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What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire, you have no coverage.

You either have to create an absolutely fool proof system or take your release
online. If they don’t sign they don’t climb!

Colony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d
399; 2009 N.H. LEXIS 51

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Colony Insurance Company

Defendant: Dover Indoor Climbing Gym& a.

Plaintiff Claims: There was no insurance coverage because the insured did not get a release signed by the injured claimant

Defendant Defenses: The insurance policy endorsement requiring a release to be signed was ambiguous

Holding: For the Plaintiff Insurance Company

Year: 2009

This is a scary case, yet the outcome is correct. The plaintiff insurance company issued a policy to the defendant climbing gym. An endorsement (an added amendment to the contract) to the policy said there would only be coverage if the gym all customers sign a release.

 An endorsement to the policy stated: “All ‘participants’ shall be required to sign a waiver or release of liability in
your favor prior to engaging in any ‘climbing activity.’ “It further stated: “Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you.”

A climber came to the gym with a group of friends. The gym asked everyone if they had a release on file, and no one said no. (Yes really stupid procedures!) Bigelow was part of the group and did not have a release on file and had not signed a release. While climbing Bigelow fell and was injured.

Bigelow accompanied friends to the climbing gym, but did not sign a waiver. He testified that he was never asked to sign a waiver; the gym owner’s affidavit stated that the owner asked the group of climbers if they had waivers on file and received no negative answers. It is undisputed; however, that Bigelow did not sign a waiver or release. While climbing, Bigelow fell and sustained serious injuries.

The defendant climbing gym put the plaintiff insurance company on notice of the claim. When the insurance company found out no release was signed, the insurance company filed a declaratory judgment motion. A declaratory judgment is a way to go into a court and say there is no coverage under this policy because there was no release. It is an attempt to be a quick interpretation of the contract so the bigger issue can be resolved quickly.

The gym then put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that the gym’s failure to obtain a release from Bigelow absolved Colony of any duty to defend or indemnify the gym.

Both parties filed motions for summary judgment. The trial court granted the climbing gym’s motion for summary judgment saying the endorsement requiring the signed release was ambiguous. The ambiguity was created because the insurance company had not provided the gym with a sample waiver to use.

The trial court found that Colony’s failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. The trial court therefore denied Colony’s motion for summary judgment, and granted the defendants’ cross-motion for summary judgment. 

This analysis by the court was absurd. Releases need to be written for the gym, for the gym’s clients and for the state law of the state where it is to be used. A “sample” release is a guaranteed loser in most cases. However, I suspect the court was looking for anyway it could find to provide coverage for the gym.

The trial court’s ruling meant the plaintiff insurance company had to provide coverage to the defendant for any claims made by the injured climber Bigelow.

The insurance company appealed the decision. New Hampshire does not have an intermediary appellate court system so the appeal went to the New Hampshire Supreme Court.

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

Insurance policies are contracts and are interpreted as such. However, because have been written in a specific way and are always offered on a take it or leave it basis, as well as the fact the insurance company has all the cards (money) insurance policies have additional legal interpretations in addition to contract law.

The New Hampshire Supreme Court started its analysis by looking at how insurance policies are interpreted. That means the policy is read as a whole objectively. Terms are given their natural meaning, meaning there is no special interpretation of any term, and if the policy is clear and unambiguous is it enforced. No special reading of the policy is allowed based on any party to the policy’s expectations.

We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, we accord the language its natural and ordinary meaning. We need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, our search for the parties’ intent is limited to the words of the policy.

The burden of proving that no insurance coverage exists as defined by the policy rests on the insurance company. That means coverage exists under the policy unless the insurance company can prove no coverage was written.

If an insurance company wants to limit its coverage, it is allowed to do so. However, that limitation must be clear and unambiguous. An ambiguity exists if a reasonable disagreement exists between the insurance company and the policyholder and that disagreement could lead to two or more, interpretations.

Although an insurer has a right to contractually limit the extent of its liability, it must do so “through clear and unambiguous policy language. Ambiguity exists if “reasonable disagreement between contracting parties” leads to at least two interpretations of the language. 

Ambiguities will be examined in the appropriate context and the words construed in their plain, ordinary and popular meaning. If the interpretation of the ambiguity favors the policyholder, then the coverage will favor the insured.

In determining whether an ambiguity exists, we will look to the claimed ambiguity, consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. 

If, however, the language in the policy is clear, the court will not bend over backward or as written in this case “perform amazing feats of linguistic gymnastics” to find an ambiguity and create coverage.

Where, however, the policy language is clear, this court “will not perform amazing feats of linguistic gymnastics to find a purported ambiguity” simply to construe the policy against the insurer and create coverage where it is clear that none was intended. 

The court then looked at the determination of the trial court which found an ambiguity because the insurance company did not provide a sample insurance policy. The Supreme Court found that was an incorrect interpretation of the policy. Even the defendant climbing gym agreed with the court on this
issue.

Even the gym, however, contends that the trial court “reached the correct result for the wrong reasons.” Thus, the gym does not argue that the endorsement creates an ambiguity by its failure to provide the insured with a sample waiver form, but, rather, that the exclusionary language is ambiguous because it states that participants shall “be required” to sign waivers as opposed to mandating that the gym obtain signed waivers.  

The court then applied to the law of New Hampshire in interpreting insurance policies to the facts of this case. The court found the language requiring a release was clear and that a reasonable person could only read it.

The clear meaning of the policy language is that the gym is required to actually obtain waivers from climbing participants. The gym’s interpretation would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. The gym’s interpretation is unreasonably narrow, and is therefore not the type of alternative interpretation that renders policy language ambiguous.

Simply put the policy requires the defendant climbing gym to have everyone sign a release. If no release is signed, there was no coverage for the gym. The trial court was overturned, and the climbing gym faced the claims of the injured climber without insurance coverage.

So Now What?

One of the first cases I was involved with was very similar. A Montana stable was insured by an insurance company with an endorsement just as this one; all riders were required to sign a release. In Montana all guides, including horseback guides had to be licensed by the state. A state employee was checking out the
stable and found the releases. In Montana, you cannot use a release. (See States that do not Support the Use of a Release andMontana Statute Prohibits Use of a Release)

The state employee had the stable quit using the release, or they would lose their license to operate in Montana. A rider was injured and sued the stable, and the insurance company denied coverage. I was contacted by the law firm representing the insurance company and was floored by the facts and how the insurance company could deny coverage when it violated state regulations.

However, in that situation as well as this one, there is not much you can do to get around the situation if the policy clearly states you must have a release signed. In the Montana case, the stable owner should have immediately contacted his insurance company when he was told he could not use a release and pay to have the endorsement removed or found another insurance company to write him a policy.

In this case, a proper procedure should have been put in place to confirm signed releases rather than relying on the honesty of someone walking through the doors to the gym.

When you purchase insurance make sure you and your insurance agent are speaking clearly to each other, and you both understand what you are looking for. When the policy arrives, read the policy or pay a professional to read the policy for you looking for the coverage’s you need as well as looking for problems with the coverage.

If you ask the agent or broker to clarify the coverage you are wanting, to make sure you get that clarification in writing (or an email), so you can take that to court if necessary.

Most importantly create a system to make sure that everyone who comes to your facility, activity or business when you use a release, signs a release.

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

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

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Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw,
#AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps,
#ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw,
#FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation,
#IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence,
#OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw,
#Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer,
#RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,
#Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer,
#RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding,
#SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, gym, ambiguity,
coverage, policy language, climbing, insurer, summary judgment, unambiguous,
insurance policy, ambiguous, construe, endorsement, reasonable person, insured,
absurd, question of law, matter of law, insurance coverage, reasonable
expectations of coverage, clear meaning, ordinary meaning, words used, burden of
proving, contracting parties, contractually, policyholder, objectively,
linguistic, gymnastics, purported, Climbing Gym, Release,


 

 

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Colony Insurance Company v. Dover Indoor Climbing Gym, 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

Colony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

Colony Insurance Company v. Dover Indoor Climbing Gym & a.

No. 2008-759

SUPREME COURT OF NEW HAMPSHIRE

158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

March 18, 2009, Argued

April 24, 2009, Opinion Issued

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

1. Insurance–Policies–Construction The interpretation of insurance policy language is a question of law for the court to decide. The court construes the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, the court accords the language its natural and ordinary meaning. The court need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, the court’s search for the parties’ intent is limited to the words of the policy.

2. Insurance–Proceedings–Burden of Proof The burden of proving that no insurance coverage exists rests squarely with the insurer.

3. Insurance–Policies–Ambiguities Although an insurer has a right to contractually limit the extent of its liability, it must do so through clear and unambiguous policy language. Ambiguity exists if reasonable disagreement between contracting parties leads to at least two interpretations of the language. In determining whether an ambiguity exists, the court will look to the claimed ambiguity, consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. Where, however, the policy language is clear, the court will not perform amazing feats of linguistic gymnastics to find a purported ambiguity simply to construe the policy against the insurer and create coverage where it is clear that none was intended.

4. Insurance–Policies–Construction When a climbing gym’s insurance policy stated, “All participants shall be required to sign a waiver or release of liability in your favor prior to engaging in any climbing activity,” the clear meaning of the policy language was that the gym was required to actually obtain waivers from climbing participants. The gym’s interpretation that a reasonable person would believe that coverage existed so long as the gym had a policy of requiring waivers regardless of whether it actually obtained waivers would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. Because the policy required the gym to obtain waivers from all participants, the failure to do so in the case of an injured climber rendered coverage under the policy inapplicable to his claims.

COUNSEL: Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally), for the plaintiff.

Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and orally), for defendant, Dover Indoor Climbing Gym.

Shaheen & Gordon, P.A., of Dover, for defendant, Richard Bigelow, filed no brief.

JUDGES: DUGGAN, J. BRODERICK, C.J., and DALIANIS, J., concurred.

OPINION BY: DUGGAN

OPINION

[**400]   [*629]  Duggan, J. The plaintiff, Colony Insurance Company (Colony), appeals an order of the Superior Court (McHugh, J.) denying its motion for summary judgment and granting that of the defendants, Dover Indoor Climbing Gym (the gym) and Richard Bigelow. We reverse and remand.

The trial court found, or the record supports, the following facts. Colony issued a commercial general liability insurance policy to the gym, which was in effect from January 5, 2007, to January 5, 2008. An endorsement to the policy stated: “All ‘participants’ shall be required to sign a waiver or release of liability in your favor prior to engaging in any ‘climbing activity.’ ” It further stated: “Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you.”

On August 14, 2007,  [***2] Bigelow accompanied friends to the climbing gym, but did not sign a waiver. He testified that he was never asked to sign a waiver; the gym owner’s affidavit stated that the owner asked the group of climbers if they had waivers on file and received no negative answers. It is undisputed, however, that Bigelow did not sign a waiver or release. While climbing, Bigelow fell and sustained serious injuries. The gym then put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that the gym’s failure to obtain a release from Bigelow absolved Colony of any duty to defend or indemnify the gym.

Both Colony and the defendants filed motions for summary judgment, which the trial court addressed in a written order. The trial court found that Colony’s failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. The trial court therefore denied Colony’s motion for summary judgment, and granted the defendants’ cross-motion  [**401]  for summary judgment. This appeal followed.

[*630]  On appeal, Colony argues that the trial court erred in finding that the endorsement was ambiguous, and contends that the  [***3] gym’s failure to obtain a waiver from Bigelow renders the policy inapplicable as to his claims. Alternatively, Colony argues that even if the endorsement is ambiguous, the gym is not entitled to coverage because it had actual knowledge of the policy’s waiver requirement.

[HN1] In reviewing the trial court’s grant or denial of summary judgment, we consider the evidence, and all inferences properly drawn from it, in the light most favorable to the non-moving party. Everitt v. Gen. Elec. Co., 156 N.H. 202, 208, 932 A.2d 831 (2007); Sintros v. Hamon, 148 N.H. 478, 480, 810 A.2d 553 (2002). If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480. We review the trial court’s application of the law to the facts de novo. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480.

[1]  [HN2] The interpretation of insurance policy language is a question of law for this court to decide. Godbout v. Lloyd’s Ins. Syndicates, 150 N.H. 103, 105, 834 A.2d 360 (2003). We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading  [***4] of the policy as a whole. Id. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, we accord the language its natural and ordinary meaning. Id. We need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, our search for the parties’ intent is limited to the words of the policy. Id.

[2, 3] In this case, the gym argues that the policy is ambiguous and Colony maintains that it is not.  [HN3] The burden of proving that no insurance coverage exists rests squarely with the insurer. Curtis v. Guaranty Trust Life Ins. Co., 132 N.H. 337, 340, 566 A.2d 176 (1989); see RSA 491:22-a (1997).  [HN4] Although an insurer has a right to contractually limit the extent of its liability, it must do so “through clear and unambiguous policy language.” Id. (quotation omitted). Ambiguity exists if “reasonable disagreement between contracting parties” leads to at least two interpretations of the language. Int’l Surplus Lines Ins. Co. v. Mfgs. & Merchants Mut. Ins. Co., 140 N.H. 15, 20, 661 A.2d 1192 (1995); Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 771, 423 A.2d 980 (1980). In determining whether an ambiguity exists, we will look to the claimed ambiguity,  [***5] consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. Int’l Surplus, 140 N.H. at 20. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. Id. Where, however, the policy language is clear, this court “will not  [*631]  perform amazing feats of linguistic gymnastics to find a purported ambiguity” simply to construe the policy against the insurer and create coverage where it is clear that none was intended. Hudson v. Farm Family Mut. Ins. Co., 142 N.H. 144, 147, 697 A.2d 501 (1997); Curtis, 132 N.H. at 342.

The trial court found that the endorsement requiring waivers is ambiguous because Colony did not provide the gym with a sample waiver. Even the gym, however, contends that the trial court “reached the  [**402]  correct result for the wrong reasons.” Thus, the gym does not argue that the endorsement creates an ambiguity by its failure to provide the insured with a sample waiver form, but, rather, that the exclusionary language is ambiguous because it states that participants shall “be required” to sign waivers as opposed to mandating that the gym obtain signed waivers.  [***6] Under this interpretation, the gym argues, a reasonable person would believe that coverage exists so long as the gym has a policy of requiring waivers regardless of whether it actually obtained waivers from climbing participants. Colony argues that the policy language is unambiguous. We agree with Colony.

[4] The clear meaning of the policy language is that the gym is required to actually obtain waivers from climbing participants. The gym’s interpretation would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. The gym’s interpretation is unreasonably narrow, and is therefore not the type of alternative interpretation that renders policy language ambiguous. See Curtis, 132 N.H. at 342 ( [HN5] refusing to find ambiguity when alternate interpretations would “inevitably lead to absurd results”). To construe the exclusion against the insurer here would create coverage where it is clear that none was intended. We therefore conclude that the policy language is unambiguous and that a reasonable insured would understand that the exclusion would  [***7] apply in this case.

Because the policy requires the gym to obtain waivers from all participants, the failure to do so in the case of Bigelow renders coverage under the policy inapplicable to his claims. In light of our holding, we need not address Colony’s remaining argument. We therefore reverse the order of the trial court granting the defendants’ motion for summary judgment, and hold that Colony is entitled to summary judgment as a matter of law.

Reversed and remanded.

Broderick, C.J., and Dalianis, J., concurred.

 


Release valid to stop a claim for an injury on a tubing hill in Iowa

Attempt to reclassify a tubing hill as a carnival or amusement ride also failed by the plaintiff.

Lathrop vs. Century, Inc., 2002 Iowa App. LEXIS 1136

State: Iowa

Plaintiff: Pamela J. Lathrop, Individually and as Next Friend of D. Scott Lathrop, a Minor, and Sarah N. Lathrop, a Minor

Defendant: Century, Inc., d/b/a Mt. Crescent

Plaintiff Claims:

Defendant Defenses: Release

Holding: For the defendant

Year: 2002

The opportunity to analyze an outdoor recreation case in Iowa is rare. Writing about one concerning a tubing hill is probably a once in a lifetime opportunity.

A mother and her two children went tubing at the defendant’s tubing hill. Before entering the premises “they” signed a release. Later, the court clarified this and stated the mother and two children signed the release.

After taking several trips down the hill, the mother went down going faster than she expected. She went over a bump and was thrown from the tube landing on her back and head.

All three signed the form. They entered, and took several trips up and down the hill. After they had been snow tubing for roughly an hour, Pamela, on a trip down the hill, traveled faster than she expected. She went over a bump at a high speed, became airborne and was thrown from the snow tube. She landed on her back and hit her head on the ramp. She was later diagnosed with a compression/explosion fracture of L2 with canal compromised.

The mother on her own behalf and on behalf of her two children filed a lawsuit. The district court granted the defendant tubing hill’s motion to dismiss, and this appeal followed.

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

The plaintiff’s appeal was based on six allegations. The appellate court took each allegation and through it out with simple response. The first allegation was the release was ambiguous.

The ambiguity in the release was based on the use of the terms “event” and “restricted area.” However, the trial court and the appellate court found there was no ambiguity in the release.

Lathrop entered a restricted area, as defined by the release, when she entered the tubing park. She was not allowed to enter until she paid the admission price and signed the release and the area was therefore restricted from the general public. We find no error with the district court’s conclusion that the release applied to Lathrop.

The second argument was the plaintiff’s lack of awareness about the risks of tubing should void the release. Under Iowa law, the parties to a release must not have known of the precise circumstances leading to the injury to the plaintiff, only that there could be a broad range of accidents that could occur. She argued a jury should have the right to decide if she contemplated the injury she received.

The court did not agree with this argument.

We conclude a reasonable juror could not find the Lathrop’s assertion of ignorance plausible. One need not be an experienced snow tuber to anticipate that, while sliding down a snow-covered hill at a fast rate on an inflated tube, one might be thrown from the tube. Accordingly, we find no error on this issue by the district court.

The third argument of the plaintiff was the Iowa Amusement or Carnival statute. The statute requires carnivals to carry liability insurance. Therefore, the plaintiff argued the use of a release is against public policy.

However, the court found that the statute referred did not refer to tubing hills. As such, there was no need to determine if the statute and public policy prevented the use of a release.

We agree with the ruling of the district court that the Mt. Crescent snow tubing facilities do not fall under the definition of carnival or amusement ride or device in Iowa Code section 88A. We therefore need not decide whether the provisions of this code chapter implicitly preclude the use of releases of liability by such facilities.

The fourth argument was the specific release fell within an exception to the general enforceability of releases. There could not be an exception to the rule, “unless there preservation of the general public welfare imperatively so demands.”

While the court in Baker does not provide a precise framework for analyzing the appropriateness of a public policy exception in a specific situation, it does suggest, as an example, that a professional providing a service of great importance to the public would not be allowed to contract to avoid liability for negligence. We conclude snow tubing, a purely recreational activity, is not of such great importance to the public as to justify an exception to the general rule. The district court did not err by failing to recognize a public policy exception to the general enforceability of releases of liability in this case.

The fifth argument was if the release was enforceable, it only released the defendant from unavoidable and inherent risks of tubing and not from unnecessarily dangerous conditions or general negligence. The plaintiff could find no legal support for this claim, and the appellate court dismissed it with the statement: “The appellate courts of this state have consistently upheld the validity of broadly worded releases.”

The final argument was the minor’s claims could not be waived because a parent could not waive a minor’s claims. However, due to technical requirements, the issue was not properly addressed, and the error was not preserved for appeal.

The appellate court upheld the trial court’s dismissal of the claims.

So Now What?

The only issue of interest raised in the appeal was whether or not the injured plaintiff could understand the risks she was signing away. However, the court looked at this not as a requirement the release lists all the possible injuries a plaintiff could suffer, but only that the plaintiff has a general knowledge that she could be injured.

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Lathrop vs. Century, Inc., 2002 Iowa App. LEXIS 1136

Lathrop vs. Century, Inc., 2002 Iowa App. LEXIS 1136

Pamela J. Lathrop, Individually and as Next Friend of D. Scott Lathrop, a Minor, and Sarah N. Lathrop, a Minor, Plaintiffs-Appellants, vs. Century, Inc., d/b/a Mt. Crescent, Defendant-Appellee.

No. 2-243 / 01-1058

COURT OF APPEALS OF IOWA

2002 Iowa App. LEXIS 1136

October 30, 2002, Filed

NOTICE:

NO DECISION HAS BEEN MADE ON PUBLICATION OF THIS OPINION. THE OPINION IS SUBJECT TO MODIFICATION OR CORRECTION BY THE COURT AND IS NOT FINAL UNIL THE TIME FOR REHEARING OR FURTHER REVIEW HAS PASSED. AN UNPUBLISHED OPINION MAY BE CITED IN A BRIEF; HOWEVER, UNPUBLISHED OPINIONS SHALL NOT CONSTITUTE CONTROLLING LEGAL AUTHORITY.

PRIOR HISTORY: Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge. The plaintiffs appeal from the district court’s grant of summary judgment in favor of the defendant.

DISPOSITION: Affirmed.

 

COUNSEL: James E. Harris and Britany S. Shotkoski of Harris Feldman Law Offices, Omaha, Nebraska, and Laura Laubenthal Pattermann of Law Offices of Gallner & Pattermann, P.C., Council Bluffs, for appellants.

John M. McHale of Peters Law Firm, P.C., Council Bluffs, for appellee.

JUDGES: Heard by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.

OPINION BY: HECHT

OPINION

HECHT, P.J.

The plaintiffs appeal from a district court order granting defendant’s motion for summary judgment. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS

On December 30, 1999, Pamela Lathrop and her two minor children, Scott and Sarah, visited the Mt. Crescent tubing park. Before they were allowed to enter the premises, [*2] they signed a form entitled “Release and Waiver of Liability Assumption of Risk and Indemnity Agreement.” Key portions of the release read as follows.

In consideration of being permitted to compete, officiate, observe, work for, or participate in any way in the EVENT(S) (i.e., snow-tubing, skiing, snowboarding), being permitted to enter for any purpose any RESTRICTED AREA (defined as any area requiring special authorization, credentials, or permission TO enter or an area to which admission by the general public is restricted or prohibited), EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin:

. . . .

2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the . . . operators, owners, officials . . . of premises used to conduct the EVENT(S) (i.e., snow-tubing, snowboarding, skiing) . . . FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREOF ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S) (i.e., snow-tubing, snowboarding, skiing) WHETHER CAUSED [*3] BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

. . . .

4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) (i.e., snow-tubing, snowboarding, skiing) whether caused by the NEGLIGENCE OF RELEASEES OR OTHERWISE.

5. HEREBY acknowledges that THE ACTIVITIES OF THE EVENT(S) (i.e., snow-tubing, snowboarding, skiing) ARE VERY DANGEROUS and involve the risk of serious bodily injury and/or death and/or property damage. . . .

6. HEREBY agrees that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the Releasees . . . and is intended to be as broad and inclusive as is permitted by the law of the County or State in which the EVENT(S) (i.e., snow tubing, snowboarding, skiing) is/are conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY [*4] AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE, OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.

All three signed the form. They entered, and took several trips up and down the hill. After they had been snow tubing for roughly an hour, Pamela, on a trip down the hill, traveled faster than she expected. She went over a bump at a high speed, became airborne and was thrown from the snow tube. She landed on her back and hit her head on the ramp. She was later diagnosed with a compression/explosion fracture of L2 with canal compromised.

Pamela, individually and on behalf of her two children, filed a lawsuit against Mt. Crescent alleging negligence. Mt. Crescent moved the court for summary judgment. The district court granted this motion and dismissed the case on June 18, 2001. Plaintiffs appealed, alleging the district court erred in granting summary judgment to the defendant.

II. STANDARD OF REVIEW

[HN1] A grant of summary judgment is reviewed for correction of errors of law. Wright v. American Cyanamid Co., 599 N.W.2d 668, 670 (Iowa 1999). “Summary [*5] judgment is only appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Id. “We review the record in the light most favorable to the party opposing summary judgment, and the moving party carries the burden of showing the absence of a material fact issue.” Id. (citations omitted).

III. ANALYSIS

Lathrop makes six allegations of error by the district court in granting summary judgment. We will address each in turn.

A. The release is ambiguous. Lathrop argues that the language of the release is ambiguous. Specifically, she contends the references in the release to “EVENT” and “RESTRICTED AREA” are subject to differing interpretations. For example, she argues “EVENT” can be understood to refer to a competition or special occurrence, and that she never participated in a competition while at Mt. Crescent. She also argues that “RESTRICTED AREA” is ambiguous and that she at no time entered any restricted areas, as she understood them. She contends then, that the district court erred by applying the terms of the release to her. We, however, find no error by the district court. The two terms Lathrop [*6] points to are defined in the release. An “EVENT” is defined as “snow tubing, snowboarding, [or] skiing” and “RESTRICTED AREA” is defined as “any area requiring . . . permission . . . to enter or an area to which admission by the general public is restricted or prohibited.” There is no doubt that Lathrop participated in snow tubing. Lathrop entered a restricted area, as defined by the release, when she entered the tubing park. She was not allowed to enter until she paid the admission price and signed the release and the area was therefore restricted from the general public. We find no error with the district court’s conclusion that the release applied to Lathrop.

B. Lathrop’s lack of awareness of the risks involved in snow tubing rendered the release void. Lathrop acknowledges that Korsmo v. Waverly Ski Club, 435 N.W.2d 746 (Iowa Ct. App. 1988) provides the guiding principles when determining the applicability of releases. [HN2] “Parties need not have contemplated the precise occurrence which occurred as long as it is reasonable to conclude the parties contemplated a similarly broad range of accidents.” Id. at 749. Lathrop, however, contends [*7] she was unaware of the risks involved in snow tubing because she had never snow tubed before. She argues that she could not, and did not, contemplate the accident that occurred while she was snow tubing at Mt. Crescent. She contends then that the district should have permitted a jury to decide whether this type of accident was within her contemplation. We conclude a reasonable juror could not find the Lathrop’s assertion of ignorance plausible. One need not be an experienced snow tuber to anticipate that, while sliding down a snow-covered hill at a fast rate on an inflated tube, one might be thrown from the tube. Accordingly, we find no error on this issue by the district court.

C. The release is contrary to applicable provisions of Iowa Code chapter 88A and is void and unenforceable. Lathrop argues Mt. Crescent is a carnival and the tubing sponsored by Mt. Crescent is an amusement device or ride as contemplated by Iowa Code chapter 88A (2001). Because the statute requires carnivals to carry liability insurance, Lathrop argues it is against public policy to allow them to waive their liability in a release.

Mt. Crescent contends Lathrop failed to preserve error on this [*8] issue. Lathrop first raised this issue in her supplemental resistance to Mt. Crescent’s motion for summary judgment, presented to Mt. Crescent a mere four days before the scheduled hearing. It was argued in the hearing, and the district court ruled on it. We conclude the issue was preserved for our review.

Iowa Code section 88A.1 defines a carnival as [HN3] “an enterprise offering amusement or entertainment to the public in, upon, or by means of amusement devices or rides or concession booths.” Clearly, Mt. Crescent offers entertainment and amusement. The question, then, is whether it accomplishes this by means of amusement devices or rides. [HN4] An amusement device is “any equipment or piece of equipment, appliance or combination thereof designed or intended to entertain or amuse a person.” Iowa Code § 88A.1 (2001). An amusement ride is “any mechanized device or combination of devices which carries passengers along, around, or over a fixed or restricted course for the purpose of giving its passengers amusement, pleasure, thrills or excitement.” Iowa Code § 88A.1. The [HN5] snow tubing runs at Mt. Crescent are not mechanized [*9] and do not carry its passengers over a fixed or restricted course. We agree with the ruling of the district court that the Mt. Crescent snow tubing facilities do not fall under the definition of carnival or amusement ride or device in Iowa Code section 88A. We therefore need not decide whether the provisions of this code chapter implicitly preclude the use of releases of liability by such facilities.

D. This release falls within a public policy exception to the general enforceability of releases. [HN6] “Contracts exempting a party from its own negligence are enforceable, and are not contrary to public policy.” Huber v. Hovey, 501 N.W.2d 53, 54 (Iowa 1993). Despite this clear statement from our supreme court, Lathrop argues the Mt. Crescent release falls within a public policy exception to this rule. Lathrop relies upon language found in Bashford v. Slater, 250 Iowa 857, 96 N.W.2d 904 (Iowa 1959) and Baker v. Stewarts’ Inc., 433 N.W.2d 706 (Iowa 1988). Both of these cases acknowledge the possibility of an exception to the general enforceability of releases in Iowa, but neither case finds a public policy exception [*10] applicable. Baker provides guidance for the recognition of a public policy exception. [HN7] “We will not ‘curtail the liberty to contract by enabling parties to escape their valid contractual obligation on the ground of public policy unless the preservation of the general public welfare imperatively so demands.'” Id. at 707 (quoting Tschirgi v. Merchants Nat’l Bank of Cedar Rapids, 253 Iowa 682, 113 N.W.2d 226, 231 (Iowa 1962). While the court in Baker does not provide a precise framework for analyzing the appropriateness of a public policy exception in a specific situation, it does suggest, as an example, that a professional providing a service of great importance to the public would not be allowed to contract to avoid liability for negligence. See id. We conclude [HN8] snow tubing, a purely recreational activity, is not of such great importance to the public as to justify an exception to the general rule. The district court did not err by failing to recognize a public policy exception to the general enforceability of releases of liability in this case.

E. If the release is enforceable, it only releases Mt. Crescent from unavoidable and inherent [*11] risks of snow tubing. Lathrop argues that if the exculpatory contract is enforceable, it only releases Mt. Crescent from unavoidable and inherent risks of snow tubing and not from unnecessarily dangerous conditions or general negligence. However, Lathrop cites no controlling authority for the proposition that broad exculpatory contracts which purport to release the drafters from “all liability … for any and all loss or damage … arising out of snow tubing … whether caused by the negligence of releasees or otherwise” should not be interpreted as written. [HN9] The appellate courts of this state have consistently upheld the validity of broadly worded releases. See Huber, 501 N.W.2d at 55; Bashford, 96 N.W.2d at 909-910; Weik v. Ace Rents, 249 Iowa 510, 87 N.W.2d 314, 317 (Iowa 1958); and Korsmo, 435 N.W.2d at 748. We find no error by the district court for applying the clear language of the release.

F. The children’s claims cannot be dismissed because a parent cannot waive a child’s future cause of action. The final claim of district court error urged by Lathrop is that the district court erred by dismissing [*12] Lathrop’s children’s causes of action. She argues that a parent cannot waive a child’s right to bring a future cause of action. However, as Lathrop acknowledges in her brief, the [HN10] district court did not address this issue in its ruling. Lathrop did not move the court to enlarge its findings under Iowa Rule of Civil Procedure 1.904(2). Therefore, Lathrop has failed to preserve error on this issue and cannot raise it now on appeal. State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-207 (Iowa 1984).

IV. CONCLUSION

We conclude the district court committed no legal error in granting Mt. Crescent’s motion for summary judgment, and therefore affirm.

AFFIRMED.