not a “common requirement”-spectators at sporting events do not sign releases of liability to view an event. Moreover, courts have found waiver of liability forms enforceable in contexts dissimilar to those listed above. See, e.g., Ketler v. PFPA, LLC, 2015 WL 3540187, at *2 (Del. Super. 2015) (finding a waiver form sufficient to invoke primary assumption of risk when the plaintiff snapped a cable on a rowing machine at the defendant’s gym). The Storm Court would have had no occasion to comment on the nature of the activity if it were not independently meaningful in the analysis.

[21] 13 Cal.Rptr.3d 885, 894 (Cal.App. 4 Dist. 2004).

[22] See Storm, 898 A.2d at 883 (citing Peart to define the sort of sports-related activities that typically raise the issue of primary assumption of risk).

[23] Peart, 13 Cal.Rptr.3d at 894 (citations omitted).

[24] Id.

[25] Id. at 894-95.

[26] Helm, 107 A.3d at 1080 (“[I]t is now accepted in Delaware that the concept of secondary assumption of risk is completely subsumed by the principles of comparative negligence.”).

[27] Fell v. Zimath, 575 A.2d 267, 268 (Del. Super. 1989).

[28] See Restatement (Second) of Torts § 496A (1979) (distinguishing a description of implied primary assumption of risk from a secondary assumption of risk, “in which the plaintiffs conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence”); 57B Am. Jur. 2d Negligence § 1010 (“Primary assumption of risk is akin to express or implied consent, and relieves the defendant of any obligation to exercise care for the injured person’s protection, including situations where an injured person, having knowledge of a hazard, continued voluntarily to encounter it. Secondary assumption of risk is akin to contributory negligence . . . .”).

[29] Peart, 13 Cal.Rptr.3d at 894.

[30] This conclusion is in line with Delaware decisions that applied similar logic under framework of a different name. See Farrell v. University of Delaware, 2009 WL 3309288, at *3 (Del. Super.) (finding persuasive the New York Supreme Court’s rationale that “[a]lthough [a] rink could not be liable for harms caused by the inherent dangers of skating or by unpreventable events, the court considered assumption of risk inapplicable to injuries resulting from ‘the reckless actions of another skater which the defendant, by adequate supervision, could have prevented.'”(quoting Shorten v. City of White Plains, 637 N.Y.S.2d 791, 796 (N.Y.App.Div.1996)); Lafate v. New Castle Cty., 1999 WL 1241074, at *4 (Del. Super. 1999) (denying summary judgment, in part because “it would not be within the normal expectation of the health risk of playing basketball that a supervising employee would place a metal bar within normal head range between two basketball courts” in spite of an express release of liability).

[31] 2015 WL 3540187 (Del. Super 2015).

[32] Id. at*l.


Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.

Release thrown out because of New York’s anti-release statute and condition causing plaintiff’s injury was the risk was “un-assumed, concealed or unreasonably increased” eliminating assumption of the risk claim.

McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

State: New York, Supreme Court of New York, Kings County

Plaintiff: Meghan McDonald

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: negligence,

Defendant Defenses: Release and Assumption of the Risk

Holding: for the Plaintiff

Year: 2016

Summary

Another case where it appears, the court was more on the plaintiff’s side then neutral. However, you must play with the cards you are dealt. Here a person injured at a climbing gym survived a motion for summary judgment because the release violated New York’s release law, and she could not assume the risk of the mats separating because it was not obvious or known to her.

Facts

The plaintiff was an employee of another climbing wall business. She was the coach of the climbing team there. She was at the defendant’s climbing wall business either to coach her team or to climb personally, which were in dispute. While climbing on an overhang she fell and her foot went between the mats causing her injury.

The plaintiff did not pay to climb because the clubs had reciprocal agreements allowing employees to climb at other gyms for free. The mats were Velcroed together. The plaintiff sued. The defendant club filed a motion for summary judgment, and this is the court’s response to that motion.

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

The defendant argued the release should stop the plaintiff’s lawsuit, and she assumed the risk of her injury.

The plaintiff argued New York General Obligations Law (GOL) §5-326 made the release unenforceable.

The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect

New York General Obligations Law (GOL) §5-326 has been held to not apply to teaching, Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). Because the plaintiff was there with students, the defendant argued the statute did not apply.

However, the plaintiff argued she was not teaching, just climbing with friends who were former students.

In support of her position that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work.

The other defense to New York General Obligations Law (GOL) §5-326 is there was no fee paid by the plaintiff to climb at the defendant gym. She was there because of the reciprocal program in place with her employer.

The court agreed she was not teaching and found she had paid a fee to climb at the defendant’s gym. Because the program was part of her employment compensation, she had paid a fee by taking advantage of the opportunity as an employee.

In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of their employment and thus could be considered compensation.

The final defense was assumption of the risk. The plaintiff said she had never been to that area of the gym before, however, she did scan the area before climbing.

Under NY law, the assumption of risk defense is defined as:

The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”

By engaging in the activity or sport the plaintiff gives consent to the risks and limits the duty owed by the defendant. However, the risks of the activity, according to this court must be “fully comprehended or perfectly obvious.” The court then determined “Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks.”

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’

The Velcro connection holding the mats together was an injury for the jury to determine because the court found the condition was a concealed risk.

So Now What?

It is pretty skanky (legal word) for an employee of one gym, climbing for free, to sue another gym. I suspect the lawsuit was probably a subrogation claim where her health insurance was attempting to recover for her medical bills. However, that is just speculation.

New York General Obligations Law (GOL) §5-326 is read differently by ever judge that reviews it. Some simply say it does not apply and allows the release to prevail. Any court that seems to do an analysis of the law seems to rule on the side of the plaintiff lately. The late is left over from the days when consumers did not know what a release was and were caught off guard when they risked their neck in gyms.

However, the chances of it being repealed are slim, too many plaintiffs use the law so having a recreation business in New York requires more work on the part of the recreation provider to prove assumption of the risk.

Video’s, lengthy assumption of the risk agreements outlining the known and unknown risks and more in-depth classes for beginners and new people at the gym will be required in this jurisdiction.

Can you see this climbing coach being told she must take a one-hour class on climbing because she has never been to the gym before?

What do you think? Leave a comment.

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McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

McDonald v. Brooklyn Boulders, LLC., 2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

[**1] Meghan Mcdonald, Plaintiff, – against – Brooklyn Boulders, LLC., Defendant. Index No. 503314/12

503314/12

SUPREME COURT OF NEW YORK, KINGS COUNTY

2016 N.Y. Misc. LEXIS 5211; 2016 NY Slip Op 32822(U)

April 12, 2016, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: climbing, mat, climb, team, rock climbing, recreational, leave to amend, affirmative defense, risk doctrine, instructional, bouldering, void, appreciated, concealed, teaching, training, wasn’t, amend, sport’, Rock, gym, matting, reciprocal agreement, public policy, dangerous condition, unreasonably, amusement, watching, unaware, advice

JUDGES: [*1] PRESENT: HON. MARK I. PARTNOW, J.S.C.

OPINION BY: MARK I. PARTNOW

OPINION

Upon the foregoing papers, defendant Brooklyn Boulders, LLC (defendant or Brooklyn Boulders) moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff Meghan McDonald’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.

[**2] Background

Plaintiff is employed as a program director and head coach of a youth rock climbing team at The Rock Club, an indoor rock climbing gym in New Rochelle, New York and has been so employed since 2006. On September 1, 2011, plaintiff went to Brooklyn Boulders with some of the members of her youth climbing team and other adults. Brooklyn Boulders is an indoor rock climbing and bouldering facility located in Brooklyn, New York. Plaintiff testified that this trip was a treat for her team and that she would be climbing that day too. It is undisputed that plaintiff signed a waiver before she began climbing and that she did not pay an entry fee pursuant to a reciprocal agreement in place between The Rock Club and Brooklyn Boulders as well as other rock climbing facilities. After [*2] approximately one and a half hours of bouldering with her team, plaintiff went to an area of the bouldering wall known as The Beast, which is very challenging in that it becomes nearly horizontal for some distance. It was her first time on the Beast, although she had been to Brooklyn Boulders on prior occasions. Plaintiff testified that she visually inspected the area below the Beast before she began her climb. Lance Pinn, the Chief Marketing Officer, President and founder of Brooklyn Boulders testified that there was foam matting system in place, with matting wall to wall in the area of the Beast. The largest pieces available were 9 feet by 7 feet so the area where the foam pieces met when placed on the ground was covered with Velcro to keep the foam matting pieces flush together.

[**3] Plaintiff finished her upward climb and then climbed down as far as she could and then looked down below to make sure there were no shoes in her way and that her spotter was out of the way. She stated that she knew that there were mats underneath so she jumped down a distance of approximately five feet. Her right foot landed on the mat but her left foot landed on the Velcro strip where two floor mats met. [*3] She testified that her left foot went through the Velcro into a space between the two mats. Plaintiff sustained an ankle fracture as a result and required surgeries and physical therapy.

Brooklyn Boulders’ Motion

Brooklyn Boulders moves for an order: 1) pursuant to CPLR §3212 granting summary judgment and the dismissal of plaintiff’s complaint against defendant; and 2) pursuant to CPLR §3025 (b) granting defendant leave to amend its answer to the complaint to include an additional affirmative defense.

Defendant argues that the liability waiver that plaintiff signed when she entered the facility releases it from liability. Defendant maintains that plaintiff was an expert climber and coach and understood the meaning of the waiver and appreciated the assumption of risk involved in the activity that she was engaged. Defendant also points out that she did not pay a fee to climb that day based upon the reciprocal program in place with other climbing facilities. Defendant claims that plaintiff was instructing her students that day as they observed her climbing and point to her testimony as follows:

[**4] Q: And were you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question [*4] they would ask me hey, should I do this or do this or what do you think of this move I always give advice. (Page 30, lines 12-17).

Q. Did you ever teach any or give any instruction there?

A. Just of terms of like in my kids I probably give instruction everywhere I go. There are so many people that climb at Brooklyn Boulders that are total beginners. I’m often spotting brand new people and telling them how to spot one another. (Page 45, lines 5-12).

Defendant notes that although General Obligations Law (GOL) §5-326 renders contract clauses which release certain entities from liability void as against public policy, activities which are “instructional” as opposed to recreational are found to be outside the scope of GOL §5-326. Defendant maintains that here, plaintiff was at Brooklyn Boulders to instruct her team members and thus GOL §5-326 is not applicable. Moreover, defendant argues that the waiver at issue was explicit, comprehensive and expressly provided that Brooklyn Boulders was released from liability for personal injuries arising out of or connected with plaintiff’s participation in rock climbing.

In support of its motion, defendant submits the signed waiver which states, in pertinent part:

I acknowledge [*5] that climbing on an artificial climbing wall entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential [**5] qualities of the activity. I have examined the Climbing Wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the Climbing Wall, including but not limited to:

a:. All manner of injury resulting from my falling off or from the Climbing Wall and hitting the floor, wall faces, people or rope projections, whether permanently or temporarily in place, loose and/or damaged artificial holds, musculoskeletal injuries and/or overtraining; head injuries; or my own negligence . . . I further acknowledge that the above list is not inclusive of all possible risks associated with the Climbing Wall and related training facilities and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release and Indemnification . . .

Defendant also argues that since plaintiff did not pay a fee to climb that day that her activity was [*6] outside the scope of GOL §5-326.

Next defendant argues that the assumption of risk doctrine bars plaintiff’s claims because, as a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation in such event.

Finally, defendant argues that it should be allowed to amend its answer to assert the affirmative defense of release. Defendant contends that it was unaware of the existence of the release and waiver when it served its answer. Moreover, defendant contends that plaintiff will not be prejudiced because she was, in fact, questioned about the release that she signed during her deposition.

[**6] Plaintiff opposes defendant’s motion arguing that General Obligations Law §5-326 renders the waiver and release that she signed void. She points out that defendant is attempting to circumvent this law by asserting that the activity in which plaintiff was involved was instructional as opposed to recreational and misstates her testimony in an attempt to mislead the court. Plaintiff contends that such behavior should be sanctioned. In support of her position [*7] that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work. (Page 62, lines 5-13). She further points to the following testimony:

Q: In September of 2011 when you went there on the date in question what was your purpose of being there?

A: I went there with a handful of kids who are on my climbing team, but it wasn’t a specific training day. Usually when we go it would be for training but this was just like a fun day. I was going to climb with them.

Q: And were they climbing around you.

A: Yeah, they were.(page 29, lines 14-25).

Q: And were you supervising them?

A: I wasn’t their active supervisor. I’m a coach though so I’m always watching what they do. But this was one of the few times that I was actually going to be climbing so it was kind of a treat for them I guess to be able to climb with me.

[**7] Q: Were they watching you?

A: A few of them were watching me yeah.

Q: And were [*8] you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice (page 30, lines 2-17).

Plaintiff also contends that defendant incorrectly argues that GOL §5-326 does not apply because she cannot be classified a user since she did not pay to climb that day. In this regard, plaintiff contends that she is indeed a user and the law is applicable because there was a reciprocal agreement between the gym at which she was employed and Brooklyn Boulders pursuant to which employees were not required to pay a fee to use either gym. Thus, she contends the value of the reciprocity agreement is the compensation.

Next, plaintiff argues that the assumption of risk doctrine is not applicable where the risk was un-assumed, concealed or unreasonably increased. Plaintiff argues that the question of whether the gap in the mats at Brooklyn Boulders is a commonly appreciated risk inherent in the nature of rock climbing necessitates denial of the summary judgment motion. She claims that she did not assume the risk that there would be a gap in the matting that was in [*9] place as protection from a fall. Moreover, plaintiff maintains that defendant fails to proffer any evidence demonstrating when the mats were last inspected prior to plaintiff’s accident.

Plaintiff argues that issues as to whether dangerous or defective conditions exist on property and whether the condition is foreseeable can only be answered by a jury. Thus, she [**8] contends that whether the condition of the mats was dangerous and/or defective is an issue of fact and that defendant has failed to proffer any evidence that the mats were in a reasonably safe condition.

Finally, plaintiff opposes defendant’s request to amend its answer to add the affirmative defense of waiver. Plaintiff argues that the existence of the waiver was known and that it is disingenuous at best to assert otherwise. Plaintiff contends that this request, post note of issue, is highly prejudicial to plaintiff.

In reply, defendant argues that plaintiff’s demand for sanctions lacks merit and that plaintiff’s testimony establishes that she was in fact, instructing her students when her accident occurred. Defendant contends that the waiver applies. Next defendant claims that as far as inspection of its equipment it had a [*10] route setting department that checked its walls and mats and that bouldering climbers were responsible for enuring their own safety when climbing. Finally, defendant argues that the assumption of risk doctrine applies and that plaintiff visually inspected the area before the accident and that the Velcro covers were visible and moreover, she had the option to use additional mats underneath her while climbing. Defendant further contends that the mats did not constitute a dangerous condition. Finally, Brooklyn Boulders reiterates its request for leave to amend its answer to assert the affirmative defense.

[**9] Discussion

Leave to Amend

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640, 1 N.Y.S.3d 307 [2015]; see Jones v LeFrance Leasing Ltd. Partnership, 127 AD3d 819, 821, 7 N.Y.S.3d 352 [2015]; Rodgers v New York City Tr. Auth., 109 AD3d 535, 537, 970 N.Y.S.2d 572 [2013]; Schwartz v Sayah, 83 AD3d 926, 926, 920 N.Y.S.2d 714 [2011]). A motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118, 1119, 913 N.Y.S.2d 339 [2010]). However, where amendment is sought after the pleader has filed a note of issue, “a trial court’s discretion to grant a motion to amend should be exercised with caution” (Harris v Jim’s Proclean Serv., Inc., 34 AD3d 1009,1010, 825 N.Y.S.2d 291 [3d Dept 2006]).

Here, while the court is not satisfied with counsel’s explanation that he was unaware of the [*11] existence of the release and waiver signed by plaintiff at the time that the original answer was served, the court notes that plaintiff was questioned about the release and waiver during her May 6, 2014 deposition so the court finds that there is no surprise of prejudice in allowing defendant leave to serve its amended answer and assert the affirmative defense of release and waiver. Accordingly, that branch of defendant’s motion seeking leave to amend its answer to the complaint to include this affirmative defense is granted.

[**10] General Obligations Law §5-326

GOL §5-326 states that:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall [*12] be deemed to be void as against public policy and wholly unenforceable.

Such contracts or agreements are void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. “The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F.Supp.2d 92, 99 [1998]; McDuffie v Watkins Glen Int’l, 833 F. Supp. 197, 202 [1993] ). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463, 643 N.Y.S.2d 668 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428 [1994] ), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145, 484 N.Y.S.2d 719 [1985] ), have been found to be outside the scope of the statute. “In assessing whether a facility is instructional or recreational, courts have [**11] examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” (Lemoine v Cornell Univ., 2 AD3d 1017, 1019, 769 N.Y.S.2d 313 [2003], lv denied 2 NY3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2004]). In cases involving a mixed use facility, courts have focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Id. At 1019; see Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, 32 F Supp 2d at 99). Where [*13] a facility “promotes . . . a recreational pursuit, to which instruction is provided as an ancillary service,” General Obligations Law § 5-326 applies even if the injury occurs while receiving instruction (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 249, 835 N.Y.S.2d 170 [2007]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175, 710 N.Y.S.2d 54 [2000]).

Here, defendant asserts that GOL §5-326 is not applicable because plaintiff was at Brooklyn Boulders to instruct her team members. The court disagrees. Plaintiff’s testimony establishes that she was at Brooklyn Boulders with her team for a day of fun and not to teach them how to climb. Her testimony that she would give advice to the students if they asked does not rise to the level of providing rock climbing instruction on that day. Moreover, the court notes that the cases invloving the exemption for instrctional activities generally involve the person being instructed sustaining an injury and not the person who was providing the instruction. In addition, the court finds defendants’s argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, [**12] where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of [*14] their employment and thus could be considered compensation. Accordingly, the court finds that the release and waiver signed by plaintiff is void pursuant to GOL §5-326.

Assumption of Risk

The assumption of the risk defense is based on the proposition that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; Paone v County of Suffolk, 251 AD2d 563, 674 N.Y.S.2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Rosenbaum v Bayis Ne’Emon Inc., 32 AD3d 534, 820 N.Y.S.2d 326 [2d Dept 2006]; Colucci v Nansen Park, Inc., 226 AD2d 336, 640 N.Y.S.2d 578 [2d Dept 1996]). A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 N.Y.S.2d 499 [2d Dept 2006]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 N.Y.S.2d 663 [2d Dept 1992]). It is well settled that “awareness of [**13] risk is not to be determined in a vacuum. It is, rather, to [*15] be assessed against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-658, 541 N.E.2d 29, 543 N.Y.S.2d 29 [1989]; Turcotte v Fell, 68 NY2d 432, 440, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]; Latimer v City of New York, 118 AD3d 420, 421, 987 N.Y.S.2d 58 [2014]). When applicable, the assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care” (Turcotte v Fell, 68 NY2d at 439). Thus, “a gym or athletic facility cannot evade responsibility for negligent behavior ‘by invoking a generalized assumption of risk doctrine as though it was some sort of amulet that confers automatic immunity’ (Jafri v Equinox Holdings, Inc., 2014 N.Y. Misc. LEXIS 5330, 4-5 [Sup. Ct, New York County quoting Mellon v Crunch & At Crunch Acquisition, LLC, 32 Misc 3d 1214[A], 934 N.Y.S.2d 35, 2011 NY Slip Op 51289[U] [Sup Ct, Kings County 2011]; Livshitz v United States Tennis Assn. Natl. Tennis Ctr., 196 Misc 2d 460, 466, 761 N.Y.S.2d 825 [Sup Ct, Queens County 2003]).

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’ (Morgan, 90 NY2d at 485. quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998 [1992]; Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 134 AD3d 887, 889, 22 N.Y.S.3d 467 [2d Dept 2015]; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 678, 961 N.Y.S.2d 178 [2d Dept 2013]). Participants, however, do not assume risks which have been unreasonably increased or [**14] concealed over and above the usual dangers inherent in the activity (see Morgan, 90 NY2d at 485; Benitez, 73 NY2d at 657-658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113 [2002]).

In this regard, the court finds that plaintiff has raised a question of fact regarding whether the condition of the mats, with the Velcro connection, increased the risk in the danger [*16] of the activity and caused a concealed dangerous condition. Thus it cannot be said that plaintiff assumed the particular risk that was present and caused her injuries.

Based upon the foregoing, that branch of Brooklyn Boulders motion seeking summary judgment dismissing plaintiff’s complaint is denied.

The foregoing constitutes the decision and order of the court.

ENTER,

/s/ Mark I Partnow

J. S. C.

HON. MARK I PARTNOW

SUPREME COURT JUSTICE


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

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

Yulissa Rodriguez v. Brownstone Exploration & Discover Park, LLC

FBTCV166055234S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

2017 Conn. Super. LEXIS 844

May 4, 2017, Decided

May 4, 2017, Filed

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

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

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

OPINION

MEMORANDUM OF DECISION

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

Standards for Deciding a Motion to Strike Special Defenses

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

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

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

The First Special Defense States the Defense of Waiver

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

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

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

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

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

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

(Emphasis added.)

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

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

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

The Second Special Defense States the Defense of Release

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

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

KRUMEICH, J.