Get check boxes and initials out of your release!

If the defendants release did not have a catch all phrase at the bottom of the document the release would be invalid because an initial had not been signed by the plaintiff.

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

State: Pennsylvania: United States District Court for the Middle District of Pennsylvania

Plaintiff: Patrice Scott-Moncrieff

Defendant: The Lost Trails, LLC, et al

Plaintiff Claims: Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The plaintiff did not initial one of the initial boxes on the release she signed. This gave the plaintiff enough of an argument to make an appellate argument. But for a final paragraph that covered the uninitialed box language this release would have failed.

Facts

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses.

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

The court first reviewed the validity of releases under Pennsylvania law. Pennsylvania has a three-part test to determine if releases are valid.

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state.

The three requirements all evolve around the public policy argument. It is against public policy to have someone sign a release for a necessity, where the bargaining power is not equal or if the contract is so nasty it should not be signed by anyone. A release, a contract, to ride an ATV is valid because it is not a necessity, it is between parties of equal bargaining power and it is voluntary.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”

If the release passes the first three tests, it still must be scrutinized by the court to determine if it clearly relieves the defendant of liability. If the language of the agreement sets forth the requirements necessary for the plaintiff to understand she is liable for her injuries.

Even if an exculpatory clause is facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. The following standards guide a court’s determination of the enforceability of an exculpatory clause:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

If the release, or any contract under Pennsylvania law meets those tests it is finally reviewed to determine if both parties clearly understood the intent of the agreement. In the case of a release, both parties must understand that the possible plaintiff is giving up his or her right to sue the possible defendant.

Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter.

In this case, the court found the release passed all of the tests.

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

Once the release was found to be valid the next issue was whether or not the plaintiff had signed the release. The plaintiff argued because she had not initialed an initial box, had not read the release in its entirety

One who is about to sign a contract has a duty to read that contract first.” In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.)

The court did look at situations were the release was enforceable even if the plaintiff did not read the release or could not read the release.

…(written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

The plaintiff argued the release was unenforceable because it was inconspicuous. However, the argument seemed to be based on case law that found waivers to be void then the real facts of this case.

The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply.

The saving language of the release that covered the un-initialed section 10 was. Even though paragraph 10 was not initialed, the heading clearly stated what the document was and the intentions of the parties. The language that covered the un-initialed paragraph 10 was:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

The court found that the entire agreement was covered by this saving language above. So, the failure to initial one paragraph was not enough to void the release.

The court summarized its reasoning for finding the release valid and upholding the dismissal of the plaintiff’s claims because of the release.

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable.

So Now What?

But for language at the bottom of the release which the court found to cover for the language that was not initialed the release would have failed. It is important to note; the court analysis stated the language that was not initialed was not part of the release.

If you have initial boxes, initials, etc., and one box is not initialed, in Pennsylvania that paragraph that is not initialed or initialed is invalid. Dependent upon the language, your release maybe void, if you don’t have the boxes checked or initialed.

Why use them anyway. Here the court explains why they are unnecessary, the language at the bottom of your release should tie everything together. Once you sign you acknowledge that you have read and understood the entire document. The checkboxes or initials can only hurt you in a release, not help you.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC

United States District Court for the Middle District of Pennsylvania

August 29, 2018, Decided; August 29, 2018, Filed

CIVIL ACTION NO. 3:16-CV-1105

Reporter

2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants

Subsequent History: Appeal filed, 09/13/2018

Core Terms

exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym

Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.

For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.

Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM OPINION

Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.

I. Factual Background and Procedural History

The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.

All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.

Local Rule 56.1 (emphasis added).

To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).

The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:

In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.

By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:


2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.

3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.

4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.

5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.

6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.

7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.

8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.

9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.

(Doc. 54-1, at 20-21).

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

(Doc. 54-1, at 21).

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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. 56(a). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).

As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. Discussion

Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).

A. The Exculpatory Clause is Valid

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.

B. The Exculpatory Clause is Enforceable

Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Topp Copy, 626 A.2d at 99.

The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.

1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:

Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?

A: Yes.

Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?

A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.


Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.

A: Yes.

Q: And you’re not involved in that part of it, the sign in, and the waiver.

A: No, no. Leslie or one [*16] of her employees would work the front desk.

(Doc. 54-1, at 12; Anneman Dep. at 36).

The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.

Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

3. The waiver is properly conspicuous.

Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.

However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).

The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.

Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

(Doc. 54-1, at 21).

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.

IV. Conclusion

For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.

An appropriate Order follows.

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

ORDER

AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.

BY THE COURT:

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge


A fly-fishing lawsuit, a first.

Montana Federal Court covers a lot of interesting legal issues for the OR industry in this decision. However, defendant is in a tough position because the statutes provide no help, he can’t use a release and probably like most fly-fishing guides; he believes he won’t be sued.

McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

State: Montana

Plaintiff: Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, and Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin

Defendant: James Yeager d/b/a Jim Yeager Outfitters

Plaintiff Claims: negligence, negligent infliction of emotional distress, and loss of consortium

Defendant Defenses: Montana Recreation Responsibility Act

Holding: Split, mostly for the defendant

Year: 2018

Summary

At the end of a float fly fishing trip, the boat hit a rock throwing the deceased into the river. While attempting to get the deceased back in the boat the deceased partner fell in. The deceased yelled to grab her because she could not swim. The defendant grabbed the girlfriend and maneuvered the boat through rapids.

The deceased drowned, (supposedly). Neither were wearing PFDs.

Facts

Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.

McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.

On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.

McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.

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

Only the legal issues affecting fly fishing or the outdoor industry will be reviewed. This decision is a result of both parties filing motions for summary judgment, so there is no chronological hierarchy of how the decision is written. Each motion is tackled by the judge in the order to make the following arguments more manageable.

A few things to remember. Montana does not allow an outfitter or guide to use a release. See Montana Statutes Prohibits Use of a Release.

Both parties filed motions concerning the Montana Recreation Responsibility Act (MRRA). The MRRA is similar to the Wyoming Recreational Safety Act, both of which are solely assumption of the risk statutes and weak overall. The plaintiff argued the MRRA was unconstitutional on several grounds, all of which were denied. The defendant argued the MRRA should bar the plaintiff’s claims which were also denied.

The first issue was inherent risks under the MRRA are not defined per activity or in general.

Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented by the use of reasonable care. Mont. Code Ann. § 27-1-752(2).

This leaves a monstrous gap in the protection it affords, in fact, does not afford outfitters and guides in Montana any real protection.

The court did not agree that the MRRA was broad enough to protect the defendant in this case.

Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.

Because there was a genuine issue of material fact (a mix of plausible opinions) the MRRA was not broad or strong enough to stop the plaintiff’s claims and the defendant’s motion failed.

The plaintiff argued the MRRA was void because it was vague, it did not define inherent risk.

The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” The Montana Supreme Court has similarly declared that a statute is unconstitutionally vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” “[P]erfect clarity and precise guidance are not required.” A statute is not vague “simply because it can be dissected or subject to different interpretations.”

The plaintiff also argued that because the MRRA did not define risk that it was void.

A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning.

The plaintiff argued they should be able to sue for negligent infliction of emotional distress (“NEID”).

To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” The question of whether the threshold level of emotional dis-tress can be found is for the Court to determine. (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”).

In Feller, the Montana Supreme Court considered several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plain-tiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional dis-tress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event.

The plaintiff also argued they should be able to sue for loss of consortium.

Montana law recognizes loss of consortium claims by an adult child of an injured parent. In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.”

In establishing a loss of parental consortium claim, the plaintiff may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.”

The court then looked at the issue of abnormally dangerous. A finding of that an activity is abnormally dangerous brings more damages and fewer requirements to prove part of the negligence of the defendant.

“Whether an activity is abnormally dangerous is a question of law.” No court has held float fly fishing is an abnormally dangerous activity, and this Court declines Plaintiffs’ invitation to be the first to do so.

So Now What?

A statute that protects defendants based on assumption of the risk does so because it identifies specific risk and broadens the definitions of what an inherent risk is. An example would be the Colorado Skier Safety Act. That act describes the inherent risk of skiing and then adds dozens of more risk, which are beyond the normal scope of inherent.

Both the MRRA and the Wyoming Recreational Safety Act statutorily defines the common law but does nothing to broaden or strengthen the common law. They could better be defined as politically pandering, an attempt by a politician to make constituents feel better by giving them something, which, in reality, has no value.

The fly-fishing outfitter was caught in Montana’s lack of available defenses, no statutory protection and no availability of a release. He might be able to strengthen his defenses by having his clients sign an Assumption of the Risk Document. He also might offer them PFDs.

Furthermore, remember in most whitewater or cold-water deaths drowning is not the cause of the death. Most people die of a heart attack. risk or Wikipedia: Cold Shock Response.

What do you think? Leave a comment.

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McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

Charles P. Mcjunkin, deceased, by and through his executor and personal representative, Rhett Mcjunkin, and Rhett Mcjunkin, executor and personal representative, on behalf of the heirs of Charles P. Mcjunkin, Plaintiffs, vs. James Yeager d/b/a Jim Yeager Outfitters, Defendant.

CV 17-12-BLG-TJC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BILLINGS DIVISION

2018 U.S. Dist. LEXIS 169321

September 28, 2018, Decided

September 28, 2018, Filed

COUNSEL: [*1] For Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin, Plaintiffs: Philip L. McGrady, LEAD ATTORNEY, McGRADY LAW, Whitefish, MT.

For James Yeager, doing business as, Jim Yeager Outfitters, Defendant: Ross Daniel Tillman, LEAD ATTORNEY, John M. Newman, BOONE KARLBERG, P.C., Missoula, MT.

JUDGES: TIMOTHY J. CAVAN, United States Magistrate Judge.

OPINION BY: TIMOTHY J. CAVAN

OPINION

ORDER

Rhett McJunkin, as personal representative of the estate of Charles P. McJunkin, and on behalf of the heirs of Charles P. McJunkin (“Plaintiffs”), brings this action against Defendant James Yeager, doing business as Jim Yeager Outfitters (“Yeager” or “Defendant”), in relation to a fatal boating accident that occurred on the Stillwater River near Columbus, Montana. Plaintiffs assert claims for negligence, negligent infliction of emotional distress, and loss of consortium. (Doc. 1.)

Presently before the Court are Plaintiffs’ Motion to Amend the Complaint (Doc. 23), Plaintiffs’ Motion for Partial Summary Judgment Regarding the Constitutionality of the Montana Recreation Responsibility Act [*2] (Doc. 28), and Defendant’s Motion for Summary Judgment (Doc. 31). The motions are fully briefed and ripe for the Court’s review.

Having considered the parties’ submissions, the Court finds Plaintiffs’ Motion to Amend should be DENIED, Plaintiff’s Motion for Partial Summary Judgment should be DENIED, and Defendants’ Motion for Summary Judgment should be GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND1

1 The background facts set forth here are relevant to the Court’s determination of the pending motions for summary judgment and are taken from the parties’ submissions and are undisputed except where indicated.

Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin (“McJunkin”), on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.

McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set [*3] of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.

On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.

McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs [*4] contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

[HN1] Summary judgment is appropriate where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

[HN2] The party seeking summary judgment always bears the initial burden of establishing the absence of a genuine [*5] issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party’s case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-60, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

[HN3] If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party must “go beyond the pleadings and by ‘the depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). The opposing party cannot defeat summary judgment merely by demonstrating “that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of the [*6] nonmoving party’s position is not sufficient.”) (citing Anderson, 477 U.S. at 252).

III. DISCUSSION

A. Cross-Motions for Summary Judgment Related to the Montana Recreation Responsibility Act

Plaintiffs assert Yeager’s negligence caused McJunkin’s death. Yeager contends Plaintiffs’ negligence claim fails as a matter of law because it is barred by Montana’s Recreation Responsibility Act (the “MRRA”), Mont. Code Ann. § 27-1-751, et seq. Thus, Yeager argues summary judgment on the negligence claim is warranted.

Plaintiffs counter that the MRRA is unconstitutionally vague, and violates the constitutional guarantee of equal protection and right to full legal redress. Plaintiffs, therefore, move for partial summary judgment declaring the MRRA unconstitutional. Plaintiffs further assert that even if the MRRA is constitutional, there are genuine issues of material fact which preclude summary judgment.

1. Yeager’s Motion for Summary Judgment under the MRRA

[HN4] The MRRA limits the liability of recreational opportunity providers for injuries resulting from the inherent risks of sports or recreational opportunities.2 Specifically, the MRRA provides in relevant part:

(1) A person who participates in any sport or recreational opportunity assumes the inherent risks in [*7] that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for all injury or death to the person and for all damage to the person’s property that result from the inherent risks in that sport or recreational opportunity.

(2) A provider is not required to eliminate, alter, or control the inherent risks within the particular sport or recreational opportunity that is provided.

(3)(a) Sections 27-1-751 through 27-1-754 do not preclude an action based on the negligence of the provider if the injury, death, or damage is not the result of an inherent risk of the sport or recreational opportunity.

Mont. Code. Ann. § 27-1-753.

2 “Sport or recreational opportunity” is defined broadly in the MRRA as “any sporting activity, whether undertaken with or without permission, include but not limited to baseball, softball, football, soccer, basketball, bicycling, hiking, swimming, boating, hockey, dude ranching, nordic or alpine skiing, snowboarding, snow sliding, mountain climbing, river floating, whitewater rafting, canoeing, kayaking, target shooting, hunting, fishing, backcountry trips, horseback riding and other equine activity, snowmobiling, off-highway vehicle use, agritourism, an on-farm educational opportunity, and any similar recreational activity.” Mont. Code. Ann. § 27-1-752(4).

The MRRA defines “Inherent risks” as:

[T]hose dangers or conditions that are characteristic of, intrinsic to, or an integral part of any sport or recreational activity and that cannot be prevented by the use of reasonable care.

Mont. Code Ann. § 27-1-752(2).

[HN5] When interpreting a statute, a court is required to look to the plain meaning of the words. Clarke v. Massey, 271 Mont. 412, 897 P.2d 1085, 1088 (1995). A court will only resort to the legislative history of a statute if the legislative intent cannot be determined from the statute’s plain wording. Id. “[T]he office of judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert [*8] what has been omitted or to omit what has been inserted.” Mont. Code Ann. § 1-2-101.

Yeager maintains that the statute has a simple, straight-forward application to the facts of this case. He argues McJunkin’s death was caused by drowning; falling out of a boat and drowning is an inherent risk of fishing from a raft; therefore, Plaintiffs’ negligence claim is barred under the MRRA as a matter of law. In short, Yeager asserts because the injury in this case involved drowning while fishing from a raft, the MRRA precludes Plaintiffs’ claim. (Doc. 32 at 15.)

Yeager reads the MRRA much too broadly. Construing the statute in this fashion would immunize providers of recreational activities from their own negligence. The Court finds that such a construction would be contrary to the statute’s plain words, the legislative intent in enacting the legislation, and would likely render the MRRA unconstitutional.

[HN6] Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented [*9] by the use of reasonable care. Mont. Code Ann. § 27-1-752(2). Therefore, the MRRA does not insulate a provider from all risks which are characteristic of, or intrinsic to the activity. It only provides protection for those risks which cannot be prevented with the use of reasonable care. In order to make this determination, it is necessary to look at the facts and circumstances of each case and the specific risk or condition involved.

Wyoming has a similar “Recreation Safety Act.” Wyo. Stat. Ann. §§ 1-1-121 through 1-1-123. Like the MRRA, the Wyoming Act provides that “[a]ny person who takes part in any sport or recreational opportunity assumes the inherent risk in that sport or recreational opportunity, whether those risks are known or unknown . . . .” Wyo. Stat. Ann. § 1-1-123(a). It also similarly states that a provider of the “recreational opportunity is not required to eliminate, alter, or control the inherent risks” of the activity. Wyo. Stat. Ann. § 1-1-123(b). One critical difference between the two acts, however, is the definition of an inherent risk. The MRRA and the Wyoming Act both define inherent risk to mean “those dangers or conditions which are characteristic of, intrinsic to, or an integral part” of the activity. Wyo. Stat. Ann. § 1-1-122(a)(i). But the Wyoming Act’s definition does not also include the MRRA’s requirement [*10] that the risk “cannot be prevented by the use of reasonable care.”

Nevertheless, the construction of the Wyoming Act is instructive as far as the similarities go. Courts which have construed and applied the Wyoming statute have rejected the broad, general interpretation advanced by Yeager in this case. To determine what risks are inherent, decisions under the Wyoming Act have consistently required that a court “go beyond a broad characterization and inquire into the specific circumstances of both [the plaintiff’s] actions and those of the recreation provider.” Creel v. L & L, Inc., 2012 WY 124, 287 P.3d 729, 736 (Wyo. 2012).

In Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000), for example, the plaintiff was injured during a guided horseback trail ride. The injury occurred when the plaintiff’s saddle slipped around to the belly of the horse, causing the plaintiff to fall to the ground. The defendant moved for summary judgment under the Wyoming Recreation Safety Act, arguing that a slipping saddle is an inherent risk of horseback riding. In determining the application of the Act, the Tenth Circuit made clear that the risk in question must be not be evaluated broadly or generally, but in the context of the specific factual setting presented.

Horseback riding undoubtedly carries some inherent risk [*11] that the rider will fall off the horse and get injured. A horse could stumble on an uneven path, or rear, or simply begin to gallop for no apparent reason. All of these risks clearly would qualify as inherent risks of horseback riding. Simply because some risks are inherent in horseback riding, however, does not mean that all risks of falling from a horse are necessarily inherent; instead, it is necessary to look factually at the specific risk to which the rider was exposed. When attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the rider was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record. See Madsen, 31 F.Supp.2d at 1328 (“The Court believes that one must look to the specific facts of a case to see whether there is a duty, and not simply look to the abstract character of the risk.”).

Cooperman, 214 F.3d at 1167.

The same evaluation must be conducted under the MRRA. It is not enough to find that falling out of a boat and drowning is a general risk of fishing from a raft; therefore, drowning is an inherent risk in fishing. Although there may be circumstances where the risk of drowning [*12] cannot be prevented with the use of reasonable care, it is undoubtedly true the risk may be prevented in many other circumstances.

Therefore, each case must be examined in light of the specific factual context of the case to determine whether the specific risk involved could have been prevented using reasonable care. As the Wyoming Supreme Court points out, “[s]ome risks may occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided. Thus, atypical or uncharacteristic risks can arise even in those specific sports the Wyoming legislature clearly intended to exempt from liability for inherent risks.” Dunbar v. Jackson Hole Mtn. Resort Corp., 392 F.3d 1145, 1148–49 (10th Cir.2004).

In addition, Yeager’s broad interpretation of the MRRA would effectively immunize providers of a recreational opportunity from their own negligence. If providers were protected from all fishing-related drownings under the MRRA, they would be relieved of liability where the death was caused by negligence, or even by willful or wanton misconduct. For example, it would apply not only to situations where a participant falls out of a raft and drowns without negligent conduct by the provider; it would [*13] also apply where the provider negligently causes a raft to collide with a bridge abutment or other known obstruction in the river.

Such an application would be contrary to the legislative intent of the MRRA, which expressly provides that the Act does not “preclude an action based on the negligence of the provider. . . .” Mont. Code Ann. § 27-1-753. As recognized under the Wyoming Act, the “intent behind the Recreation Safety Act was not to preclude parties from suing for a provider’s negligence, it was merely to stop people from suing providers for those risks that were inherent to a sport.” Madsen v. Wyoming River Trips, 31 F.Supp.2d 1321, 1328 (D. Wyo. 1999).

Finally, construing the MRRA as Yeager urges would likely render the Act unconstitutional. [HN7] Statutes should be construed “to avoid an unconstitutional interpretation if possible.” Hernandez v. Bd. of Cty. Comm’rs, 2008 MT 251, 345 Mont. 1, 189 P.3d 638, 642 (Mont. 2008). The Montana Supreme Court found a prior version of Montana’s Skier Responsibility Act unconstitutional because it prohibited a skier “from obtaining legal recourse against an operator even if the injury is proximately caused by the negligent or even intentional actions of the operator.”3
Brewer v. Ski-Lift, Inc., 234 Mont. 109, 762 P.2d 226, 230 (Mont. 1988). The Court found that although the state had a legitimate interest in protecting the economic vitality of the ski industry, there was no rational relationship [*14] between that purpose and requiring that skiers assume all risks for injuries regardless of the presence of negligence by the ski area operator. Id. at 230. See also, Oberson v. U.S. Dept. of Ag., Forest Serv., 2007 MT 293, 339 Mont. 519, 171 P.3d 715 (Mont. 2007) (snowmobile liability statute’s gross negligence standard, which relieved snowmobile operators from their negligent conduct, violated equal protection).

3 The statute at issue in Brewer barred recovery from a ski area operator if the skier suffered an injury resulting “from participating in the sport of skiing.” Brewer, 762 P.2d at 229 (citing Mont. Code Ann. § 23-2-736(1)).

The purpose of the MRRA is substantially the same as the skier and snowmobile liability statutes — protection of providers of recreational activities from liability for risks over which the provider has no control. Under Yeager’s interpretation of the MRRA, providers of float fly fishing would be immune from liability for drownings, even when caused by the provider’s own negligence. Under Brewer and Oberson, such a construction would violate Plaintiffs’ rights to equal protection, due process, and access to the courts.

Therefore, whether the MRRA protects a provider of recreational opportunities from certain risks cannot be determined by looking at the broad, abstract character of the risk. Instead, the specific facts and circumstances in each case must be examined to determine whether the risk involved can be prevented by the use of reasonable care. If so, the MRRA does not [*15] shield the provider from liability.

That being established, the determination of whether McJunkin’s drowning resulted from an inherent risk of floating and fly fishing is not appropriate for summary judgment. While there may be cases where there are no genuine issue of material fact, and the issue may be appropriately decided as a matter of law, [HN8] the determination of whether a risk is an inherent risk is generally a factual determination for the jury to decide. See e.g. Mead v. M.S.B., Inc., 264 Mont. 465, 872 P.2d 782, 788-89 (Mont. 1994) (holding whether an inherent risk had been established under the Skier Responsibility Act was a question of fact to be resolved by the trier of fact); Cooperman, 214 F.3d at 1169 (noting the question of what is an inherent risk is normally a question of fact for the jury); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995) (“when genuine issues of material fact exist, it is proper to present the issue to the jury of whether a risk is inherent to a particular activity.”).4

4 At the time the Halpern case was decided, the Wyoming Act’s definition of inherent risk was similar to the MRRA. It was defined as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Halpern, 890 P.2d at 564. The highlighted portion of the definition was subsequently removed by the Wyoming legislature.

Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning [*16] is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.

Accordingly, the Court finds there are genuine issues of material fact regarding whether the risks encountered by McJunkin could have been prevented by the use of reasonable care.

As such, Yeager’s Motion for Summary Judgment is DENIED as to Count I of the Complaint.

2. Plaintiffs’ Motion for Summary Judgment

McJunkin challenges the constitutionality of the MRRA on due process and equal protection grounds. [HN9] Statutes are presumed to be constitutional, and “the party challenging the constitutionality of a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt.” Globe v. Montana State Fund, 2014 MT 99, 374 Mont. 453, 325 P.3d 1211, 1216 (Mont. 2014). “‘The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action . . . .'” Davis v. Union Pac. R. Co., 282 Mont. 233, 937 P.2d 27, 31 (1997) (quoting Fallon County v. State 231 Mont. 443, 753 P.2d 338, 340 (Mont. 1988). “[E]very [*17] possible presumption must be indulged in favor of the constitutionality of the Act.” Id. Thus, courts “will construe a statute to further, rather than to frustrate, the Legislature’s intent according to the plain meaning of the statute’s language.” In re Custody and Parental Rights of D.S., 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). See also Hernandez, 189 P.3d at 642 (stating it is the court’s duty “to avoid an unconstitutional interpretation if possible”).

a. The MRRA is not Unconstitutionally Vague

Plaintiffs argue the MRRA is unconstitutionally vague on its face, and as applied. Plaintiffs contend the MRRA purports to limit liability for injuries that result from inherent risks, but it does not define “inherent risk” in any clear manner. Thus, Plaintiffs argue there is no fair way to apply the statute because it is unclear what constitutes an “inherent risk.”

[HN10] The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-99, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967). The Montana Supreme Court has similarly declared that a statute is unconstitutionally [*18] vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” In re Custody, 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). “[P]erfect clarity and precise guidance are not required.” Id. A statute is not vague “simply because it can be dissected or subject to different interpretations.” Montana Media, Inc. v. Flathead Cty., 2003 MT 23, 314 Mont. 121, 63 P.3d 1129, 1140 (Mont. 2003).

Here, the Court finds the MRRA is not unconstitutionally vague on its face. Section 27-1-752(2) plainly provides a standard for assessing what constitutes an “inherent risk.” The standard is established with common, readily-understood terms, and it incorporates the familiar negligence standard of reasonable care. Mont. Code Ann. § 27-1-752(2).

Further, contrary to Plaintiffs’ argument, the fact the MRRA does not specifically enumerate the risks inherent in each of the 30 recreational activities listed in the statute does not make the Act unconstitutional. [HN11] The Montana Supreme Court has recognized that even if a term in a statute is not exhaustively defined, and allows the court some discretion in determining whether the evidence presented satisfies the statute, the statute will not be rendered unconstitutionally vague. See In re Custody, 122 P.3d at 1243 (holding that although § 41-3-423(2)(a) did not contain an exhaustive list of conduct that constitutes the term “aggravated circumstances,” [*19] the statute was not void for vagueness). Moreover, even the more specific recreational liability statutes that Plaintiffs uses for comparison, provide non-exclusive lists of inherent risks. See e.g. Mont. Code Ann. § 23-2-702(2) (“‘Inherent dangers and risks of skiing’ means those dangers or conditions that are part of the sport of skiing, including: . . .”); § 23-2-822(2) (“Risks inherent in the sport of off-highway vehicle operation include . . .”); § 27-1-726(7) (“‘Risks inherent in equine activities’ means dangers or conditions that are an integral part of equine activities, including but not limited to: . . .”).

The Court further finds the MRRA is not unconstitutionally vague as applied. A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning. Therefore, McJunkin could have understood that the MRRA may limit Yeager’s liability for accidents on the river.

Accordingly, the Court finds the MRRA is not [*20] void for vagueness.

b. The MRRA Does Not Violate the Constitutional Guarantee of Equal Protection

Plaintiffs also argue the MRRA violates the constitutional guarantee of equal protection in two ways. First, Plaintiffs assert the Act eliminates any theory of negligence on the part of recreational providers, essentially excusing them from the consequences of their own negligence. Second, Plaintiffs argue the MRRA arbitrarily treats certain groups of recreationalists differently. Plaintiffs assert that participants in activities covered by the MRRA are treated differently from those participating in activities covered under other activity-specific recreation statutes because the MRRA is vague, whereas the other statutes are not. Plaintiffs further assert the MRRA treats recreationists covered by the Act differently because the MRRA attempts to resurrect the “secondary” assumption of risk defense, and inserts a “primary” assumption of risk defense.

i. The MRRA Does not Eliminate All Theories of Negligence

As discussed above, although a provider is not liable for, or required to eliminate, alter, or control inherent risks under the MRRA, the provider still owes a duty of care for risks that [*21] can be prevented by the use of reasonable care. Thus, the Court finds the MRRA continues to permit negligence claims against a provider if the risk could have been prevented by the use of reasonable care. Thus, the MRRA does not violate Plaintiffs’ equal protection rights by immunizing providers from their own negligence.

ii. The MRRA Does Not Arbitrarily Treat Groups of Recreationists Differently

The MRRA is drawn broadly and defines “sport or recreational opportunity” by reference to a non-exhaustive list of 30 activities. Mont. Code. Ann. § 27-1-752(4). Some of the listed activities are also covered by their own activity-specific recreation liability statutes, such as skiing, snowmobiling and off-road vehicle use. Id.; §§ 23-2-651, et seq.; 23-2-702, et seq.; 23-2-822. Therefore, the MRRA goes on to exclude those activities from its scope. Mont. Code Ann § 27-1-754 (stating the MRRA does “not apply to duties, responsibilities, liability, or immunity related to” activities that are already subject to an activity-specific recreational statute).

Plaintiffs assert that this statutory scheme causes different groups of recreationists to be treated differently. Specifically, Plaintiffs assert the recreationists who fall under the MRRA are disadvantaged in several [*22] respects.

First, Plaintiffs argue the MRRA’s alleged vagueness only affects the subset of recreationists who participate in activities covered by the Act. Whereas, recreationists engaging in other sports, such as skiing or snowmobiling, have specific notice of their rights and the provider’s responsibilities. The Court has determined, however, that the MRRA is not unconstitutionally vague. Further, as noted above, even the activity-specific recreation statutes that specifically identify certain inherent risks do so in a non-exhaustive fashion. Thus, there is no significant difference in treatment between the recreationists who fall under the MRRA, and those who fall under other recreational statutes with respect to notice.

Next, Plaintiffs assert the MRRA departs from other recreational statutes by attempting to revive the “secondary” assumption of risk defense and by suggesting a “primary” assumption of risk defense. Historically, Montana has not used the terms “primary” and “secondary” assumption of risk. Nevertheless, legal commentators have explained [HN12] “primary” assumption of risk refers to the concept of duty, and “secondary” assumption of risk refers to contributory negligence.
[*23] See Dan B. Dobbs, et al., Dobbs’ Law of Torts § 238 (2d ed. 2018) (“[T]he term ‘primary assumption of risk’ is used to indicate the no-duty or no-breach conception and its attendant complete-bar effect; and the term ‘secondary assumption of risk’ is used to indicate the contributory negligence conception.”); 65A C.J.S. Negligence § 398 (2018) (“Primary assumption of risk limits the duty which a person owes to another. Secondary assumption of risk, on the other hand, which is a type of contributory negligence and is an affirmative defense, may be raised by the defendant after the plaintiff has met the burden of showing that the defendant breached a legal duty owed to the plaintiff.”); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, 480-81 (5th Ed. 1984) (stating “primary” assumption of risk “is really a principle of no duty,” and explaining that under the duty perspective, “the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation . . . the legal result is that the defendant is simply relieved of the duty which would otherwise exist.”).

With regard to [*24] “secondary” assumption of risk, Plaintiffs assert the MRRA, “unlike any other recreation act in Montana,” resurrects the “secondary” assumption of risk defense, without articulating any specific inherent risks the participant would be assuming. (Doc. 29 at 15.) As Yeager points out, however, the MRRA is in fact similar to the other recreation statutes in that they also provide that the participant assumes the risks inherent in the particular activity. See e.g. Mont. Code Ann. § 23-2-736(4) (“A skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing.”); § 23-2-822 (1) (“An off-highway vehicle operator shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of off-highway vehicle use. . . .”); 23-2-654(3) (“A snowmobiler shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of snowmobiling.”). Further, as discussed in regard to Plaintiff’s vagueness challenge, the MRRA does not fail to put participants on notice of the inherent [*25] risks they are assuming. As such, recreationists participating in activities that fall under the MRRA are not on significantly different legal footing than participants in other recreational activities. Finally, Plaintiffs contend the MRRA’s suggestion of a “primary” assumption of risk defense amounts to an end-run around comparative negligence. As used here, the assumption of risk terminology in the MRRA refers to a principle of no duty. In Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), the Wyoming Supreme Court found the assumption of risk language in the Wyoming Recreation Safety Act, “was intended to limit the duty to which a provider owes to a participant.” The Court explained that because primary assumption of risk was only intended to limit the provider’s duty, it did not affect the comparative negligence scheme. Id. Likewise, here, the Court finds the assumption of risk language in the MRRA affects only the provider’s duty. It does not revive contributory negligence or undermine Montana’s comparative negligence law. Moreover, as noted, the other activity-specific recreation statutes contain similar assumption of risk language. Thus, recreationists are treated the same under both the MRRA and other activity-specific recreation [*26] statutes, and there is no violation of equal protection.

c. The MRRA Does Not Unconstitutionally Interfere With the Right to Trial by Jury

Finally, Plaintiffs argue the MRRA infringes upon the province of the jury by injecting questions of ultimate fact into preliminary legal questions. As discussed above, however, whether McJunkin’s death was the result of an inherent risk of float fly fishing, and whether it could have been prevented by the use of reasonable care, are jury questions. Thus, the Court finds the MRRA does not unconstitutionally interfere with Plaintiffs’ fundamental right to trial by jury.

B. Yeager’s Motion for Summary Judgment on Plaintiffs’ Negligent Infliction of Emotional Distress Claim

Yeager contends Plaintiffs’ claim for negligent infliction of emotional distress (“NEID”) fails as a matter of law because there is insufficient evidence for a jury to find Plaintiffs suffered serious or severe emotional distress.5 The Court agrees.

5 Yeager also asserts Plaintiffs’ NIED claim fails because there is no actionable predicate act of negligence since the MRRA bars Plaintiffs’ negligence claim. As discussed, however, the Court has found there are disputed issues of material fact regarding Plaintiff’s negligence claim. Accordingly, Yeager’s argument fails in this regard.

[HN13] Under Montana law, an independent cause of action for NIED arises “under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant’s negligent act or omission.” Sacco v. High Country Ind. Press, Inc., 271 Mont. 209, 896 P.2d 411, 426 (Mont. 1995). [*27] “To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” Feller v. First Interstate Bancsystem, Inc., 2013 MT 90, 369 Mont. 444, 299 P.3d 338, 344 (Mont. 2013). The question of whether the threshold level of emotional distress can be found is for the Court to determine. Sacco, 896 P.2d at 425 (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”) (quoting Restatement (Second) of Torts, § 46, comment j at 78).

In Feller, the Montana Supreme Court considered [HN14] several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plaintiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional distress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event. Feller, 299 P.3d at 345.

Here, the Court finds [*28] Plaintiffs have not presented evidence of the type of emotional distress necessary to demonstrate serious or severe compensable emotional distress. Rhett McJunkin and Charles McJunkin, Jr. testified at deposition that they have both experienced grief, trouble sleeping and have had nightmares. Rhett McJunkin also testified he took sleep medication approximately one year after the accident, but could not recall what the medication was, who prescribed the medication, or how long own long it was taken. Rhett McJunkin also stated he has also experienced “angst” and “anxiety,” and Charles McJunkin, Jr. indicated his focus has been affected.

Nevertheless, there is no indication of any physical manifestation of grief, and neither has sought counseling, taken or increased medication to manage their emotional distress, have suffered a loss of appetite, are unable to maintain close family relationships, and neither witnessed the accident. The Court finds that consideration of the Feller factors does not lead to the conclusion that Plaintiffs’ emotional distress rises to the level where severe emotional distress may be found.

The Court certainly sympathizes with Plaintiffs’ grief for their loss [*29] of their father. Nevertheless, their testimony does not show their emotional distress was so severe that “no reasonable person could be expected to endure it.” Feller, 299 P.3d at 344.

Accordingly, Yeager’s Motion for Summary Judgment is GRANTED on Count II of the Complaint.

C. Yeager’s Motion for Summary Judgment on Plaintiffs’ Loss of Consortium Claim

Yeager argues Plaintiffs’ loss of consortium claim also fails as a matter of law because there is insufficient evidence to support the claim.6 The Court finds there are disputed issues of material fact that preclude summary judgment.

6 Yeager again asserts Plaintiffs’ loss of consortium claim fails because there is no actionable predicate act of negligence. As discussed, this argument is again rejected because there are disputed issues of material fact regarding Plaintiffs’ negligence claim.

[HN15] Montana law recognizes loss of consortium claims by an adult child of an injured parent. N. Pac. Ins. Co. v. Stucky, 2014 MT 299, 377 Mont. 25, 338 P.3d 56, 61 (Mont. 2014). In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test7 to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.” Id. at 66.

7 The Court adopted the two-part test from Keele v. St. Vincent Hosp. & Health Care Ctr., 258 Mont. 158, 852 P.2d 574 (Mont. 1993), which recognized parental loss of consortium claims by minor children. The Montana Supreme Court stated it found no reason to adopt a different standard for an adult child’s claim of loss of parental consortium. Stucky, 338 P.3d at 65. The Court specifically rejected adopting the more stringent “extraordinarily close and interdependent relationship” test from Hern v. Safeco Ins. Co. of Ill., 2005 MT 301, 329 Mont. 347, 125 P.3d 597 (Mont. 2005), which applies to loss of consortium claims brought by the parent of an adult child.

[HN16] In establishing a loss of parental consortium claim, the plaintiff [*30] may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.” Id.

Stucky involved an injury to a parent, rather than the death of a parent. Nevertheless, an adult child’s loss of a parent would readily meet the requirements established in Stucky for the maintenance of a consortium claim. The fact McJunkin died is sufficient to establish the first prong of the test, which requires serious permanent injury. Second, death is obviously an injury so “overwhelming and severe” as to destroy the parent-child relationship. Thus, the second prong of the test is clearly established.

Yeager points out that Plaintiffs are in their late 50’s/early 60’s, they lived hundreds of miles away from their father, received no financial support from him, and saw him only occasionally. Plaintiffs counter that they had [*31] a tight bond with their father, and that Charles McJunkin, Jr. talked to his father on a regular basis. This is evidence for the jury to assess. Stucky, 338 P.3d at 65.

Accordingly, the Court finds there are disputed issues of material fact that preclude summary judgment on Plaintiffs’ loss of consortium claim. Yeager’s Motion for Summary Judgment as to Count III of the Complaint is therefore, DENIED.

III. MOTION TO AMEND COMPLAINT

Plaintiffs have also filed a Motion to Amend the Complaint. (Doc. 23.) Plaintiffs seek to add a new theory of liability to the existing negligence claim. In particular, Plaintiffs seek to add the theory of strict liability based upon an abnormally dangerous activity. Yeager opposes the motion, arguing Plaintiffs were not diligent in moving to amend, and the proposed amendment is futile.

On June 1, 2017, the Court issued a Scheduling order setting the deadline to amend pleadings for July 3, 2017. (Doc. 20.) Plaintiffs filed the instant motion seeking leave to amend on November 29, 2017. (Doc. 23.)

[HN17] In situations where the deadline for amendments to pleadings has passed, a party must show good cause for not seeking leave to amend within the Court’s scheduling order. Fed.R.Civ.P. 16(b)(4) (“[a] schedule may [*32] only be modified for good cause and with the judge’s consent”); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), the Ninth Circuit explained that “[u]nlike Rule 15(a)’s liberal [HN18] amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Good cause to excuse noncompliance with the scheduling order exists if the pretrial schedule “cannot reasonably be met despite the diligence of the party seeking the extension.” Id. (quoting Fed. R. Civ. P. 16 Advisory Committee’s Notes (1983 Amendment)).

Prejudice to the opposing party may provide an additional reason to deny a motion to amend, but “the focus of the inquiry is upon the moving party’s reasons for seeking modification.” Id. at 609. “If that party was not diligent, the inquiry should end.” Id.; see also In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716, 737 (9th Cir. 2013) (upholding denial of motion to amend where “the party seeking to modify the scheduling order has been aware of the facts and theories supporting amendment since the inception of the action”).

[HN19] If good cause exists for seeking amendment after the scheduling order’s deadline, the Court then turns to Rule 15(a) to determine whether amendment should be allowed. [*33] “Although Federal Rule of Civil Procedure 15(a) provides that leave to amend ‘shall be freely given when justice so requires,’ it ‘is not to be granted automatically.'” In re Western States, 715 F.3d at 738 (quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990)). Under Rule 15(a), the Ninth Circuit directs that courts consider the following five factors to assess whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.” Id. Each of these factors is not given equal weight, however. “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

A. Lack of Diligence

As noted above, Plaintiffs seek to amend the Complaint to include an additional theory of strict liability. The Court finds that Plaintiffs did not act diligently in seeking to amend the Complaint. The motion to amend was filed nearly five months after the Court’s deadline to amend pleadings. Plaintiffs’ explanation for the delay is that the additional theory of liability is premised upon Yeager’s expert report, which they did not receive until November 13, 2017.

The Court finds, however, that Plaintiffs were aware of the facts and theories supporting the amendment long prior to receipt of [*34] Yeager’s expert report. The expert report did not provide any new facts, but rather offered opinion evidence that fly fishing from a raft is inherently dangerous, and that the danger cannot be eliminated by reasonable precautions. But Plaintiffs have been aware that Yeager intended to raise an inherent risk defense since Yeager filed his answer on March 6, 2017, and raised the MRRA as an affirmative defense. (Doc. 4 at 7.) Yeager also filed a Preliminary Pretrial Statement approximately six months before the expert report was produced that put Plaintiffs on further notice of this theory of defense. (See Doc. 18 at 6) (stating that “[f]alling out of a raft on a river is a danger that cannot be prevented by the use of reasonable care.”) Therefore, Plaintiffs’ argument that they did not possess information supporting the abnormally dangerous activity theory of liability until after they received the expert report is not persuasive. See Bonin, 59 F.3d at 845 (holding a motion to amend may be denied “where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally”).

B. Futility of Amendment

Even if the Court found “good cause,” under [*35] Rule 16, application of the Rule 15 factors dictate denial of the motion to amend. Although there is no indication Plaintiffs are acting in bad faith, or that amendment would unduly prejudice Yeager, the Court has found undue delay. Moreover, the Court finds the amendment would be futile.

In seeking to impose strict liability, Plaintiffs conflate the concept of inherent risk with an abnormally dangerous activity. The activity at issue here — fly fishing from a raft — is not the kind of activity that has been recognized as abnormally dangerous. [HN20] Simply because an activity has inherent risks, does not mean the activity is abnormally dangerous for purposes of strict liability. A comparison of activities that are considered abnormally dangerous illustrates the point. See e.g. Beckman v. Butte-Silver Bow Cty., 2000 MT 112, 299 Mont. 389, 1 P.3d 348 (Mont. 2000) (trenching); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338 Mont. 259, 165 P.3d 1079 (Mont. 2007) (operating a gas refinery near residences and a school); Ulmen v. Schwieger, 92 Mont. 331, 12 P.2d 856 (Mont. 1932) (highway construction); and Stepanek v. Kober Const., 191 Mont. 430, 625 P.2d 51 (Mont. 1981) (construction scaffolding). The Court does not find the characteristics and risks of fly fishing equate in any meaningful way with these types of activities.8

8 Likewise, the Restatement (Second) of Torts § 519, which has been adopted by the Montana Supreme Court, identifies the following as abnormally dangerous activities: “Water collected in quantity in unsuitable or dangerous place,” “Explosives in quantity in a dangerous place,” “Inflammable liquids in quantity in the midst of a city,” “Blasting, in the midst of a city,” “Pile driving, with abnormal risk to surroundings,” “Release into air of poisonous gas or dust,” “Drilling oil wells or operating refineries in thickly settled communities,” and “production of atomic energy.” Again, these activities are of a wholly different nature than float fly fishing.

“Whether an activity is abnormally dangerous is a question of law.” Chambers v. City of Helena, 2002 MT 142, 310 Mont. 241, 49 P.3d 587, 591 (Mont. 2002), overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134 (Mont. 2007). No court has held float fly fishing is an abnormally dangerous activity, and [*36] this Court declines Plaintiffs’ invitation to be the first to do so.

In addition, the Court has determined the MRRA is constitutional and applies to Plaintiff’s negligence claim. The MRRA limits a recreational provider’s liability. Mont. Code Ann. § 27-1-752(3); 27-1-753. The Montana Legislature enacted the MRRA to protect recreational providers from liability for injuries that are caused by the very characteristics of a particular activity that make it attractive to participants. 2009 Mt. Laws Ch. 331 (H.B. 150), preamble. The Legislature specifically intended to limit providers’ liability and to discourage claims based on damages that result from inherent risks in a sport or activity. Id. The Legislature enacted the MRRA to further the State’s interest in maintaining the economic viability of Montana’s sports and recreational industries. Id.

Imposing strict liability would eviscerate the purpose of the MRRA. Instead of limiting recreational provider’s liability for inherent risks, it would render them strictly liable for those risks. See Christian v. Atl. Richfield Co., 2015 MT 255, 380 Mont. 495, 358 P.3d 131, 150 (Mont. 2015) (“A claim based upon strict liability for the conduct of an abnormally dangerous activity . . . means that the defendant is liable for harm resulting from the activity, even [*37] if the defendant acted with reasonable care.”). In short, it would accomplish the exact opposite of what the MRRA was intended to do.

Therefore, because Plaintiffs have not shown good cause for their delay in seeking amendment, and because the amendment would be futile, Plaintiffs’ Motion to Amend the Complaint is DENIED.

IV. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows: (1) Plaintiffs’ Motion to Amend (Doc. 23) is DENIED;

(2) Plaintiffs’ Motion for Partial Summary Judgment (Doc. 28) is DENIED; and

(3) Defendant’s Motion for Summary Judgment (Doc. 31) is GRANTED in part and DENIED in part.

IT IS ORDERED.

DATED this 28th day of September, 2018.

/s/ Timothy J. Cavan

TIMOTHY J. CAVAN

United States Magistrate Judge


Question answered in California, what happens if an injured skier is injured again while be tobogganed down the ski slope?

If you assume the risk of skiing in California, you also assume the risk of being injured being tobogganed down the hill by a ski patroller.

Martine v. Heavenly Valley, 2018 Cal. App. Unpub. LEXIS 6043

State: California, Court of Appeal of California, Third Appellate District

Plaintiff: Teresa Martine

Defendant: Heavenly Valley Limited Partnership

Plaintiff Claims: ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree, A ski patroller operating a sled is a common courier

Defendant Defenses: Assumption of the Risk

Holding: For the defendant

Year: 2018

Summary

This is a first of its kind case that I have found alleging negligence against the ski area for an injury received while being transported down a ski run in a toboggan by a ski patroller.

The case also looked at whether a ski area operating a ski patrol using toboggans was a common carrier, owing “passengers” the highest degree of care.

Neither argument by the plaintiff won because she assumed the risks of skiing and after claiming an injury, the risk of being transported down the mountain by the ski patroller in a toboggan.

Facts

As the plaintiff was waiting for a ski patroller to come assist a friend she was skiing with she felt her knee slip. She then requested a toboggan ride down the mountain from the ski patrol.

While descending the mountain, the patroller claims he was hit by a snowboarder and knocked down causing the toboggan to crash. The plaintiff alleged the ski patroller was skiing too fast and lost control sending the toboggan tumbling down the mountain injuring her.

“Heavenly contends that while [Horn] was skiing down the groomed and limited pitch terrain on Lower Mombo, three snowboarders emerged from the trees, off-piste to his right. [Fn. omitted.] While the snowboarders turned to their right, Heavenly claims the last snowboarder clipped [Horn’s] right ski, causing him to fall. Based upon [Horn’s] view, as the snowboarders turned right, they did so on their toe side edge, which put their backs to him. [Horn] tried to avoid a collision with the last snowboarder, but he was unsuccessful, and when he fell the toboggan rolled over. Heavenly alleges that the rollover caused some of plaintiff’s equipment in the toboggin to hit her head.

“Plaintiff, however, contends there was no contact with any of the snowboarders, who she claims were downhill of [Horn]. Instead, plaintiff argues [Horn] lost control of the sled, and he was going too fast and fell. Plaintiff further asserts that [Horn’s] reports indicate the incident did not involve any collision, and the toboggan tumbled instead of simply rolling over. Plaintiff also contends her initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

The plaintiff filed suit, one year 11 months after her injury, claiming a simple negligence claim. The ski area answered and pled numerous affirmative defenses, including the defense of assumption of the risk.

An affirmative defense is one that must be plead by the defendant, or it is lost. Affirmative defenses are listed by the courts, and their requirements are specific and known so that the parties understand exactly what is meant by the defense.

The ski area eventually filed a motion for summary judgment based on the affirmative defense of assumption of the risk. The trial court agreed and granted the defendants motion. The plaintiff appealed, and this decision is the California Court of Appeals upholding the trial court’s decision.

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

The analysis started with a review of the findings of the trial court.

The trial court found, in part, that Martine voluntarily engaged in the activity of skiing and injured her knee while doing so. The court further found that Martine voluntarily summoned the ski patrol for help and voluntarily accepted the ski patrol’s aid knowing that she and Horn risked interference from, or collisions with, other skiers or snowboarders as they descended the mountain.

The court then looked at how primary of assumption of the risk as defined under California law would apply to this case.

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.”

If the injured party voluntarily agrees to participate, in the sport of skiing or in being transported down the mountain by the ski patrol, the plaintiff assumed the risk of her injuries.

You volunteer to ski; you volunteer to get in the toboggan and you volunteer to be skied down the hill by the patroller. You, therefore, cannot sue because of the primary assumption of the risk doctrine. You knowingly assumed the risk leading to your injuries.

The plaintiff argued on appeal that a ski patroller running a toboggan is a common carrier. A common carrier is generally known as a business that transport people for a fee. Trains, subways, and airlines are examples of common carriers. A common carrier owes the highest degree of care to those who the common carrier is transporting.

Specifically, a common carrier must “do all that human care, vigilance, and foresight reasonably can do under the circumstances” to avoid injuring those that it carries.

California defines common carries by statute, Civil Code section 2168, which defines common carrier as “[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages is a common carrier of whatever he thus offers to carry.”

In California and Colorado, a ski area is a common carrier when someone is riding the ski lift. They are transporting people for hire and in the business of doing so to anyone who buys a ticket.

There is a three-part test to determine whether someone transporting someone for hire is a common carrier.

In deciding whether Heavenly is a common carrier, a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services.

The court did not have to determine if Heavenly was a common carrier because the plaintiff put forth no facts, no evidence that the ski area and a ski patroller with a toboggan were a common carrier. With no evidence, the plaintiff cannot make an argument supporting her claims, and the court could not make a ruling.

The court, however, still overruled the argument stating:

Further, descent from a mountain via rescue sled operated by ski patrol is distinguishable from the ski lifts discussed in Squaw Valley because unlike the lifts that indiscriminately “carry skiers at a fixed rate from the bottom to the top” of the mountain, rescue patrollers, at a patroller’s discretionary election, transport injured skiers without any apparent compensation to the bottom of the mountain.

The California Appellate Court upheld the dismissal of the plaintiff’s complaint.

So Now What?

You always have the option, unless you are unconscious, to refuse the toboggan ride down the mountain and get down on your own. In this case, it almost sounds like the plaintiff still could have skied down but did not.

It does not matter though because once you assume the risk of skiing you assume all the risks associated with the activity, including the risks of additional injury while being rescued.

What do you think? Leave a comment.

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Martine v. Heavenly Valley, 2018 Cal. App. Unpub. LEXIS 6043

Martine v. Heavenly Valley

Court of Appeal of California, Third Appellate District

September 4, 2018, Opinion Filed

C076998

2018 Cal. App. Unpub. LEXIS 6043 *

TERESA MARTINE, Plaintiff and Appellant, v. HEAVENLY VALLEY LIMITED PARTNERSHIP, Defendant and Respondent.

Opinion

 [*1]  Plaintiff Teresa Martine (Martine) hurt her knee while skiing at Heavenly Valley Ski Resort and was being helped down the mountain by a ski patrolman when the rescue sled in which she was riding went out of control and hit a tree. Martine sued resort owner Heavenly Valley Limited Partnership (Heavenly) for negligence and for damages arising from her injuries.

Heavenly moved for summary judgment arguing that there was no evidence that its employee, a ski patrolman named Gustav Horn (Horn) had been negligent in taking Martine down the mountain thus causing the sled to hit the tree and that, in any event, Martine‘s action is barred by the doctrine of primary assumption of risk.

The trial court granted Heavenly’s motion and entered judgment accordingly. Martine appeals.

As we understand her arguments on appeal, Martine asserts: (1) there is evidence on the motion to support Martine‘s claim that the ski patroller Horn was negligent; (2) her action is not barred by the doctrine of primary assumption of risk; (3) the trial court erred in not allowing her to amend her complaint to allege negligence and damages arising from a second injury she incurred the same day while being taken off the [*2]  mountain; and (4) the trial court erred in not granting her motion for a new trial.

We affirm the judgment.

The Proceedings

On March 2, 2011, Martine filed a Judicial Council of California form complaint alleging general negligence against Heavenly for injuries she suffered on March 23, 2009. Specifically, Martine alleged: “Heavenly is liable for the negligent transportation of an injured party. Ms. Martine injured her knee while skiing and called for ski patrol to transport her to the bottom of the mountain. She was loaded into a sled by ski patrol, who may have loaded her improperly. During her transport to the bottom of the mountain, ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree. As a result of the accident, Ms. Martine suffered injuries to her head and leg.”

Heavenly answered the complaint, asserting various affirmative defenses, including that Martine had assumed the risk for all injuries sustained and that her injuries “resulted from inherent risks of the activity in which [Martine] engaged and as to which [Heavenly] owed no duty.”

On November 21, 2012, Heavenly brought its motion for summary judgment (Motion) [*3]  arguing alternatively that Martine‘s complaint (1) was barred by the doctrine of primary assumption of risk, or (2) there was no evidence that Heavenly breached a duty of care and/or caused Martine‘s injuries.


Martine opposed the Motion, arguing: (1) the doctrine of primary assumption of risk “does not apply to the transportation of injured skiers by the ski resort’s ski patroller” and (2) the doctrine of primary assumption of risk “does not apply to the transportation of injured skiers by the ski resort’s ski patroller engaged in a common carrier activity charged with the duty of utmost care.” As to her common carrier contention, Martine also argued that the doctrine of res ipsa loquitur applied, which would show negligence on the part of Heavenly’s employee.

The trial court granted the motion for summary judgment and entered judgment for Heavenly ruling that Martine‘s action was barred by the doctrine of primary assumption of risk and that Heavenly was not acting in the capacity of a common carrier at the time of the accident.

Martine thereafter moved for a new trial arguing, in part, that there was newly discovered evidence. The trial court denied the motion.

The Facts

In its order [*4]  granting summary judgment, the trial court set forth the following disputed and undisputed facts relevant to the motion. Neither party has challenged the trial court’s statement of facts and, having reviewed the record on our own, we will adopt it as the statement of facts relevant to the motion for summary judgment.

“On March 23, 2009, plaintiff was skiing down Powder Bowl at Heavenly Mountain Resort. While skiing with friends, one of plaintiff’s companions came out of her skis, and plaintiff called for the assistance of ski patrol. Plaintiff claims that while standing on the hill her kneecap ‘moved out and back in.’

“Volunteer ski patroller Gustav ‘Gus’ Horn was dispatched to the scene of plaintiff’ s call for assistance. [Horn had] been a ski patroller, both paid and as a volunteer, for the [prior] twenty-eight years. He [had] been at Heavenly for ten years, and he [had] patrolled there over 100 days. [Horn was] a certified professional ski patroller and examiner in first aid, toboggan handling, and skiing, and [was] recertified every two years. [Horn was] trained in all aspects of patrolling, including patient care, toboggan transport, and first aid, and [was] tested on these skills [*5]  each year by Heavenly. He receive[d] annual and ongoing on-hill training in all aspects of ski patrol including, but not limited to, toboggan training, toboggan training on steep slopes, first aid, and other areas.

“When [Horn] arrived at the scene, he conducted an assessment of plaintiff’s reported injuries and called for a toboggan to be transported to him. When the toboggan arrived, [Horn] unpacked it and stabilized it. He applied a quick splint to plaintiff’s left leg in accordance with his training and knowledge, [which included] immobilizing the area above and below the injury site, plaintiff’s knee. [Horn] had plaintiff lay down in the toboggan inside a blanket roll. After plaintiff was in the toboggan, [Horn] placed a plastic cover or tarp over her, he placed her equipment on her non-injury side (her right side), and strapped her in using the straps provided on the toboggan.

“Heavenly contends that while [Horn] was skiing down the groomed and limited pitch terrain on Lower Mombo, three snowboarders emerged from the trees, off-piste to his right. [Fn. omitted.] While the snowboarders turned to their right, Heavenly claims the last snowboarder clipped [Horn’s] right ski, causing [*6]  him to fall. Based upon [Horn’s] view, as the snowboarders turned right, they did so on their toe side edge, which put their backs to him. [Horn] tried to avoid a collision with the last snowboarder, but he was unsuccessful, and when he fell the toboggan rolled over. Heavenly alleges that the rollover caused some of plaintiff’s equipment in the toboggin to hit her head.

“Plaintiff, however, contends there was no contact with any of the snowboarders, who she claims were downhill of [Horn]. Instead, plaintiff argues [Horn] lost control of the sled, and he was going too fast and fell. Plaintiff further asserts that [Horn’s] reports indicate the incident did not involve any collision, and the toboggan tumbled instead of simply rolling over. Plaintiff also contends her initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

Heavenly asserts “[t]he rollover caused some of [Martine‘s] equipment in the toboggan to hit her head” while Martine contends her “initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

Discussion

I

Scope of Review

As the California Supreme Court explained in Aguilar v. Atlantic Ridgefield Co. (2001) 25 Cal.4th 826 (Aguilar), “Under summary judgment law, [*7]  any party to an action, whether plaintiff or defendant, ‘may move’ the court ‘for summary judgment’ in his favor on a cause of action (i.e., claim) or defense (Code Civ. Proc., § 437c, subd. (a)) . . . . The court must ‘grant[]’ the ‘motion’ ‘if all the papers submitted show’ that ‘there is no triable issue as to any material fact’ (id., § 437c, subd. (c))–that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations]–and that the ‘moving party is entitled to a judgment as a matter of law’ (Code Civ. Proc., § 437c, subd. (c)). The moving party must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Id., § 437c, subd. (b).) Likewise, any adverse party may oppose the motion, and, ‘where appropriate,’ must present evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Ibid.) An adverse party who chooses to oppose the motion must be allowed a reasonable opportunity to do so. (Id., § 437c, subd. (h).)” (Aguilar, at p. 843.)

“In ruling on the motion, the court must ‘consider all of the evidence’ [*8]  and ‘all’ of the ‘inferences’ reasonably drawn therefrom (id., § 437c, subd. (c)), and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Aguilar, 25 Cal.4th at p. 843.) “[I]f the court concludes that the plaintiff’s evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the defendant[‘s] motion.” (Aguilar, 25 Cal.4th at p. 856.)

” ‘The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.’ (Andalon v. Superior Court, [(1984) 162 Cal.App.3d 600, 604-605].) ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.’ [Citations.] The complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action. [Citation.]” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)

“A defendant . . . has met his . . . burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, [*9]  or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code of Civ. Proc., § 437c, subd. (p)(2).)

We review the record and the determination of the trial court de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003; see also, Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

A motion for a new trial may be sought following an order on summary judgment, and the decision thereon is generally reviewed for an abuse of discretion. (Aguilar, 25 Cal.4th at pp. 858-859.)

II

The Pleadings

Given the law set forth above and to give structure to our opinion, we should first turn to the pleadings in this matter.

As we related earlier, Martine brought a complaint alleging against Heavenly a single cause of action for negligence in that she “injured her knee while skiing and called for ski patrol to transport her to the bottom of the mountain. She was loaded into a sled [*10]  by ski patrol, who may have loaded her improperly. During her transport to the bottom of the mountain, ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree.”

As is apparent, Martine‘s sole cause of action sounds in negligence relying essentially on an allegation that Horn negligently failed to maintain control of the emergency sled in which she was riding, leading to her injuries. At its essence, Heavenly challenges the allegation of negligence arguing that there is no evidence of negligence on Horn’s part and, even if he was simply negligent, that negligence is legally offset by the doctrine of primary assumption of risk. Martine‘s single pleading “delimits” the issues on the motion for summary judgment.

We recognize that Martine also contends that her pleading should be read broadly enough to encompass a claimed injury arising from being dropped when later being loaded on the ski tram. We reject that contention, post, as did the trial court.

Finally, we find that we need not address Martine‘s claim that she presented sufficient evidence on the motion to require a trial as to Heavenly’s negligence in causing her injuries [*11]  (or that Heavenly did not present enough evidence to find there was no triable issue of material fact on the question of negligence) because in this matter we find a defense based on the doctrine of the primary assumption of the risk dispositive.

III

Primary Assumption of the Risk

The trial court found, in part, that Martine voluntarily engaged in the activity of skiing and injured her knee while doing so. The court further found that Martine voluntarily summoned the ski patrol for help and voluntarily accepted the ski patrol’s aid knowing that she and Horn risked interference from, or collisions with, other skiers or snowboarders as they descended the mountain.

As explained in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight):

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ. Code, § 1714.) Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. [Citations.] In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of [*12]  harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. (See generally Annot. (1987) 55 A.L.R.4th 632.) In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Knight, supra, 3 Cal.4th at p. 315.)

Determining “the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” (Knight, supra, 3 Cal.4th at p. 313.)

A.
Martine‘s Injury was Due to a Risk Inherent in the Sport of Skiing

“The risks inherent in snow skiing have been well catalogued and recognized by the courts” including “injuries from variations in terrain, surface or subsurface snow or ice conditions, moguls, bare spots, rocks, trees, and other forms of natural growth or debris” and “collisions with other skiers, ski lift towers, and other properly marked or plainly visible objects and equipment.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1202, italics added.)


Martine argues that she and Horn were not participating in the active sport [*13]  of skiing at the time of the accident. This argument is unpersuasive.

Martine was skiing on a ski run when she apparently hurt her knee and sought and secured assistance from the ski patrol. The possibility that Martine might injure herself while skiing and need assistance descending the mountain is one of the foreseeable risks of the sport of skiing. That one might be injured during that descent on a rescue toboggan are risks inherent in the sport of skiing.

Putting aside Martine‘s unsupported speculation as to the cause of the accident, the facts adequately supported by the evidence on the motion are that the person assisting Martine down the mountain fell after an encounter with snowboarders who emerged from the woods. Falling during skiing is a risk inherent to the sport. (Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 214 [“Falling and thereby being injured or even killed are inherent dangers of skiing”].) And as noted earlier, collisions or near-collisions with other skiers or snowboarders on the mountain are also inherent in the sport of skiing whether one is skiing or being taken off the mountain after being injured while skiing.

We conclude the trial court properly determined that Martine‘s claim for negligence is barred by [*14]  the doctrine of primary assumption of risk.

B. The Common Carrier Issue


Martine also argues primary assumption of the risk does not apply because, in carrying out her rescue from the mountain, the ski patrol was acting as a common carrier.

Whether the ski patroller rescuing Martine is a common carrier within the meaning of Civil Code section 2168 is a matter of law where the facts are undisputed. (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1506 (Squaw Valley) [ski resort operating chairlift is common carrier].) The common carrier determination is significant because if it applies, it would impose a duty of the utmost standard of care. (See Squaw Valley, at pp. 1506-1507.) Specifically, a common carrier must “do all that human care, vigilance, and foresight reasonably can do under the circumstances” (id. at p. 1507) to avoid injuring those that it carries.

Initially, we note that Martine‘s complaint is devoid of any allegations that Heavenly’s ski patroller was acting as a common carrier at the time of her injury, nor does Martine‘s complaint contain facts sufficient to establish the applicability of the common carrier doctrine. Thus, it is unclear whether Martine may use the doctrine’s application to avoid summary judgment on her general negligence claim because Heavenly [*15]  was not required to refute liability on theoretical issues not raised in the complaint. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 793 [“the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint“], italics in original; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [a party seeking to expand issues presented by the complaint must do so by amending the complaint, not by way of opposition papers alone].)

In any event, as recognized in Squaw Valley, Civil Code section 2168 provides the definition of common carrier applicable to tort actions and states “[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages is a common carrier of whatever he thus offers to carry.” (Squaw Valley, supra, 2 Cal.App.4th at p. 1507.)

In deciding whether Heavenly is a common carrier, a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services. (Judicial Council of California Civil Jury Instruction 901; Gradus v. Hanson Aviation (1984) 158 Cal.App.3d 1038, 1048 [applying these factors].)

Here, Martine put forth no facts that Heavenly (1) maintained a business for transporting injured patrons to the bottom of the mountain, [*16]  (2) advertised such service, or (3) charged for that service. Nor did Martine state separate facts alleging that Heavenly offered descent from the mountain to the public generally. Accordingly, Martine‘s common carrier argument necessarily fails. (See Blackman v. Burrows (1987) 193 Cal.App.3d 889, 894-895 [refusing to consider factual contentions contained within the memorandum in opposition, but not set forth in a separate statement of facts].) Further, descent from a mountain via rescue sled operated by ski patrol is distinguishable from the ski lifts discussed in Squaw Valley because unlike the lifts that indiscriminately “carry skiers at a fixed rate from the bottom to the top” of the mountain, rescue patrollers, at a patroller’s discretionary election, transport injured skiers without any apparent compensation to the bottom of the mountain. (Compare Squaw Valley, supra, 2 Cal.App.4th at p. 1508.)

At oral argument, Martine relied upon Regents of the University of California v. Superior Court (2018) 4 Cal.5th 607 (Regents) to argue Heavenly was liable because either it acted as a common carrier by providing the ski patrol service or it had a special relationship with Martine like a common carrier has with its passengers. Regents does not support either argument. First, the case does not concern a common carrier’s duty; rather, it decided [*17]  whether a university has a special relationship with its students requiring it to protect them from foreseeable violence. (Id. at p. 620.) Nothing in the case suggests a ski resort becomes a common carrier by providing ski patrol to remove injured skiers from the mountain.

Second, Regents cannot be read to create a special relationship imposing an affirmative duty to warn and protect others of inherent dangers where the plaintiff assumes a risk of injury by intentionally engaging in dangerous activity. By assuming the risk, the plaintiff negates the defendant’s duty of care as well as any affirmative duty to protect. “By an express assumption of risk, the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant’s duty of care, and acknowledging the possibility of negligent wrongdoing.” (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7.) It is no surprise that Regents did not discuss assumption of the risk, as attending a university, unlike skiing, is not an inherently dangerous activity. Regents is irrelevant to this case.


Martine relied on another case at oral argument, Hass v. RhodyCo Productions (Aug. 13, 2018, A142418) __ Cal.App.5th __ [2018 WL 3830002], that also does not aid her. There, [*18]  the court of appeal ruled the primary assumption of the risk doctrine did not bar the plaintiffs’ claim for gross negligence arising from a foot race operator’s alleged breach of its duty to minimize the race’s extrinsic risks without altering the race’s nature. (Id. at p. 14.) The case does not apply here, as Martine did not contend in opposing the summary judgment motion that Heavenly was grossly negligent.

Because we have found the trial court properly granted summary judgment of Martine‘s claims through application of the doctrine of assumption of risk, we need not address Martine‘s argument that the trial court erred in excluding evidence intended to show that Martine‘s rescuer’s conduct was merely negligent under either principles of ordinary negligence or application of the law of common carriers.

IV

The Scope and Amendment of Martine‘s Complaint

Martine argues the trial court erred in not allowing her to amend her complaint to allege negligence and damages arising from a second injury she incurred the same day while being taken off the mountain. Again, we are unpersuaded.

In an attempt to circumvent the application of the doctrine of primary assumption of risk, Martine argues that her complaint [*19]  should have been liberally construed to include a second injury occurring while waiting for the tram, offering as a rationale for that argument that her complaint invoked “all head trauma damages” sustained on the day of the accident.

We note first that Martine never filed a motion to amend her complaint nor did she offer a proposed amended pleading.

The allegations of the complaint as set forth, supra, clearly concern only the accident on the ski run wherein it is alleged that her rescuer negligently lost control of the rescue sled thus injuring Martine when she hit a tree. There is no allegation that she sustained additional injuries when she was later dropped when being loaded on the tram. We reject, as did the trial court, her late-to-dinner effort to significantly expand her factual allegations beyond the complaint she filed, which expansion necessarily would import new legal theories and new defenses into the lawsuit she chose to file.

V

The New Trial Motion

Martine argues the trial court erred in denying her new trial motion. Because the decision of the trial court is presumptively correct, Martine has the burden of overcoming that presumption by affirmatively demonstrating trial court [*20]  error. (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 683 [ruling on new trial motion is presumptively correct unless error established gives rise to a presumption of prejudice].)

This includes the duty to separately identify under appropriate headings each assertion of trial court error. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Contrary to this duty, Martine placed argument concerning her motion for a new trial under the heading “Heavenly Has the Substantive Burden on Appeal to Establish that it is Entitled to Summary Judgment.”

Whether the trial court erred in granting the motion for summary judgment is a separate question from whether it also erred in denying the new trial motion. (Code of Civ. Proc., §§ 437c, 657.) Thus, Martine‘s headings and poor organization undermine this court’s review and cause us to question whether Martine is entitled to review of these assertions at all. (See Phillips v. Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1077 [challenge to authenticity not subsumed in heading concerning relevancy and prejudice].)

Putting this issue aside, Martine‘s arguments for a new trial may be divided into two categories: (1) those waived because they were not raised in the trial court and (2) those forfeited because Martine has failed to provide cogent facts and legal analysis demonstrating trial court error.

” ‘Appellate courts are loath to reverse [*21]  a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. . . .’ [Citations.]” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [appellant’s failure to raise specific challenges in trial court resulted in their forfeiture on appeal].) Therefore, we will not consider Martine‘s claims concerning irregularities in the proceedings and/or surprise which ordinary prudence would not guard against because Martine‘s motion in the trial court did not argue these issues.

Further, “[i]t is the responsibility of the appellant, here [Martine], to support claims of error with meaningful argument and citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) In addition, citing cases without any discussion of their application to the present case results in forfeiture. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482-483.) We are not required to examine undeveloped claims or to supply arguments for the litigants. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546 [it is not [*22]  the court’s function to serve as the appellant’s backup counsel].)” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)

Martine‘s remaining new trial arguments concerning the discovery of new evidence, the sufficiency of the evidence, the trial court’s decision being against the law, and that there was an error in law are forfeited for failure to supply cogent and supported argument with citations to the record affirmatively demonstrating error.

Disposition

The judgment is affirmed. Heavenly is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)


HULL , J.

We concur:

BLEASE , Acting P. J.

ROBIE , J.

 


Plaintiff cannot assume a risk which is not inherent in the activity or which he does not know.

The decision lacks any real information on how a carabiner detached from a harness on a mobile climbing wall. However, the decision makes the correct determination on whether the plaintiff assumed the risk under New York law.

Stillman v Mobile Mountain, Inc., 2018 N.Y. App. Div. LEXIS 4124; 2018 NY Slip Op 04149

State: New York, Supreme Court of New York, Appellate Division, Fourth Department

Plaintiff: Jacob Stillman

Defendant: Mobile Mountain, Inc.

Plaintiff Claims: negligence

Defendant Defenses: Assumption of the Risk and lack of constructive notice of an alleged defect

Holding: for the Plaintiff

Year: 2018

Summary

This case looks at assumption of risk as a defense, when the risk assumed is not “visible” or known to the injured plaintiff. The plaintiff fell from a mobile climbing wall when the carabiner used in the belay detached. The defense of assumption of risk failed because the risk was concealed or unreasonably enhanced according to the court.

Facts

The defendant set up its mobile climbing wall at the Eden Corn Festival. While climbing the carabiner detached from the harness and the plaintiff fell 18′ to the ground.

The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.

The defendant filed a motion to dismiss based on assumption of the risk and the defendant did not have any notice that the “defective” part of the wall was defective. What part of the wall that was defined as defective was never identified. The trial court denied the defendants motion and the defendant appealed.

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

Assumption of the risk in New York is a defense in athletic or recreational activities. If you engage in the activity, you assume the risks that are inherent in the activity.

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”

However, a plaintiff cannot assume risks that the plaintiff does not know about, that are concealed, or are created due to the reckless or intentional conduct of the defendant.

However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced”

However, the analysis the court used to deny the plaintiff’s motion was the defendant failed to prove that falling from a climbing wall was an inherent risk of climbing.

Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof

It seems to be confusing to say the risk of falling off a wall, suspended in the air is not obvious. However, this is a New York decision, which are always brief. Therefore, the statement of the court encompasses the real risk, that the carabiner or part of the system would fail allowing the plaintiff to fall.

More importantly, the plaintiff could not assume the risk of the carabiner failing because it is not an inherent risk of the sport and because there is no way the plaintiff could have known, seen, or discovered the risk.

So Now What?

The decision lacks more information than it provides. How did the carabiner become detached? Carabiners do not fail and there is nothing indicating the carabiner did fail. Consequently, either the carabiner was never attached properly or the plaintiff opened the carabiner.

The decision does follow other decisions like this in all other states. How it is explained is just a little confusing.

What do you think? Leave a comment.

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