University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuitPosted: December 4, 2014
Court looks at whether a release will defeat a claim for gross negligence but does not decide the case on that issue. Case is confusing, because court discussed defenses that were not applicable. Plaintiff waived all but the gross negligence claims.
State: Texas, Court of Appeals
Plaintiff: Rolando Benavidez
Defendant: The University of Texas — Pan American
Plaintiff Claims: failure to properly use the climbing equipment and properly supervise [Benavidez] during the climb, Under the theory of respondeat superior, Benavidez claimed that his injuries were caused by the negligence and gross negligence of UTPA (University of Texas– Pan American), negligent use of tangible personal property in that UTPA breached its “legal duty to [Benavidez] to provide supervision of [Benavidez], use safe equipment with [Benavidez], and to properly secure [Benavidez’s] harness prior to climbing.” negligent use or condition of real property in that UTPA breached its duty to provide a safe climbing wall for Benavidez and failed to use ordinary care to protect Benavidez from an unreasonably dangerous condition. UTPA had subjective awareness of a high degree of risk and acted with “conscious indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.
Defendant Defenses: Release, Recreational Use Statute and the Texas Tort Claims Act
Holding: For the defendant
The plaintiff was climbing at the university’s climbing wall. He signed a release to climb. On the back of the release was a set of rules about climbing that the plaintiff also had to sign. i.e. Two legal documents on one sheet of paper.
The plaintiff argued the rules on the backside of the agreement were part of the contract. Because the climbing wall had not followed the rules, the release was no longer valid and the defendant had acted negligently and gross negligently.
While climbing the plaintiff reached the top of the wall and was told to lean back while he was lowered. The plaintiff fell 33’ suffering injuries. Based on witness statements of other employees of the wall, it appeared the figure 8 (knot) used to tie the plaintiff’s harness to the rope had been tied incorrectly.
The trial court dismissed the case, awarded costs against the plaintiff based on the Texas Tort Claims Act, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The court first looked at the Texas Tort Claim Act and its application to the case.
As a governmental unit, UTPA is immune from both suit and liability unless the Tort Claims Act has waived that immunity. Section 101.021 of the Tort Claims Act has been interpreted as waiving sovereign immunity in three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.”
The court then brought in the Texas Recreational Use Statute. Under the Texas Recreational Use Statute, a state landowner (governmental entity) can only be liable for gross negligence.
When injury or death results on state-owned, recreational land, the recreational use statute limits the state’s duty even further to that owed by a landowner to a trespasser, which means that the State only waives immunity for conduct that rises to the level of gross negligence.
The university is state land, and the climbing wall is on the land. It was used for recreation and probably as a student for free, although this was not discussed in the case. Consequently, the Texas Recreational Use Act protected the university from negligence claims.
With the ordinary negligence claims gone, the court turned to the gross negligence claims and looked at the release. Under Texas law to be valid, a release must:
(1) provide fair notice by being conspicuous, and (2) comply with the express negligence doctrine. To be conspicuous, a release must be written, displayed, or presented such that a reasonable person against whom it is to operate ought to have noticed it. A release satisfies the express negligence doctrine if it expresses the intent of the parties to exculpate a party for its own negligence.
The burden is on the defendant, the person relying on the defense of release, to prove the validity of the release and the requirements set forth by the court.
The court then looked at whether the release then barred the claim for gross negligence. The court reviewed several Texas cases; however, the court did not decide whether a release in this situation barred a claim for gross negligence. The court found the gross negligence claim was not raised on the appeal.
For a legal argument to be argued in the court, there are two basic components that must be met before any argument can be made. The argument must be made in the trial court and in many cases an objection to the court’s ruling made. Second the issue must be argued in the statements (pleadings) at the appellate court also. Here, although argued in the trial court the issue was not argued or probably raised at the appellate court.
The court then went back to the release to see if the release was still valid. The plaintiff claimed the defendant violated the release because it failed to follow the rules on the reverse side of the release. Because the rules were on the document called the release the plaintiff argued they were part of the release. Those rules set forth how the climbers and allegedly the gym was supposed to act. One of the rules required all knots to be checked by specific persons at the gym, which was not done in this case, and allegedly not done at all until after the plaintiff’s injury.
Arguing the rules and release were one document, the plaintiff stated the failure to follow the rules was a material breach of the contract. A material breach or avoidance of the contract voids it.
Under Texas law, a release is a contract and is subject to avoidance just like any other contract. When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. This court is bound to read all parts of a contract together to ascertain the agreement of the parties. The contract must be considered as a whole. Moreover, each part of the contract should be given full effect.
A prior material breach one that occurs before the execution of the contract discharges the parties from the contractual obligations. “Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract.”
Execution of the contract means the contract by its terms has not been completed. Meaning there is part so the contract that have not been complied with by one or more parties. Here the failure of the gym to check the plaintiff’s knot was prior to the climbing of the plaintiff. “Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract.”
Under Texas law for a court to determine if a prior material breach to occur the court must determine the following:
(1) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
(2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(3) the extent to which the party failing to perform or to offer performance will suffer forfeiture;
(4) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; and
(5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
This court also examined whether or not checking the knot was a condition precedent. A condition precedent requires one thing to occur before the rest of the contract must be done.
Alternatively, a condition precedent is an event that must occur or act that must be per-formed before rights can accrue to enforce an obligation. Ordinarily, terms such as “if,” “provided that,” “on condition that,” or similar conditional language indicate the intent to create a condition precedent. Conditions precedent, which can cause forfeiture of a contractual right, are not favored under the law, and we will not construe a contract provision as a condition precedent unless we are compelled to do so by language that may be construed in no other way.
However, the court found that the language of the safety rules did not relate to the language of the release. The safety rules, overall, were simply rules the plaintiff was to follow and was not part of the contract. “…the safety policy’s side of the document, by its clear language, does not indicate that UTPA promised to comply with the policies or that compliance with the policies by UTPA…”
However, reading the safety policies document as a whole, we find that the language of the agreement placed the sole responsibility on the climber to ensure that the procedures in the safety polices were followed.
Because we find that, by its clear language, the waiver and release form did not express the intent of either party to condition the release from liability on any performance by UTPA and did not include a promise by UTPA to follow the safety policies as consideration for the contract, we conclude that UTPA did not breach or fail to satisfy a condition of the release contract.
The remaining issues before the court were dismissed because without a negligence claim, they were also decided. The appellate court affirmed the trial court’s dismissal of the plaintiff’s claims and the award of costs under the Texas rules of civil procedure.
Costs are not attorney fees. Costs are the cost of going to trial, the filing fee, witness fees, possibly deposition costs, etc. Most states allow the winning side to recover costs of a trial.
So Now What?
This was close. It was obvious by the amount of time the court spend discussing the issue of a material breach that the language on the back of the release was an issue for the court. Always remember a release is a contract. You don’t buy a house with a laundry list on the back. You don’t rent an apartment with state driving laws on the back. Releases are contracts, and you need to make sure there is no issue that the document you are having your guests sign. A Release must be a contract and nothing else.
The university, because it was a state college was subject to broader and more protective statutes that provided defenses, than a private commercial gym or a private college. A state’s tort claims act provides a broad range for protection.
Whether or not a state’s recreational use statute provides protection for governmental agencies is different in each state. If you are in this position, you should check with counsel to see what protection any state statutes may provide.
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Colleen Barillari and William Barillari, Plaintiffs, v. Ski Shawnee, Inc., Defendant.
Civ. No. 3:12-CV-00034
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
November 12, 2013, Decided
November 12, 2013, Filed
PRIOR HISTORY: Barillari v. Ski Shawnee, Inc., 2012 U.S. Dist. LEXIS 4998 (M.D. Pa., Jan. 17, 2012)
CORE TERMS: skiing, sport, downhill, skier, spectator, no-duty, summary judgment, ski, hit, ball, SKIER’S RESPONSIBILITY ACT DOES, risk doctrine, foul ball, amusement, matter of law, inherent risks, slope, baseball game, baseball, genuine, snow, ski lift, collision, mountain, ski resorts, risks inherent, nonmoving party, frequent, sporting, player
COUNSEL: [**1] For Colleen Barillari, William Barillari, h/w, Plaintiffs: Edward Shensky, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA.
JUDGES: Matthew W. Brann, United States District Judge.
OPINION BY: Matthew W. Brann
Before the Court is Ski Shawnee, Inc.’s (“Defendant”) motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari (“Plaintiffs”). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant’s alleged negligence. See Pls.’ Compl. 9-13, Jan. 6, 2012, ECF No. 1.
The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs’ claims are barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.’s Br. Supp. Mot. Summ. J. 5-9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.’s Br.]. The Court hereby denies the Defendant’s motion for summary judgment on both theories for the reasons that follow.
This case arises from [**2] an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.’s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.’s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.’s SOF ¶¶ 3-4; Pls.’ Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.’ SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.’s SOF ¶¶ 6-13.
The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.’s SOF ¶¶ 12-13; Pls.’ SOF ¶¶ 10-11. There was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” Def.’s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.’ SOF ¶ 19.
Mrs. Barillari was generally aware of the risks of collision between skiers. [*558] Def.’s SOF ¶ 7. At the time, however, she was not worried about skiers colliding with her because she believed [**3] that she was close enough to the dividing tape and there were other spectators in the area. Def.’s SOF ¶¶ 15-17; Pls.’ SOF ¶¶ 15-17. Unfortunately for Mrs. Barillari, a skier did collide with her and caused an injury to her left leg. Pls.’ SOF, at 2. The Court considers the legal arguments in light of these facts.
A. LEGAL STANDARDS
1. Summary Judgment
Summary judgment is appropriate when the court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When the court considers the evidence on summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.
The party moving for summary judgment bears the burden of establishing the nonexistence of a “genuine issue” of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (internal quotations and [**4] citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party’s claim, or demonstrating the other party’s evidence is insufficient to establish an essential element of its claim. Id. at 231.
Once the moving party satisfies this initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Moreover, “[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (internal [**5] quotations and citation omitted).
In deciding the merits of a party’s motion for summary judgment, the court’s role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Consequently, summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 54(a).
2. Pennsylvania Law Must Be Applied In This Case
This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New [*559] Jersey, the Defendant is a Pennsylvania corporation with a principal place of business in Pennsylvania, and the amount in controversy is alleged to be over $75,000–consequently, diversity jurisdiction is proper. See 28 U.S.C. § 1332; Pls.’ Compl., ¶¶ 1, 2, 46.
As this is a diversity action and Pennsylvania was the situs of the injury, this Court “must apply Pennsylvania law to the facts of [**6] this case.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).
B. THE PENNSYLVANIA SKIER’S RESPONSIBILITY ACT DOES NOT APPLY TO THIS CASE
The Defendant asserts that the Plaintiffs’ claims are barred by the assumption of the risk doctrine. Def.’s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See 42 Pa. C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier’s Responsibility Act, reads:
(c) Downhill skiing.–
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1). 1
42 Pa. C.S.A. § 7102(c).
1 As a general rule, subsections (a) and (a.1) [**7] supplant the assumption of the risk doctrine with a system of comparative fault in most negligence cases. Nevertheless, assumption of the risk was expressly preserved for injuries arising from downhill skiing, as noted. See 42 Pa. C.S.A. § 7102; Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341 (2000).
The Restatement (Second) of Torts, § 496A, summarizes the essence of the assumption of the risk doctrine: “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” As the Supreme Court of Pennsylvania elucidated, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2).
Applying those principles to the Skier’s Responsibility Act, that same court “made clear that this ‘no-duty’ rule applies to the operators of ski resorts, so that [**8] ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343-44 (2000)). Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.
[*560] The Supreme Court of Pennsylvania established a two-part analysis to determine whether a plaintiff was subject to the assumption of the risk doctrine adopted in the Skier’s Responsibility Act. See Huges v. Seven Springs Farm, Inc. 762 A.2d at 343-44. “First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . . .” Id. at 344. If both of these prerequisites are met, then summary judgment is appropriate because, as a matter of law, [**9] the Defendant would have had no duty to Mrs. Barillari. See id.
First, the Court considers whether Mrs. Barillari was “engaged in the sport of downhill skiing at the time of her injury.” Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:
the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.
Hughes, 762 A.2d at 344.
In that case, the court held that a plaintiff who was skiing towards the chair lift through an area at the base of the mountain where several trails converged when she was struck from behind by another skier could not recover because the assumption of risk doctrine applied. Hughes, 762 A.2d at 340, 345. Although the plaintiff “was not in the process of skiing downhill, but rather was propelling herself towards the ski lift at the base of the mountain,” the [**10] court found this action was within the scope of engaging “in the sport of downhill skiing.” Id. at 344-45. The court noted that to decide otherwise would “interpret the Act, as well as the sport of downhill skiing, in an extremely narrow, hypertechnical and unrealistic manner.” Id. at 344.
In Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (2010), the Supreme Court of Pennsylvania held that a skier’s negligence action based on her fall from a ski lift was barred by the doctrine of assumption of the risk because she was engaged in the sport of downhill skiing and the fall was an inherent risk of that sport. Chepkevich, 2 A.3d at 1194-95. The court noted that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Id. at 1187-88.
A number of other courts have addressed the scope of the Skier’s Responsibility Act as well. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008) (finding that a skier’s claim based on the lack of safety netting, improper course plotting, or [**11] soft loose snow was barred because those were risks inherent in skiing); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir. 1991) (interpreting Pennsylvania law to find ski resort had no duty of care to injured skier because a “double black diamond” slope with rocks and trees was an obvious inherent danger of skiing); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983) (Aldisert, J.) (finding that a skier’s claim was barred by assumption of the risk when he chose to ski a steep, icy expert slope with unpadded poles for snowmaking equipment); Lin v. Spring Mountain Adventures, Inc., CIV. [*561] A. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010) (holding that the Act barred a skier’s claim because colliding with snow making equipment was an inherent risk); Savarese v. Camelback Ski Corp., 417 F. Supp. 2d 663, (M.D. Pa. 2005) (Caputo, J.) (holding that a skier was barred from recovery where the injury occurred when he attempted to board the ski lift when the bottom of the chair was not folded down for seating); Bell v. Dean, 2010 PA Super 151, 5 A.3d 266 (Pa. Super. Ct. 2010) (finding that a skier assumed the risk of collision with a snowboarder such that the snowboarder could not be found negligent); [**12] Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. Ct. 2005) (holding that the risk of colliding with a drunk underage snowboarder was not a risk inherent in the sport of downhill skiing).
The case before the Court, however, is distinguishable from all of these cases–Mrs. Barillari was not “engaged in the sport of downhill skiing” at the time of her collision, as required by the statute. 2 Hughes, 762 A.2d at 344. Although someone wearing skis and standing in the area of Mrs. Barillari and the other spectators on a momentary pause in their run may well have been “engaged in the sport,” that is an entirely different matter from someone who is purely a spectator. See id. Even though a collision with a skier is a prominent injury considered to be inherent in the sport of skiing as contemplated by the statute and the courts, the fact remains that Mrs. Barillari was merely a spectator not engaged in the sport. See id.
2 The Court recognizes that “engaged” may be defined as “greatly interested,” which could suggest that spectators are “engaged in the sport of downhill skiing.” Merriam-Webster’s New International Dictionary (3d ed. 2013). As is apparent from the context of the [**13] relevant Supreme Court of Pennsylvania decisions, however, this is not the manner in which the court used the term “engaged.” See, e.g., Hughes, 762 A.2d at 344. Rather, the context surrounding the court’s usage of the term indicates a meaning closer to “occupied” or “employed” when using the phrase “engaged in the sport of downhill skiing.” See id.; Merriam-Webster’s New International Dictionary (3d ed. 2013).
If this Court were to include Mrs. Barillari as a person subject to the Skier’s Responsibility Act, it would necessarily extend the confines of Pennsylvania’s law beyond the scope of its current applicability. That is not this Court’s place, and the Court declines to do so. Instead, the Court must apply the law as Pennsylvania’s own Supreme Court has instructed. See, e.g., Hughes, 762 A.2d at 344-45. Consequently, the Court finds that the assumption of the risk doctrine, as articulated in the statue and interpreted by courts, does not apply to bar Mrs. Barillari’s claim, because she was not “engaged in the sport of downhill skiing” at the time of her accident. See Hughes, 762 A.2d at 344-45.
C. TRADITIONAL ASSUMPTION OF THE RISK DOES NOT BAR THE PLAINTIFFS’ CLAIMS
The Defendant [**14] asserts that, in the alternative, the traditional common law defense of assumption of the risk should bar the claim. Def.’s Br., at 6. Although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing. See, e.g., Zinn v. Gichner Systems Grp., 880 F. Supp. 311 (M.D. Pa. 1995) (Caldwell, J.) (holding assumption of the risk barred plaintiff’s claim when he continued to work after landowner refused to cover opening in which he was injured); Howell v. Clyde, [*562] 533 Pa. 151, 620 A.2d 1107 (1993) (finding that the plaintiff guest who helped secure gunpowder for a firework cannon and participate in lighting it assumed the risk of his injury); see also Rutter v. Ne. Beaver Cnty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1212 (1981) (Nix, C.J., dissenting) (“[T]his doctrine constitutes a necessary and viable component of tort law.”).
Borrowing Justice Antonin Scalia’s memorable phrase concerning a similarly limited but resurgent doctrine in another area of law, assumption of the [**15] risk survives “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.
There are four different theoretical species of assumption of the risk–two of which are at issue in this case. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c. One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3.
A second related corollary of the assumption of risk doctrine 3 is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3 [**16] . As both of these manifestations of that intractable doctrine are at issue here, the Court addresses them in turn, first analyzing voluntary assumption of the risk. 4
3 See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 531 (1988) (discussing the discrete conceptual differences between voluntary assumption of the risk as an affirmative defense to a breached duty and the “no-duty” theory with its inherent absence of a duty).
4 The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c, 1, 4.
1. Voluntary Assumption of the Risk Does Not Bar Plaintiff’s Claim in this Case
As Judge A. Richard Caputo articulated when considering a case involving voluntary assumption of the risk: “[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite [**17] the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed.” Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5 (M.D. Pa. Feb. 27, 2012) (Caputo, J.). This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (1996). Moreover, “[t]he mere fact one engages in activity that has some inherent [*563] danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 573 (Pa. Super. Ct. 2000).
The dispositive analytical point in the case before this Court is determining what constitutes a plaintiff’s conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at * 6 (citing Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693 (1990)). Rather, the plaintiff must be [**18] aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Id.
For example, in Bolyard v. Wallenpaupack Law Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6 (M.D. Pa. Feb. 27, 2012), Judge Caputo held, inter alia, that assumption of the risk did not apply to a plaintiff who went snow-tubing on an old ski slope, hit a rut, and crashed into a tree. Judge Caputo recognized that, while the plaintiff “was generally aware that snow tubing on a tree-lined trail was dangerous, there [was] no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *6. This was a material distinction, such that the elements of voluntary assumption of the risk remained unsatisfied–therefore, as a matter of law, the plaintiff did not assume the risk. Id.
Similarly, in Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693, 696 (1990), the court held that assumption of the risk did not apply when a plumbing contractor sustained injuries and died because a trench in which he was laying pipe collapsed. The court noted that the plaintiff was aware of the general [**19] risk of ditch collapses and that the particular job would be delicate. Handschuh, 574 A.2d at 694. Nevertheless, that awareness of the general risks was not sufficient “to compel a finding of a waiver of an individual’s right to complain about a breach of duty of care to the risk taker.” Id. at 696 (original punctuation altered).
In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696; Pls.’ SOF ¶ 5. It is undisputed that Mrs. Barillari was aware of the general risks and dangers inherent in the sport of skiing. She was aware collisions between skiers occurred and she “was worried about [her] children with that.” Def.’s SOF, Oral Dep. Mrs. Barillari 23, Dec. 03, 2012, ECF No. 18, Exh. 5. There is not, however, anything in the record that indicates Mrs. Barillari was specifically aware of the danger that later befell her.
Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [**20] [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.” Id. at 63-64. Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case. See id.
2. The “No-Duty” Rule Does Not Apply
The “no-duty” theory, a corollary species of assumption of the risk discussed [*564] previously in the context of the Skier’s Responsibility Act, applies at common law when: “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.” Hughes, 762 A.2d at 341 (citing Restatement (Second) of Torts, §496A, cmt. c, 2). “Again the legal result is that the defendant is relieved of his duty to the plaintiff.” Id.
The no-duty rule applies most prominently in the context of a spectator [**21] at a sporting event, such as a fan hit by a foul ball at a baseball game. See, e.g., Schentzel v. Philadelphia Nat’l League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953). As the Restatement observes, “a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without precautions to protect him from being hit by the ball.” Restatement (Second) of Torts, §496A, cmt. c, 2.
“In Pennsylvania, the law imposes ‘no duty’ to protect spectators from risks that are common, frequent, and expected [in the sport].” Petrongola v. Comcast-Spectacor, L.P., 2001 PA Super 338, 789 A.2d 204, 210 (2001). “However, a facility may be held liable if the design of the facility deviates from the established custom in some relevant way.” Id. “The central question, then, is whether [a plaintiff’s] case is governed by the ‘no-duty’ rule applicable to common, frequent and expected risks of [the sport] or by the ordinary rules applicable to all other risks which may be present [at a sporting facility].” Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 551 (1978).
For example, in Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 186-92, 96 A.2d 181 (1953), [**22] the no-duty rule barred the claim of a plaintiff hit by a foul ball in the stands at a baseball game. The court noted that, even though there was scant evidence the plaintiff knew about the prevalence of foul balls, the defendant owed her no duty because foul balls are an inherent risk of attending a baseball game. Schentzel,173 Pa. Super. at 186-92.
In Loughran v. The Phillies, 2005 PA Super 396, 888 A.2d 872, 876-77 (Pa. Super. Ct. 2005), a majority of the court held that the no-duty rule barred a spectator’s claim for injuries suffered in the stands at a baseball game. There, the center-fielder threw the ball into the stands after catching it for the final out of the inning–as is customarily done to provide souvenirs for fans–when the unsuspecting plaintiff was hit and injured by the ball. Loughran, 888 A.2d at 874. Although this was not the typical foul ball hit into the stands, the majority considered this custom to be inherent in the sport. Id. at 877. They noted that the plaintiff failed to establish the defendants “deviated from the common and expected practices of the game of baseball.” 5 Id.
5 Judge John T. Bender dissented from this majority opinion, writing:
since the act of tossing a ball to fans [**23] as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not “assume the risk” of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the “no duty” rule to this practice. Rather, if a baseball player wants to go beyond the confines of the game . . . he should be charged with the obligation of doing it in a reasonably safe and prudent manner.
Loughran, 888 A.2d at 882.
By contrast, in Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546, 548, 552-553 (1978), the court held that the no-duty rule did not apply because the patron was hit by a ball while using an interior walkway to the concessions [*565] area, rather than while seated in the stands. The court noted that “in a ‘place of amusement’ not every risk is reasonably expected.” Jones, 394 A.2d at 551. That particular injury was due to a failure in the ballpark’s design such that the no-duty rule should not apply. Id. at 551-52.
The Jones court also drew a distinction between risks that are merely inherent in the activity, and those risks that are not only inherent but also necessary to the activity. See id.; [**24] see also Loughran, 888 A.2d at 880 (Bender, J., dissenting) (“A careful reading of Jones, reveals that the no-duty rule applies not just when one’s injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity.”). For example, while foul balls in the stands are an inherent and necessary part of any baseball game, a bat flying into the stands is an inherent risk of baseball but not a necessary component of the game. Jones, 394 A.2d at 551; see also Schentzel, 96 A.2d at 182 (“There is a million foul balls, maybe three or four or five an inning, goes into the stand [sic].”).
The court further illuminated this distinction with analogies, writing that: “[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand.” Id. at 550-51. As Judge John T. Bender poignantly extrapolated in his Loughran dissent:
if movie houses are made to lighten the theatres so that no one trips, the movie-going experience would be greatly diminished if not destroyed. If amusement parks are made to design roller coasters so as to eliminate all jerkiness and smooth out all changes [**25] in direction they would no longer be capable of being classified as “thrill rides” and the word “amusement” might be deleted from the term “amusement parks.” But if baseball players and their employers, are charged with exercising reasonable care in the practice of providing souvenir balls to patrons, the “Fall Classic” will remain a classic sporting contest and all those regular season and playoff games preceding it would still be played in a manner consistent with Abner Doubleday’s original intent.
Loughran, 888 A.2d at 881.
According to the principles discussed in Jones and Loughran, the no-duty rule can be said to apply when, to avoid injury, a “place of amusement” must alter conditions at the facility in such a way that would change the very essence of the activity for which it is made. See Loughran, 888 A.2d at 881; Jones, 394 A.2d at 550-52. This does not affect the duty of sports facilities and places of amusement to protect patrons against foreseeable risks not inherent and necessary such that they are “common, frequent, and expected” in the very essence of that central activity. Jones, 394 A.2d at 551
Applying these principles to the case before the Court, the no-duty rule cannot [**26] protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. See Def.’s Br., at 8-10. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport. See Jones, 394 A.2d at 551-52.
A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands. See Schentzel, 96 A.2d at 182. The Court is not aware of a similar majority that assumes they will see [*566] a number of skiers crash violently into spectators on a day trip to the mountain.
Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. See Loughran, 888 A.2d at 881. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.
Therefore, [**27] the issues in this case do not present an instance where the “no-duty” rule applies. Rather, the existence of any negligence by either or both parties should be submitted to a jury.
For the foregoing reasons, Ski Shawnee Inc.’s motion for summary judgment is denied.
An appropriate Order follows.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
AND NOW, this 12th day of November, 2013, it is hereby ORDERED, in accordance with a Memorandum of this same date, that the Defendant, Ski Shawnee, Inc.’s motion for summary judgment is hereby DENIED.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
Linda Timmer, et al., Respondents, vs. Shamineau Adventures, Appellant.
COURT OF APPEALS OF MINNESOTA
2005 Minn. App. Unpub. LEXIS 576
December 13, 2005, Filed
NOTICE: [*1] THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.
SUBSEQUENT HISTORY: Review denied by Timmer v. Shamineau Adventures, 2006 Minn. LEXIS 73 (2006)
Subsequent appeal at, Remanded by Timmer v. Shamineau Adventures, 2007 Minn. App. Unpub. LEXIS 351 (2007)
PRIOR HISTORY: Morrison County District Court. File No. CX-03-261. Hon. John H. Scherer.
COUNSEL: For Appellant: Robert G. Haugen, Jason M. Hill, Johnson & Lindberg, P.A., Minneapolis, MN.
For Respondent: Luke M. Seifert, Michael, T. Milligan, Heidi N. Thoennes, Quinlivan & Hughes, P.A., St. Cloud, MN.
JUDGES: Considered and decided by Willis, Presiding Judge, Randall, Judge, and Huspeni, Judge. 1
1 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
OPINION BY: RANDALL
This is an appeal from the district court order denying a motion for JNOV but granting a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering. After respondents accepted the conditional remittitur, appellant brought this appeal contending: (a) it is entitled to a Schwartz hearing based on a juror’s allegations of misconduct in reaching the verdict; (b) it is entitled to an unconditional new trial because of juror misconduct on the face of the special [*2] verdict form; (c) it is entitled to a new trial on liability due to the erroneous admission into evidence of an unqualified expert’s opinions; and (d) the court erred in allowing respondent’s expert to testify to opinions undisclosed prior to trial and denying appellant’s request for a continuance. Respondents filed a notice of review arguing that the conditional remittitur was unsupported by the evidence. We affirm on all issues.
This appeal stems from a tort action brought by respondents Linda Timmer and her husband Jere Timmer (collectively “respondents”) against appellant Shamineau Adventures. Appellant is one of five subdivisions that are collectively referred to as “Shamineau Ministries.” Appellant’s subdivision consists of a ropes course that includes various elements and obstacle courses. One of the elements of the ropes course is a zip line that consists of a 300-foot cable that is secured to a tower structure on a hill, traverses a valley, and ends at a tree located at a lower point on the opposite side. The cable drapes across the valley, and gradually rises as it nears the landing area in front of the tree to which it is attached. The cable is threaded through [*3] a pulley system and a lanyard rope is attached to the pulley. At the end of the lanyard is a carabiner that has a hinged gate on one side that is spring loaded. A zip line rider is specially body-harnessed by camp personnel, and connected to another carabiner clip attached to the harness. Both carabiners are equipped with screw-lock devices and spring tension hinges that prevent them from opening accidentally.
To ride the zip line, the rider’s harness carabiner is attached to the zip line carabiner. The rider then steps from the higher end platform, gliding down the cable across the valley. The rider slows as the calibrated slack in the cable and the resulting incline brings the rider to a slow landing on the gradual upslope of the lower end hill. The harness carabiner is then disconnected from the zip line by an assistant stationed at the lower end of the hill, and the pulley and lanyard assembly is walked back up to the higher end platform by the rider using a tow-rope attached to the lanyard.
In October 2001, a group of students and teachers from the Little Falls School District went to Camp Shamineau. Included in the group was Timmer, a special education teacher in the Little [*4] Falls School District. On October 11, while “roving” the ropes course and generally supervising her students, Timmer was approached by Troy Zakariasen, the ropes course director. Zakariasen asked Timmer if she would be willing to help uncouple students at the receiving end of the zip line while he briefly attended to other duties. Timmer agreed, and Matthew Stanghelle, a Shamineau staff member, showed Timmer how to unhook the zip line riders. Stanghelle spent approximately five minutes with Timmer, showing her the procedure by demonstrating on incoming zip line riders. Stanghelle then left the landing area to assist other students, teachers, and staff. Although Timmer had been to Camp Shamineau three or four times prior to October 11, she had never attended any training relative to the ropes course, which typically includes two to three weeks of training riders.
After Stanghelle left, the next rider on the zip line was 14-year old Tracie Boser. When Boser arrived at the landing area, Timmer grabbed Boser and tried to unhook her from the harness. As Timmer tried to unscrew the safety harness, Boser began drifting backwards. Timmer instinctively grabbed onto Boser to prevent her from [*5] coasting back to the sender, but Timmer was unable to maintain her footing. Boser then glided back toward the middle of the zip line with Timmer hanging onto Boser’s harness. When they reached the mid-point, approximately 25 feet above the valley, Timmer was unable to maintain her grip on the harness, and she fell to the ground, sustaining serious injuries. Timmer brought this tort action alleging negligence on the part of Shamineau Adventures. Jere Timmer filed a claim for loss of consortium.
Four days prior to the commencement of trial, respondents served upon appellant a memorandum issued by Richard Gauger, an engineer retained by respondents to serve as an expert witness. Gauger’s memorandum concluded that, in his opinion, the landing area of the zip line was unsafe, and that the landing area should involve one or more trained persons working together to assist the rider in arriving safely. Appellants moved for an order excluding Gauger’s new opinions, or, in the alternative, for a continuance due to the untimely disclosure of the new evidence. The district court denied the motion, holding that the issue of the landing area could reasonably have been anticipated in light of the [*6] nature of the case.
A jury trial was held from June 21, 2004, through June 29, 2004. At trial, Gauger testified that he has a bachelor’s degree in industrial engineering, and that he is a consulting engineer licensed as a professional engineer. Gauger also testified that his work history included assisting with design and development of construction projects, and some investigative work with regard to recreational activities. Appellant objected to Gauger’s testimony on the basis that he was unqualified as an expert witness. The district court overruled the objection, and Gauger testified in accordance with his June 17 memorandum, that the zip line was dangerous because the slope exceeded the American with Disabilities Act (ADA) standards for ramps and other standards typically used on construction projects.
The jury heard extensive testimony concerning Timmer’s injuries and her present physical condition. Dr. Joseph Nessler testified that as a result of her accident, Timmer suffered “multiple injuries, including pelvic fractures, sacral or tailbone fractures, spinal fracture, left femur fracture, left tibia fracture, and right calcaneus fracture.” Dr. Nessler, Dr. Jeffrey Gerdes, [*7] and Dr. Gregory Schlosser all testified that Timmer suffers from various permanent disabilities as a result of the accident, and all agreed she will have problems lifting, bending, stooping, twisting, and standing. Timmer testified that she is medically disabled and was forced to retire from teaching as a result of the fall.
On the verdict form, the jury determined that appellant was 60% at fault and Timmer was 40% at fault. The jury awarded appellant damages in excess of $ 4.5 million, and after applying the mathematical formula called for by the jury allocation of fault, the net verdict to respondents was $ 2,783,949. Shortly thereafter, James Albrecht, a juror in the case, sent a letter to the district court and the attorneys for both parties. Albrecht stated that the jury had made a mistake in selecting the damages. According to Albrecht, the jury had selected the damages believing that respondents would recover 20% of the damages awarded; deriving this figure by taking appellant’s 60% fault and subtracting respondent’s 40% fault. Appellant subsequently moved the district court for a Schwartz 2 hearing based on Albrecht’s letter. The district court first ruled the letter [*8] inadmissible, and then denied the motion for a Schwartz hearing.
2 See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).
Following the district court’s order denying the request for a Schwartz hearing, appellant moved for a new trial and JNOV. The district court denied the motion for JNOV, but granted a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering, reducing the amount of the recoverable verdict from $ 3,000,000 to $ 1,650,000. Respondents accepted the conditional remittitur. Shamineau appealed. Respondents then served and filed their own notice of review objecting to the remittitur.
Appellant argues that it is entitled to a Schwartz hearing based on Albrecht’s letter stating that the jury had made a mistake in selecting the damages. [HN1] “The standard of review for denial of a Schwartz hearing is abuse of discretion.” State v. Church, 577 N.W.2d 715, 721 (Minn. 1998). [*9]
In Schwartz, the supreme court established a method for inquiring into allegations of juror misconduct. 258 Minn. at 328, 104 N.W.2d at 303. A Schwartz hearing may also be conducted to correct a clerical error in a jury verdict. Erickson by Erickson v. Hammermeister, 458 N.W.2d 172, 175 (1990), review denied (Minn. Sept. 20, 1990).
[HN2] Although trial courts are urged to be fairly lenient in the granting of Schwartz hearings, their purpose is to determine juror misconduct, such as outside influence improperly brought to bear on jurors. The purpose of a Schwartz hearing does not include the correction of a miscomprehension by a juror or jurors. The assertion that the jury was confused and did not understand the effect of the verdict has been rejected as a basis for a Schwartz hearing. Jurors may not impeach their verdict on the basis that they did not understand the legal effect of that verdict.
Senf v. Bolluyt, 419 N.W.2d 645, 647 (Minn. App. 1988) (quoting Frank v. Frank, 409 N.W.2d 70, 72-73 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987)), review denied (Minn. Apr. 15, 1988).
[*10] Here, the district court reviewed the letter for purposes of the Schwartz hearing motion, and concluded that:
There has been no evidence of juror misconduct in this matter. The evidence received did not relate to actions outside of the deliberations that would constitute misconduct. On the contrary, the evidence reveals that during deliberations the jury may have misunderstood or misapplied the law as presented in the jury instructions. However, under Minnesota cases, this does not constitute juror misconduct such that a Schwartz hearing must be held.
The record supports the district court’s conclusion that there were no clerical errors and no evidence of jury misconduct. Albrecht’s letter fails to demonstrate evidence of juror misconduct, but, instead, indicates that the jury may have misapplied the law. The district court properly denied appellant’s request for a Schwartz hearing. See Senf, 419 N.W.2d at 648.
For purposes of the motion, appellant concedes that even if Albrecht is correct and that the jury misunderstood the instructions regarding comparative fault, that “misunderstanding” is not grounds for a new trial. Instead, appellant [*11] argues that the letter is evidence of a “compromise verdict,” and that a compromise verdict is grounds for a new trial. Appellant argues that because a compromise verdict constitutes juror misconduct, it is entitled to a Schwartz hearing.
[HN3] A “compromise” verdict occurs when the jury awards an amount that reflects a compromise between liability and proven damages. See Schore v. Mueller, 290 Minn. 186, 190, 186 N.W.2d 699, 702 (1971). When there is an indication that inadequate damages were awarded because the jury compromised between the right of recovery and the amount of damages, a new trial on damages is appropriate. Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn. 1981).
We agree with the district court that [HN4] just a claim that the jury misapplied jury instructions in apportioning damages does not equate to a compromised verdict. Case law uniformly revolves around allegations by plaintiffs that damages were compromised too low based on proven liability. See, e.g., Vermes v. American Dist. Tele. Co., 312 Minn. 33, 44, 251 N.W.2d 101, 106-07 (Minn. 1977) (holding that because the jury simply misunderstood proof of damages and gave [*12] an inadequate award, it was not a compromise verdict);Schore, 290 Minn. at 190, 186 N.W.2d at 702 (remanding for a new trial because the jury’s award of damages was not supported by the evidence in light of the plaintiff’s proven damages and represented a compromise verdict); Kloos v. Soo Line R.R., 286 Minn. 172, 177-78, 176 N.W.2d 274, 278 (1970) (ordering a new trial on the basis that the jury’s award of inadequate damages constituted a compromise verdict). This case is novel. Appellant does not argue that the damages were inadequate, but rather argues that the damages awarded were in excess of the jury’s intent. We conclude that even if the jury did not fully grasp the mathematics of comparative negligence (an unfortunate but true syndrome that goes back decades to the origins of comparative negligence), plaintiffs and defendants have understood for all those years that if even after careful argument by attorneys in their closing arguments, juries do not exactly “get” comparative negligence. It is not “misconduct” and does not call for a Schwartz hearing.
Appellant next argues that in light of Albrecht’s letter indicating that the jury made [*13] a mistake in apportioning damages, its due process rights to a fair trial were violated. Appellant argues that except for purposes of the Schwartz hearing motion, the district court held that under Minn. R. Evid. 606(b), 3 the letter was inadmissible for purposes relative to other post-trial motions, such as a motion for a new trial, remittitur, or JNOV. Appellant argues that it cannot be granted a new trial for juror misconduct without the excluded evidence, and a Schwartz hearing is only available when admissible evidence of juror misconduct is already in the record to justify the proceeding. Thus, appellant contends that the district court’s ruling of inadmissibility under Rule 606(b) denied it the opportunity to prove jury misconduct through a Schwartz hearing, thereby depriving appellant of the opportunity to develop a record supporting its right to a new trial.
3 Minn. R. Evid. 606(b) states:
[HN5] Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or to dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
[*14] [HN6] The Minnesota Supreme Court set forth the rationale for the exclusion of juror testimony about a verdict or the deliberation process. See State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000). In Pederson, the supreme court explained: “The rationale for the exclusion of juror testimony about a verdict or the deliberation process is to protect juror deliberations and thought processes from governmental and public scrutiny and to ensure the finality and certainty of verdicts.” Id. The court further explained the rationale of rule 606(b) by noting the concern that jurors be protected from harassment by counsel after the verdict. Id. These are legitimate public policy concerns that support Minn. R. Evid. 606(b). The accepted fact that from time to time juries make mathematical mistakes in rendering their verdict does not rise to the constitutional level of a due process violation of a party’s right to a fair trial. In essence, this second argument of appellant is a remake of the first argument that there was a compromise verdict. Since we conclude there was not a compromise verdict, the judge properly did not order a Schwartz hearing based on either theory.
Appellant argues that it is entitled to an unconditional new trial due to evidence of juror misconduct on the face of the special verdict form. Appellant argues that the special verdict form is evidence of misconduct because, appellant claims, certain listed damages are irreconcilable. Specifically, appellant points out that: (1) the jury awarded Linda Timmer $ 3,000,000 in future pain and suffering, but only $ 150,000 in past pain and suffering; and (2) Linda Timmer’s award of $ 150,000 for past pain and suffering is the same as Jere Timmer’s past loss of consortium. Appellant asserts that the only logical explanation for the jury’s irrational damages awards is that the jury carefully attempted to engineer respondents’ net recovery, which constitutes misconduct.
[HN7] Anew trial may be granted when, among other things, the verdict is not supported by the evidence, errors of law occurred at the trial, or the damages awarded are excessive. Minn. R. Civ. P. 59.01. The district court has the discretion to grant a new trial and this court will not disturb its decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). [*16] An appellate court will uphold the denial of a motion for a new trial unless the verdict “is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).
The district court did take note of the difference between future and past pain and granted appellant’s motion for a new trial on the issue of future pain and suffering if respondents declined the court’s remittitur reducing that portion of the verdict from $ 3,000,000 to $ 1,650,000. However, respondents accepted the court’s remittitur, and that benefited appellants in the amount of $ 1,350,000. As an appellate court on review, we cannot now conclude that the remaining verdict is too high as a matter of law. Appellant is not entitled to a new trial based on its allegation that jury misconduct in calculating damages denied it of its right to a fair trial.
Appellant argues that under the Frye-Mack, Daubert, and Kumho standards for expert testimony, it is entitled to a new trial because the district court erroneously admitted Gauger’s expert [*17] testimony. 4 [HN8] The decision to admit expert opinion testimony is within the broad discretion of the district court. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977). To obtain a new trial based on evidentiary error, a claimant must show not only that the ruling was erroneous, but also that it resulted in prejudice. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).
4 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn. 1980); Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
[HN9] Recently, the Minnesota Supreme Court reaffirmed its adherence to the Frye-Mack standard. See Goeb v. Tharaldson, 615 N.W.2d 800, 813-14 (Minn. 2000). 5 Under the Frye-Mack standard, a novel scientific theory may be admitted if two requirements are satisfied. [*18] Id. at 814. But if the expert’s opinions do not relate to “novel scientific methods,” a Frye-Mack analysis is not necessary. See State v. DeShay, 645 N.W.2d 185, 191 (Minn. App. 2002) (holding that a Frye/Mack analysis was not necessary where expert testimony based on the ten-point gang-identification criteria did not constitute novel scientific evidence), aff’d 669 N.W.2d 878 (Minn. 2003).
5 The court in Goeb also refused to adopt the principals of Daubert and its progeny, and, therefore, appellant’s reliance on the Daubert is misguided. 615 N.W.2d at 814-15.
Based on the scope of Gauger’s testimony, his opinions related to the safety of the zip line landing site, not the actual zip line itself, as claimed by appellant. An expert opinion as to whether the zip line landing area was unsafe, and whether there is something in the condition of the work site that is inherently dangerous does not involve a novel scientific theory. [*19] Gauger’s expert opinion testimony did not constitute “novel scientific testimony” and a complete Frye/Mack analysis was not necessary.
Although a Frye/Mack analysis was not necessary to be admissible, Gauger’s testimony must at least meet the requirements of Minn. R. Evid. 702. This rule provides [HN10] “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702.
Appellant contends that the district court abused its discretion by admitting Gauger’s testimony, claiming Gauger was not qualified to be an expert witness. We affirm the district court. The district court found that: (1) Gauger is a professional engineer and has completed investigative work involving recreational facilities; (2) Gauger has reviewed hundreds of sites for safety purposes; and (3) Gauger has a background and familiarity with work sites and recreational facilities such as playgrounds and the Camp Snoopy amusement park at the Mall of America. The record [*20] reflects that Gauger visited the accident site on more than one occasion and viewed the zip line and landing area in use. The record reflects that Gauger reviewed a manual from the camp and criteria developed by the Association of Challenge Course Technology. Gauger testified extensively as to his opinion that the landing area was unsafe, and explained his reasoning. We find there was proper foundation for Gauger’s expert opinions, and the district court properly admitted his testimony.
Appellant argues that it is entitled to a new trial because the district court failed to grant appellant’s motion for a continuance after respondents’ late disclosure of Gauger’s opinion testimony. [HN11] When a district court denies a continuance at trial, this court reviews the ruling for a clear abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). Denial of a continuance shall be reversed only if the decision prejudiced the outcome of the trial. Chahla v. City of St. Paul, 507 N.W.2d 29, 31-32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).
The record shows that, four days prior to the commencement of trial, respondents served [*21] upon appellant a memorandum issued by Gauger stating his opinions that the landing area was unsafe. In denying appellant’s motion for a new trial on the basis of the district court’s refusal to grant a continuance, the district court stated that “the late or new disclosures regarding Mr. Gauger’s testimony were really nothing more that a re-disclosure of what had previously been disclosed.” The court further noted that:
Previous disclosures indicated that Mr. Gauger felt that the workplace or landing site was unsafe because Linda Timmer was required to stand on a slope. This opinion did not change. The only disclosure that appeared to be at all new and different was a reference to the ADA slope percentage recommendations, and that Mr. Gauger adopted this slope percentage as a reasonable standard.
In addressing appellant’s claim that it could not respond to the new information because of the fact that its expert had already been deposed and the testimony was established, the court stated:
the fact of the matter is that [appellant’s] expert simply expressed the opinion that the zip line was safe and reasonable, and that the design of the landing area was necessary for [*22] the zip line to function properly. He did not offer any opinion as to what would have been a safe grade for the landing area of the zip line. If there had been a disagreement as to the actual percentage of slope or the standard to be applied, then there may be some basis for the argument. However, that is clearly not the situation at hand. Additionally, [appellant] was aware that the slope grade of the landing area was a basis for the negligence claim prior to the deposition of its expert witness, Bart Broderson. [Appellant] had the opportunity to ask Mr. Broderson his opinion relative to the degree or percentage slope of the landing area. No inquiry was made. [Appellant] cannot later claim prejudice when the subsequent disclosure differed little from the prior disclosure.
The record supports the district court’s decision. We conclude the district court properly denied appellant’s motion for a continuance.
As is their right, even though respondents agreed to the conditional remittitur, once appellant challenged the verdict, respondents cross-reviewed on the issue of the remittitur. Respondents argue that the district court abused its discretion by granting a conditional [*23] remittitur of the damages awarded for future pain and suffering. The district court did reduce the amount of recoverable damages by approximately $ 1,350,000. Respondents argue that reduction was uncalled for in light of the medical testimony.
[HN12] Generally, a district court has broad discretion in determining if damages are excessive and whether the cure is a remittitur. Hanson v. Chicago, Rock Island & Pac. R. Co., 345 N.W.2d 736, 739 (Minn. 1984). When a district court has examined the jury’s verdict and outlined the reasons for its decision on a motion for remittitur, an appellate court is unlikely to tamper with that decision absent an abuse of discretion. Sorenson v. Kruse, 293 N.W.2d 56, 62-63 (Minn. 1980).
In ordering the conditional remittitur, the district court explained that:
The jury awarded $ 150,000 for past pain and suffering. Approximately 2.7 years had transpired from the date of the injury to the date of trial. Therefore, the $ 150,000 award equates to $ 55,555.56 per year for her past pain and suffering. On the other hand, the jury was advised that Linda Timmer had a 29-year life expectancy. The award of $ 3,000,000 for future [*24] pain and suffering, divided among those 29 years, would result in an annual award of damages for future pain and suffering in the amount of $ 103,448.28.
The district court addressed all the of the doctors’ expert testimony on future pain and suffering, and concluded that “although the medical testimony spoke of the need for future care or treatment, and the possibility of some degeneration, there was no specific testimony regarding future pain and suffering associated with any future surgery, care, or degeneration. Thus, the district court concluded that the drastic difference between the annual damages for past pain and suffering and future pain and suffering were not supported by the record.
In support of their claim that the remittitur was an abuse of discretion, respondents cited an exhaustive list of problems or potential problems and potential problems that Timmer will experience as a direct result of the accident. Respondents present a good argument. The record does not jump out on appellate review, as a record where a lack of a remittitur would be a miscarriage of justice. But, as noted, the decision to grant or deny a conditional remittitur is a highly discretionary [*25] decision within the purview of the district judge’s examination and weighing of the evidence. We conclude the district court’s conditional remittitur was reasoned and supported by the record.
Utah Skier Safety Act
UTAH CODE ANNOTATED
TITLE 78B. JUDICIAL CODE
CHAPTER 4. LIMITATIONS ON LIABILITY
PART 4. INHERENT RISKS OF SKIING
Go to the Utah Code Archive Directory
Utah Code Ann. § 78B-4-401 (2012)
§ 78B-4-401. Public policy
The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.
§ 78B-4-402. Definitions
As used in this part:
(1) “Inherent risks of skiing” means those dangers or conditions which are an integral part of the sport of recreational, competitive, or professional skiing, including, but not limited to:
(a) changing weather conditions;
(b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;
(c) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;
(d) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain;
(e) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes;
(f) collisions with other skiers;
(g) participation in, or practicing or training for, competitions or special events; and
(h) the failure of a skier to ski within the skier’s own ability.
(2) “Injury” means any personal injury or property damage or loss.
(3) “Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, nordic, freestyle, or other types of ski jumping, using skis, sled, tube, snowboard, or any other device.
(4) “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, freestyle, or other type of ski jumping, and snowboarding.
(5) “Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.
§ 78B-4-403. Bar against claim or recovery from operator for injury from risks inherent in sport
Notwithstanding anything in Sections 78B-5-817 through 78B-5-823 to the contrary, no skier may make any claim against, or recover from, any ski area operator for injury resulting from any of the inherent risks of skiing.
§ 78B-4-404. Trail boards listing inherent risks and limitations on liability
Ski area operators shall post trail boards at one or more prominent locations within each ski area which shall include a list of the inherent risks of skiing, and the limitations on liability of ski area operators, as defined in this part.
§ 72-11-201. Passenger ropeways — Purpose and scope
(1) In order to safeguard the life, health, property, and welfare of citizens while using passenger ropeways, it is the policy of the state to:
(a) protect citizens and visitors from unnecessary mechanical hazards in the design, construction, and operation of passenger ropeways, but not from the hazards inherent in the sports of mountaineering, skiing, snowboarding, mountain biking, and hiking, or from the hazards of the area served by passenger ropeways, all of which hazards are assumed by the sportsman; and
(b) require periodic inspections of passenger ropeways to ensure that each passenger ropeway meets “The United States of America Standard Institute Safety Code for Aerial Passenger Tramways,” or an equivalent standard established by rule under Section 72-11-210.
(2) (a) Except as provided in Subsection (2)(b), the committee, through the Department of Transportation, shall:
(i) register all passenger ropeways in the state;
(ii) establish reasonable standards of design, construction, and operational practices; and
(iii) make inspections as necessary to implement this section.
(b) The committee has no jurisdiction over the construction, modification, registration, or inspection of a private residence passenger ropeway.
Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218
Nicole Azad, Plaintiff and Appellant, v. Mill Creek Equestrian Center, Inc., Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT
2004 Cal. App. Unpub. LEXIS 11218
December 13, 2004, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.
PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC070887. Paul G. Flynn, Judge.
CORE TERMS: equestrian, gross negligence, lesson, ring, dive, misconduct, summary judgment, extreme departure, training, riding, sport, horse, standard of conduct, ordinary negligence, instructor, willful, rider, risks inherent, recommended, dismount, manual, horseback riding, jumping, notice of appeal, material fact, totally outside, triable issue, inappropriate, inherently, correctly
COUNSEL: Law Offices of Diane Goldman and Diane Goldman for Plaintiff and Appellant.
Clinton & Clinton, David A. Clinton and Katherine M. Fesler for Defendants and Respondents.
JUDGES: COOPER, P. J.; RUBIN, J., FLIER, J. concurred.
OPINION BY: COOPER
Appellant injured herself falling off a horse during a horseback riding lesson. In this appeal, she challenges the award of summary judgment entered in favor of the equestrian center. Reviewing the record de novo, we find Azad released all claims other than gross negligence and willful misconduct. She does not allege any willful misconduct. Because she provides no evidence of gross negligence, the trial court correctly entered summary judgment. We shall affirm.
[*2] The facts interpreted in the light most favorable to Azad indicate the following. On March 16, 2001, Nicole Azad, an inexperienced rider, had a private horseback riding lesson at Mill Creek Equestrian Center, Inc. (MCEC). Prior to her lesson, she signed a release of liability, which was part of a two page document. Each page of the release contained a heading identifying it as a release.
During Azad’s lesson, she rode a horse named Bruno and was instructed by Sandra Samel. Samel chose to hold the lesson in a ring known as the jumping ring even though it was not the ring commonly used for beginning lessons. At the same time as Azad’s lesson, other riders were in the jumping ring including Courtney Leonard. Leonard rode a horse named Dan, who had been injured. Leonard fell off Dan, and Dan started running. In response to Dan, Bruno started running. Azad was unable to gain control over Bruno. Samel did not instruct Azad to immediately dismount and did not grab Bruno’s reins. Bruno jumped the fence, which was not as high as the standard in the industry. Azad fell off Bruno and fractured her leg.
Azad’s expert, Jill Cooke, opined that the height of the railings in the jumping ring [*3] ranged from two to two and a half feet where industry standard was three and a half feet. Cooke also concluded that “separated schooling areas are recommended.” According to Cooke, Samel should have chosen a different ring for Azad’s lesson, one dedicated to inexperienced riders. Cooke also concluded that Samel should have instructed Azad to dismount Bruno and should have held Bruno’s reigns. Cooke opined that “Ms. Samel’s failure to act promptly and appropriately to protect her student thereby created new risk to [Ms. Azad], over and above those inherent in the sport.”
Azad filed a complaint for negligence against MCEC and alleged that MCEC committed both negligence and gross negligence. MCEC moved for summary judgment.
The trial court granted MCEC’s motion for summary judgment. The court found that Azad’s express waiver was valid and that the assumption of risk doctrine applied. Azad appealed. The notice of appeal was filed after the order granting summary judgment but before judgment was entered. Construing the notice of appeal liberally, we deem this an appeal from the judgment which was subsequently entered. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn 7.) [*4]
Azad argues there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.
I. Express Assumption of Risk
Prior to her horse back riding lesson, Azad signed the following release:
“I agree that in consideration for this stable allowing my participation in this activity, under the terms set forth herein and in the MILL CREEK RULES AND REGULATIONS of which I received a copy, read, and understand, I the rider and the parent or legal guardian thereof if a minor, and on behalf of my heirs, administrators, personal representative or assigns, do agree to hold harmless, release and discharge MILL CREEK EQUESTRIAN CENTER, its owners, agents, employees, officers, directors, representatives, assigns, members, owner(s) of premises and trails, affiliated organizations, insurers, and others acting on its behalf (hereinafter collectively referred to as associates) of and from all claims, demands, causes of action and legal liability whether the same be known or unknown, anticipated or unanticipated, due to MILL CREEK [*5] EQUESTRIAN CENTER’S and/or its associates ordinary negligence; and I do further agree that except in the event of MILL CREEK EQUESTRIAN CENTER’S gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action against MILL CREEK EQUESTRIAN CENTER and ITS ASSOCIATES as stated above in this clause, for any economic and non-economic losses due to bodily injury, death, property damage sustained by me and/or my minor child and/or legal ward in relation to the premises and operations of MILL CREEK EQUESTRIAN CENTER to include while riding, handling, or otherwise being near horses owned by or in the care, custody and control of MILL CREEK EQUESTRIAN CENTER, whether on or off the premises of MILL CREEK EQUISTRIAN CENTER. I further understand that all riding engaged in at MILL CREEK EQUESTRIAN CENTER is solely at my own risk and that MILL CREEK EQUESTRIAN CENTER is not liable for any injury which may occur to me on its premises, whether bodily injury or otherwise. I further agree to release MILL CREEK EQUESTRIAN CENTER, its agents and employees from any and all liability for any injuries I may sustain while riding and agree to [*6] indemnify and hold MILL CREEK EQUESTRIAN CENTER harmless as to all claims, actions, damages, costs and expenses, including attorney’s fees, arising therefrom. [P] The aforesaid release and limitation of liability includes, without limitation, any obligations of MILL CREEK EQUESTRIAN CENTER with respect to consequential damage and negligent behavior of any of its employees. . . .” (Emphasis added.)
A. Validity of the Release
Citing Conservatorship of Estate of Link (1984) 158 Cal. App. 3d 138, 141-142, 205 Cal. Rptr. 513 (Link), Azad argues that the release is not enforceable because it is not readily identifiable as a release. In Link, the court found that a release should be distinguished from other paragraphs of the document; a release should be conspicuous; and a release must clearly convey that rights are being released. (Ibid.)
The release satisfies the Link criteria. It contains the title “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” Each page of the two page document contains a heading which is printed in bold print and underlined “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, in a paragraph [*7] titled “signer statement of awareness,” there is an acknowledgment of understanding the liability release, which Azad signed. Unlike in Link, the release does not appear to be “calculated to conceal and not to warn the unwary.” (Link, supra, 158 Cal. App. 3d at p. 141.)
Azad claims that it is not clear “what conduct is exempted from liability.” She faults the release for “simultaneously purporting to encompass claims based upon [ordinary negligence] and excluding claims based upon [gross negligence].” Azad points out that, in Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 242 Cal. Rptr. 784, a case not involving a release, the court held “in light of the adoption of the doctrine of comparative negligence in California, any attempt to categorize gross negligence separately from ordinary negligence is unnecessary.” (Id. at p. 330.) Continental Insurance Co., however, did not hold that the distinction between ordinary and gross negligence never is relevant or is inherently ambiguous. To the contrary, it recognized that the distinction remained viable where a statute proscribes gross negligence. [*8] (Id. at p. 329.) The express contractual provision distinguishing between ordinary and gross negligence is not inherently ambiguous.
Thus, the release covers conduct other than gross negligence and intentional misconduct. 1 Azad does not allege intentional misconduct. In the next section, we consider whether Azad has provided any evidence of gross negligence.
1 MCEC argues that the “Release was specific enough to warn Appellant, and to convey that Respondents would not be held liable for any physical injury to Appellant.” While the release discusses liability for “any injury” it expressly excludes “gross negligence and willful and wanton misconduct.”
II. Implied Assumption of Risk
By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. (Knight v. Jewett (1992) 3 Cal.4th 296, 311.) A person does not consent to a breach of a duty by another that increases the risks inherent in the sport. (Ibid.) [*9] “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1005 (Kahn).)
In Kahn, supra, 31 Cal.4th at p. 996, our high court considered the doctrine of assumption of the risk in the context of a lawsuit against a swimming instructor. The court held that a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.'” (Ibid.) The court further found evidence of reckless conduct sufficient to raise a triable issue of material fact where a swim coach required a student to dive into a shallow pool without providing her any training, after promising she would not be required to dive. (Id. at p. 996.) The court specifically relied on the following evidence: “the lack of training in the shallow-water dive disclosed by plaintiff’s evidence, especially in the face of the sequences training recommended in the [*10] Red Cross manual submitted by plaintiff; the coach’s awareness of plaintiff’s deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive.” (Id. at p. 1012.)
Here, Azad has alleged gross negligence on the part of both her instructor and the equestrian center. Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186, quoting Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138, 181 Cal. Rptr. 732.) This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity. Therefore, we consider whether Azad has provided any evidence of an extreme departure from the ordinary standard of conduct. [*11] 2
2 Both parties cite numerous cases decided under an ordinary negligence standard, including this division’s decision in Giardino v. Brown (2002) 98 Cal.App.4th 820. We need not assess the applicability of these cases in light of Kahn because here Azad expressly released claims of ordinary negligence.
Azad relies almost exclusively on evidence from her expert, Cooke. However Cooke’s testimony does not demonstrate an extreme departure from the ordinary standard of conduct. Cooke states that the railing should have been higher, it was “recommended” that a ring be used for only one lesson, the choice of rings was “inappropriate,” and Samel’s response was “inappropriate.” Samel should have “immediately had her student dismount.” Cooke also states that Samel was “inadequately trained,” but provides no basis for this conclusion. Thus, this case is not like Kahn, where the plaintiff provided an established training manual and showed an extreme departure from this manual in that there was [*12] evidence she received no training at all. Because Azad identifies no extreme departure from the ordinary standard of conduct, she fails to raise a triable issue of material fact. The trial court correctly entered summary judgment in favor of MCEC. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
The judgment is affirmed.
COOPER, P. J.
Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.
281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
June 24, 2011, Filed
PRIOR HISTORY: [***1]
Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.
4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.
5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.
COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.
David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.
Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.
JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.
OPINION BY: HEAVICAN
[**847] [*781] Heavican, C.J.
The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.
Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.
This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.
Palmer’s Familiarity With Treadmills.
During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.
Palmer’s Membership Agreement and Health History Questionnaire.
At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:
WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside’s] programs or activities and your use of [Lakeside’s] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.
The health history questionnaire signed by Palmer stated in relevant part as follows:
1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .
2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .
Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.
ASSIGNMENTS OF ERROR
Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.
STANDARD OF REVIEW
 [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. 1
1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
 [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. 2
Waiver and Release.
Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.
[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. 3 In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.
[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.
Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. 4
3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).
4 Id. at 686, 789 N.W.2d at 267.
A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.
Lakeside’s Gross Negligence or Willful and Wanton Conduct.
At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.
Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.
[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. 6 [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. 7 We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.
5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).
We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.
In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.
In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.
In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.
In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that
based on [the consultant’s] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.
Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.
Assumption of Risk.
Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.
The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.
Wright and Miller-Lerman, JJ., not participating.