Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.
Posted: June 11, 2018 Filed under: Assumption of the Risk, Indoor Recreation Center, Ohio, Release (pre-injury contract not to sue) | Tags: Assumption of risk, claims of negligence, Commercial Recreation Center, fact remains, Flips, foam, Foam Pit, genuine, genuine issue, Gymnastics, Indemnity, inducement, Inherent Risks, initial burden, Issue of Material Fact, liability claim, loss of consortium, matter of law, moving party, nonmoving party, pit, proprietor', Punitive damages, Reckless, recklessness, recreational activities, releasee, repose, Ski Flips, Sports, Summary judgment, waiver form, Wanton, willful Leave a commentMotions by the defendant eliminated a lot of the claims of the plaintiff; however, the reckless claims are always a pain used to negotiate a settlement. If the judge bought the idea, maybe the plaintiff can get the jury to buy the idea.
Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186
State: Ohio, Court of Common Pleas, Summit County, Civil Division
Plaintiff: Michael A. Cantu, et al,
Defendant: Flytz Gymnastics, Inc., et al,
Plaintiff Claims: Negligence, willful, wanton and reckless action and Product Liability
Defendant Defenses: Release, Assumption of the Risk and the Statute of Repose
Holding: For the Defendant and the Plaintiff
Year: 2016
Summary
Recreation activities have moved indoors for more than 75 years. Now, all sorts of outdoor recreation activities have moved indoors and created additional activities and variations of those activities.
This decision concerns injuries received when the plaintiff jumped into a foam pit. The plaintiff and friends were there to practice skiing jumps. When the plaintiff landed he became a quadriplegic and sued for negligence, gross negligence and product liability claims.
Facts
The plaintiff and his friends decided to go to the defendant’s facility to practice skiing flips. The facility had a foam pit where the participants could land. While using a springboard to go over a vault the plaintiff landed head first in the pit sustaining a spinal cord injury rendering him a quadriplegic.
The plaintiff was a minor and had been driven to the facility by his mother. Both, he and his mother signed the release to participate in the activity. His mother claimed the form was long, and she did not read it. (The release was one page.)
Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long,….
The plaintiff and his parents admitted they had signed releases before, knew that the activities were risky and had participated in other risky activities and had been injured doing so.
The defendants filed a motion for summary judgment, and this is the decision of the court.
Analysis: making sense of the law based on these facts.
Ohio allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue and Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998).
The release in question described the risks of the activity and included the risks that resulted in the plaintiff suffered, “including permanent disability, paralysis and death, which may be caused.”
A release is a contract and under Ohio law to be valid a contract must be “clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware.” The court found this release met those requirements.
The plaintiffs argued the they were fraudulently induced to sign the release. A release signed by fraudulent inducement is voidable upon proof of the fraud. However, that fraud must be than saying you were misled if a reading of the contract would have shown that was not the case.
A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.”
The court found there was no fraud because the release itself was clear and there was no evidence from the plaintiff of any act or action that was fraudulent by the defendants.
The court granted the defendant’s motion for summary judgment to the negligence claims of the plaintiff.
The court also would have granted summary judgment to the defendants because the plaintiff assumed the risk of his injuries.
The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.”. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.”
The defense is not affected on whether or not the participant was able to appreciate the inherent dangers in the activity.
To defeat a primary assumption of risk defense the plaintiff must be able to prove the defendant’s conduct was reckless or intentional, and it does not matter if it is adults or minors organized or unorganized, supervised or unsupervised.
The plaintiff could not prove the actions of the defendant were reckless or intentional.
Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.
However, this part of the decision treads a narrow classification of the facts because the court found the plaintiff had pled enough facts for the reckless or intentional conduct claims to survive. The plaintiff pleaded and argued facts along with his expert witness “Defendant level of supervision and safety procedures, and whether, Defendant’s actions or inactions rose to the level of recklessness.”
The plaintiff’s expert argued the defendant failed to:
…ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution.
The final claim was a product liability claim arguing the foam pit was defective. The defendant argued the statute of repose applied.
The statute of repose is a statute that says if a claim against a product has not occurred in the first ten years after its creation, then no claims can be made after that period of time.
…no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another product.
The foam pit had been constructed in 2000, and the plaintiff’s injury occurred in 2011. Consequently, the ten-year statute of repose had run preventing the plaintiff’s product liability claim.
The court granted the defendant’s motion for summary judgment for all claims of the plaintiff except for the claim of recklessness, which could lead to punitive damages.
So Now What?
Foam pits, trampolines, and free fall towers join climbing walls indoors as types of activities or training for outdoor recreation activities are popping up everywhere. What used to be confined to Olympic training venues can now be accessed on the corner with a credit card.
We are going to see more of these types of actions. Like any recreational activity, they advertise, make promises, and are still in a growing mode both in the number of locations and the learning process in how their liability will evolve.
What do you think? Leave a comment.
 James H. “Jim” Moss, JD |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk
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Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186
Posted: June 10, 2018 Filed under: Assumption of the Risk, Indoor Recreation Center, Legal Case, Ohio, Release (pre-injury contract not to sue) | Tags: Assumption of risk, claims of negligence, fact remains, foam, Foam Pit, genuine, genuine issue, Gymnastics, Indemnity, inducement, Inherent Risks, initial burden, Issue of Material Fact, liability claim, loss of consortium, matter of law, moving party, nonmoving party, pit, proprietor', Punitive damages, Quadriplegic, Reckless, recklessness, recreational activities, releasee, repose, Ski Flips, skiing, Sports, Summary judgment, waiver form, Wanton, willful Leave a commentTo Read an Analysis of this decision see
Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.
Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186
Michael A. Cantu, et al, Plaintiffs vs. Flytz Gymnastics, Inc., et al, Defendants.
CASE NO. CV-2014-01-0317
State of Ohio, Court OF Common Pleas, Summit County, Civil Division
2016 Ohio Misc. LEXIS 12186
June 2, 2016, Filed
CORE TERMS: summary judgment, reckless, wanton, willful, gymnastics, waiver form, moving party, nonmoving party, pit, releasee, liability claim, recreational activities, issue of material fact, genuine, foam, claims of negligence, repose, sports, genuine issue, initial burden, punitive damages, recklessness, inducement, indemnity, matter of law, fact remains, loss of consortium, inherent risks, assumption of risk, proprietor’
JUDGES: [*1] TAMMY O’BRIEN, JUDGE
OPINION BY: TAMMY O’BRIEN
OPINION
ORDER
The matters before the Court are, Defendant, Flytz Gymnastics, Inc.’s Motion for Summary Judgment filed on January 29, 2016, and, Defendant, John King’s Motion for Summary Judgment filed on January 29, 2016., Plaintiffs filed Separate Briefs in Opposition to these motions on March 4, 2016. Both, Defendants, Flytz Gymnastics, Inc. (“Flytz”) and John King (“King”), filed Reply briefs on March 21, 2016. For the reasons which follow, the Court GRANTS IN PART AND DENIES IN PART, Defendants’ Motions for Summary Judgment.
ANALYSIS
A. Facts:
The instant action arises out of an incident which occurred on August 22, 2011. On that day, Plaintiff Michael Cantu, sustained catastrophic personal injury when he attempted to use a spring board to go over a vault at Flytz Gymnastics and landed head first into a foam block pit. See, Plaintiffs’ Amended Complaint., Plaintiff sustained a spinal cord injury which left him a quadriplegic. See, Plaintiffs’ Amended Complaint.
Plaintiffs, Michael Cantu and his parents, have sued Flytz and its owner, King, alleging that they are liable for his injury., Plaintiffs have alleged that Flytz was negligent with respect to the “open [*2] gym night” attended by Michael Cantu and his friends and that this negligence resulted in Michael’s injury., Plaintiffs have further alleged that the conduct of Flytz and its employees, including King, was willful, wanton and reckless. In addition, Plaintiffs have brought a product liability claim against Flytz under R.C. 2307.71 et seq., Plaintiff’s parents, Aaron and Kristine Cantu, have also asserted a loss of consortium claim.
On the day in question, Michael was with a group of friends when one of them suggested that the group go to Flytz. Michael Cantu depo. at 57. This friend had been to Flytz before to practice his skiing flips. Id. at p. 43. Michael Cantu testified that the group intended to use the trampoline to practice ski tricks. Id. at 43, 63 and 93. Michael’s mother, Kristine Cantu, drove the group to Flytz.
Cantu and his friends were given Nonmember Release and Waiver Forms to read and sign. Because Michael was a minor, his mother signed the form on his behalf. Flytz Motion for Summary Judgment Exhibit B at pp. 32 and 33. Both Michael and his mother have acknowledged that neither of them read the entire form before Kristine signed it. Exhibit A at 69 and 103; Exhibit B at 34 and 35.
Subsequent [*3] to his injury, Kristine Cantu claimed that, had she read the release, she would never have allowed her son to participate in the activities. However, there is undisputed testimony from both Kristine and Michael Cantu that, throughout his life, Michael Cantu participated in many sports activities and many recreational activities, and that his mother signed release forms on his behalf in the past. Flytz Motion, Exhibit A at 18, 103; Flytz Motion, Exhibit Bat 15-16.
Plaintiff Michael Cantu, was involved in many sports and recreational activities and both he and his mother testified that they were aware that, inherent in those activities, there was always the risk of injury. Michael had previously participated in football, karate, volleyball and golf, and was interested in skiing, snowboarding and skateboarding. In fact, Plaintiff acknowledged he had sustained prior sports injuries. Flytz Motion, Exhibit B at 13-18.
Defendant Flytz moves for summary judgment on several bases which include the, Plaintiffs’ execution of a Release and Waiver form, the doctrine of primary assumption of the risk, lack of evidence of willful and wanton conduct by the, Defendants, and the statute of repose., Defendant [*4] King also moves for summary judgment.
B. Law and Analysis:
1. Standard.
In reviewing, Defendants’ Motions for Summary Judgment, the Court must consider the following: (1) whether there is no genuine issue of material fact to be litigated; (2) whether in viewing the evidence in a light most favorable to the non-moving party it appears that reasonable minds could come to but one conclusion; and (3) whether the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996); Wing v. Anchor Media, L.T.D., 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). If the Court finds that the non-moving party fails to make a sufficient showing on an essential element of the case with respect to which it has the burden of proof, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.E.2d 265 (1986).
Civ.R. 56(C) states the following, in part, in regards to summary judgment motions:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts
of the evidence in the pending case, and written stipulations of fact, if any timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Where a party seeks summary judgment on the ground that the nonmoving party cannot [*5] prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. Dresner, 75 Ohio St.3d at 293. The Dresner court continued, the moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.
Banks v. Ross Incineration, 9th App. No. 98CA007132 (Dec. 15, 1999).
In this case, [*6] as demonstrated below, this Court finds that summary judgment is appropriate as to the, Plaintiffs’ claims of negligence, but finds that a genuine issue of material fact exists as to, Plaintiffs’ claims of reckless and wanton conduct and punitive damages.
2. Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement (“Release and Waiver”).
The Release and Waiver Form signed by, Plaintiff Kristine Cantu, is entitled, “Nonmember/Special Event/Birthday Party Activity, Release and Waiver Form.” Flytz Motion, Exhibit C. After the name of the person and contact information, the verbiage of the release and waiver form warns that “this activity involves risks of serious bodily injury, including permanent disability, paralysis and death.” Id.
Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Kristine Cantu depo. at 15-16. Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long, as is shown in part below:
Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement
In consideration [*7] of participating in the activities and programs at FLYTZ GYMNASTICS, INC., I represent that I understand the nature of this activity and that I am qualified, in good health, and in proper physical condition to participate in such activity. I acknowledge that if I believe event conditions are unsafe, I will immediately discontinue participation in this activity. I fully understand that this activity involves risks of serious bodily injury, including permanent disability, paralysis and death, which may be caused by my own actions, or inactions, those of others participating in the event, the condition in which the event takes place, or the negligence of the “releasees” named below, and that there may be other risks either not known to me or not readily foreseeable at this time and I fully accept and assume all risks and all responsibility for losses, cost and damages I incur as a result of my participation in the activity.
I hereby release, discharge, and covenant not to sue FLYTZ GYNMASTICS, INC., its respective administrators, directors, agents, officers, volunteers, and employees, other participants, any sponsors, advertisers and if applicable, owners and lessors of premises on which [*8] the activity takes place (each considered one of the “RELEASEES” herein) from all liability, claims, damages, losses or damages, on my account caused, or alleged to be caused, in whole, or in part, by the negligence of the “releasees” or otherwise, including negligent rescue operations and further agree that if, despite this release, waiver of liability and assumption of risk, I, or anyone on my behalf makes a claim against any of the Releasees, I will indemnify, save and hold harmless each of the Releasees from any loss, liability, damage or cost which may incur as a result of such claim.
I have read the RELEASE AND WAIVER OF LIABIITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, understand that I have given up substantial rights by signing it and have signed it freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law and agree that if any portion of this agreement is held to be invalid the balance, notwithstanding, shall continue in full force and effect.
The form specifically acknowledges that the activities and programs at Flytz involved “risks of serious bodily injury, [*9] including permanent disability, paralysis and death which may be caused” by the releasee’s actions or by the actions of others. It further identifies that “there may be risks either not known” or “not readily foreseeable” and that the releasee “accepts and assumes all risks for losses and damages.” Id. The form further releases claims of negligence by Flytz and includes a covenant not to sue, as well as indemnity and hold harmless provisions. The release was signed by Kristine Cantu on behalf of her son and indicated that she understood all the risks involved.
It is well established in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor’s acts of negligence. See, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384; Zivich v. Mentor Soccer Club, Inc. 82 Ohio St.3d 367, 696 N.E.2d 201, 1998-Ohio-389. As noted by the Ninth District Court of Appeals, in order to be upheld, the contract must be clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist. 1997). In the instant action, the Release and Waiver Form signed by Kristine Cantu clearly meets these requirements.
Plaintiffs argue [*10] that the intake clerk, Stacey King, did not specifically advise Kristine that, by signing the forms, she would be absolving Flytz of liability for injuries sustained by her son, by his negligence or the negligence of others., Plaintiffs attempt to circumvent the Release and Waiver by alleging it is unenforceable because of fraud in the inducement. They argue that Kristine Cantu was induced to sign the form upon misrepresentations made by Stacey King.
The Court notes that, Plaintiffs have not pled fraud in their Amended Complaint. Even if, Plaintiffs can be found to have properly pled a claim of fraud in the inducement, a release obtained by fraudulent inducement is merely voidable upon proof of fraud. Holler v. horror Corp., (1990), 50 Ohio St.3d 10, 14 at ¶ 1 of the syllabus. “A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.” Haller, supra at 14. In the instant action, there is no evidence of fraud. The Court finds that, Plaintiffs were advised of [*11] serious inherent risks by virtue of the Release and Waiver Form. Accordingly, the Court GRANTS summary judgment on any claims of negligence.
3. Primary Assumption of Risk.
Even without the Release and Waiver, this Court would also find that the, Defendants are entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk.
The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.” Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” Aber v. Zurz, 9th Dist No. 23876, 2008-Ohio-778, ¶9. “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.” (Citations omitted.) Bastian v. McGannon, 9th Dist. Lorain No. 07CA009213, 2008-Ohio – l149, ¶11.
As noted by the Ohio Supreme Court, the determining fact in such cases is the conduct of the defendant, “not the [*12] participant’s or spectator’s ability or inability to appreciate the inherent dangers of the activity.” Gentry v. Craycraft, 101 Ohio St.3d 141, 802 N.E.2d 1116, 2004-Ohio-
379, ¶9. To survive a primary assumption of risk claim, the, Plaintiff must prove the defendant’s conduct was reckless or intentional. Furthermore, “the reckless/intentional standard of liability applies regardless of whether the activity was engaged in by children or adults, or was unorganized, supervised, or unsupervised.” Gentry, supra at ¶8.
In the instant action, there can be no dispute that, Plaintiff Michael Cantu was engaged in a recreational activity at the time of his injury. Likewise, there can be no dispute that a fall, like that sustained by Michael, is an inherent risk in gymnastics, particularly when one is using a springboard to go over a piece of equipment. As such, there can be no recovery by, Plaintiffs unless it can be shown that Flytz’s actions were either “reckless” or “intentional.” Gentry, supra at ¶6 quoting Marchetti, supra at syllabus; see also, Mainv. Gym X-Treme, 10th Dist. No. 11A0-643, 2102-Ohio-1315 (Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity [*13] unless the defendant acted recklessly or intentionally in causing the injuries. Id. at ¶9.)
Accordingly, Defendants entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk. However, because the, Plaintiffs also claim that, Defendants acted in a reckless, willful and wanton manner, this does not end the analysis.
3. Reckless or Intentional Conduct and Punitive Damages.
The Supreme Court of Ohio has held that there can be no liability for injuries arising out of sporting or recreational activities unless the defendant was reckless or intentionally injured the, Plaintiff. Marchetti v. Kalish, 53 Ohio St.3d 95, 96-98, 559 N.E.2d 699 (1990). In this case, the Court finds that there are genuine issues of material fact as to whether or not, Defendants engaged in recklessness or willful or wanton conduct which resulted in injury to Michael Cantu.
All parties cite to testimony which appears to create genuine issues of material fact related to the instructions given by the, Defendants, Michael Cantu’s responding behavior, Defendant level of supervision and safety procedures, and whether, Defendants actions or inactions rose to the level of recklessness.
Plaintiffs have also cited the testimony [*14] of their expert, Gerald S. George, PhD. Dr. George reviewed industry rules and regulations and examined the facts and evidence in this case. Dr. George admitted that under “appropriate conditions, gymnastics is a reasonably safe and healthy activity for young people.” He, however, cautioned that “in the absence of appropriate safeguards, however, gymnastics becomes an unreasonably dangerous activity. Report at p. 2. Dr. George opines that, Defendants violated a number of safety regulations including “failing to ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution. [*15]
Upon this examination, the Court determines that genuine issues of material fact related to, Defendants’ alleged recklessness and/or willful and wanton conduct exist. Therefore, summary judgment is inappropriate on this issue. Because a question of fact remains on the issue of reckless and/or willful and wanton conduct, summary judgment on the issue of punitive damages is also denied.
4. Ohio’s Product Liability Statute, R.C. 2307.71et seq.
Defendants have also moved for summary judgment on the, Plaintiffs’ product liability claim related to the foam pit into which Michael Cantu fell., Defendants argue that this claim is barred by the statute of repose. This Court agrees.
The statute of repose applicable to claims of product liability, R.C. 2305.10 (C) (1) provides:
Except as provided in division (C)(2), (3), (4), (5), (6), and (7) of this section or in Section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another [*16] product.
The evidence demonstrated that the foam pit was constructed in 2000, and that there were no modifications to the pit at any time thereafter. John King depo. at 61, 67 and 85., Plaintiff’s accident occurred on August 22, 2011, 11 years after the installation of the foam pit. Pursuant to the specific language of R.C. 2305.10 (C) (1), Plaintiffs’ product liability claim is barred by the statute of repose.
From review of, Plaintiff’s brief, Plaintiffs appear to have abandoned this argument. Also, as discussed above, claims for negligence have been released by the, Plaintiffs. However, even barring that analysis, the statute of repose also applies to the, Plaintiffs’ product liability claim, and this claim is, therefore, barred.
5. Consortium.
The claims for loss of consortium by Michael Cantu’s parents, and punitive damages claim are directed at both, Defendants. A cause of action that is based upon loss of consortium is a derivative claim. Messmore v. Monarch Mach Tool Co., 11 Ohio App.3d 67 (9th Dist., 1983). As this Court has determined that, Plaintiff Michael Cantu is not entitled to recovery on negligence claims, the same applies to his parents. However, as genuine issues of material fact remain on the issues of reckless and/or willful and wanton conduct, as well [*17] as on punitive
damages, this Court denies summary judgment to both defendants on the loss of consortium and punitive damages claims.
CONCLUSION
Upon due consideration, after review of the briefs of the parties, the applicable law, exhibits, testimony and other evidence, the Court GRANTS, Defendants’ Motions for Summary Judgment as a matter of law on, Plaintiffs’ negligence claims. However, the Court finds that genuine issues of material fact remain as to whether, Defendants were reckless or acted in a willful or wanton manner. Accordingly the Court DENIES summary judgment as it pertains to, Plaintiffs’ claims of recklessness, and their claims for punitive damages.
The Final Pretrial previously schedule on July 22, 2016 at 8:30 AM, as well as the trial date of August 1, 2016, are confirmed.
IT IS SO ORDERED.
/s/ [Signature]
JUDGE TAMMY/O’BRIEN
Attorneys Terrance P. Gravens/Kimberly A. Brennan
Attorney Michael W. Czack
G-YQ06K3L262
http://www.recreation-law.com
A Waiver is giving up a right and is revocable agreement. A release is a contractual agreement not to sue and can be made irrevocable. If you run a recreational or sporting activity, you want a release, not something where the people can change their minds.
Posted: May 28, 2018 Filed under: Assumption of the Risk, Connecticut, Release (pre-injury contract not to sue) | Tags: abolished, admit, Assumption of risk, assumption of the risk, comparative negligence, conceptually, contractual, Duty of care, exculpatory, favorable, Inherent Risks, legal doctrine, legal sufficiency, legally insufficient, legislatively, Motion to Strike, own negligence, participating, pre-injury, Pre-injury Release, present case, re-leasing, Release, relieve, risks inherent, risky, Rope Swiing, special defenses, statutory prohibition, struck, sustaining Leave a commentHere the defendant used a release. The plaintiff argued it was a waiver and assumption of the risk document and should be barred because they had been outlawed in Connecticut as a defense. The court agreed.
Rodriguez v. Brownstone Exploration & Discover Park, LLC, 2017 Conn. Super. LEXIS 844
State: CONNECTICUT, SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT
Plaintiff: Yulissa Rodriguez
Defendant: Brownstone Exploration & Discover Park, LLC
Plaintiff Claims:
Defendant Defenses:
Holding: for the defendant
Year: 2017
Summary
The plaintiff was injured using a rope swing at the defendant’s park.
Many states abolished the defense of Assumption of the risk. In this case, the plaintiff argued that the release she signed was just an assumption of the risk document and was void because that defense was abolished.
The plaintiff also argued the document was titled a waiver and therefore, was not a release. Both arguments of the defendant were struck down. The first because a waiver is not a release and the second because the document was no different from an assumption of the risk document, which was no longer a defense in Connecticut.
Facts
Plaintiff filed a motion to strike the first two affirmative defenses, or here; the court referred to them as special defenses, the defendant pleaded. When a defendant answers a complaint, the defendant can plead the defenses to the specific facts and legal claims, and the defendant can plead affirmative defenses. Affirmative defenses are a list of approved defenses, that if they are not pled, are lost to the defendant.
Release is an affirmative defense in most states and was pled in this case.
To get rid of the special defenses, the plaintiff filed a motion to strike.
“‘A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.’ A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.’ . . ‘In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency.’ . . . ‘On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient.
The court’s response to the motion to strike is here.
Analysis: making sense of the law based on these facts.
The plaintiff’s argument was because the courts had abolished the defense f assumption of the risk, the releases were not valid because they were only proof of assumption of the risk. The plaintiff argued:
“Waiver” and “Release” are, in actuality, based on assumption of risk because they purport to relieve defendant of liability for risks inherent in the activity, which by statute is not a valid defense in this negligence action.
The first affirmative defense was waiver. In vast majority of states, a waiver is different from a release. Waiver’s can be revoked. When you waive a right, a lot of states allow you to revoke that waiver. A release is a contract and can only be terminated by the terms of the agreement.
The court reviewed the prior defense of assumption of the risk.
‘Traditionally, the doctrine provided a defendant with a complete defense to a claim of negligence that centered on the conduct of the plaintiff . . . [T]he assumption of risk variants fall generally into two separate categories: (1) a negligence defense that the plaintiff’s conduct operated so as to relieve the defendant of a duty of care with regard to the plaintiff; and (2) a negligence defense that, while conceding that the defendant owed a duty of care and breached that duty, precludes recovery by the plaintiff because the plaintiff was aware of the defendant’s negligence and the risk thereby created, but nevertheless chose to confront such risk.
However, the courts and or legislatures had abolished the defense because they felt it had not kept up with the times. Instead, the concept of assumption of the risk was part of the facts the jury undertook to determine the damages to be awarded to the plaintiff. If the plaintiff assumed the risk, then the jury could reduce the damages the plaintiff would receive.
Since then, many courts have reinstated the defense of assumption of the risk as a defense in sport and recreational activities. Many legislatures have also brought back the defense in statutes covering sports and recreational activities, such as Skier Safety Statutes. However, Connecticut has not done that. In Connecticut, assumption of the risk is not a defense; it has been merged into comparative negligence.
In this case, the release signed by the plaintiff was titled “Assumption of Risk, Release of Liability, Waiver of Claims & Arbitration Agreement.” The plaintiff argued that the document was a written assumption of risk document and should be void.
Under Connecticut law a Waiver is “the voluntary relinquishment or abandonment of a known right or privilege.” This is quite different from a release, which is contractually giving a right to sue over an injury prior to the injury. Waiver’s can be oral or in writing. The common waiver you hear about all the time is a criminal suspect on TV being told their rights. At any time, the criminal defendant can change their mind and not give up their rights because they waived their rights, which are reversible.
Connecticut courts have recognized that pre-injury waiver as a defense to a claim based on inherent risks from an activity is not the same as a waiver of a claim of defendant’s own negligence.
The court continued its analysis of Connecticut law by reviewing Connecticut Supreme Court decisions on the issue. Here the court differentiated between inherent risks, which are still assumed and assumption of risk as a defense.
…the Supreme Court differentiated between pre-injury release from inherent risks of an activity, defined by reference to a dictionary definition of “inherent” as “structural or involved in the constitution or essential character of something,” from release of negligence that involves the exercise of some control over the activity and/or conditions by defendant.
The court then found that the language of the waiver was only a defense to the inherent risks of the activity. A waiver under Connecticut law is not a release.
The language of the waiver provision here is limited to “the inherent risks of this activity” and is not broad enough to exculpate defendant for its own negligence.
The defendant was unable to prove that there was a difference between their documents and the loss of the assumption of risk defense. Meaning the defendant lost their motion because the waiver was the same in this case as assumption of the risk, which had been abolished.
Defendant has failed to show that the waiver special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to waiver by contract. The motion to strike the First Special Defense is denied.
The second motion based on release was also denied for the same reason.
A contractual release of liability for inherent risks from an activity is not conceptually the same thing as assumption of risk from participation in a risky activity. Defendant has failed to show that the release special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to releases by contract. The motion to strike the Second Special Defense is denied.
So Now What?
This decision picked through, carefully, the differences between a defense that had been merged into a way to determine damages, assumption of the risk, and a contractual document to release the defendant from liability.
The decision is also confusing as hell!
The result is you must carefully write your release in Connecticut. You must define the risks and have the signor agree those risks are inherent in the activity.
What do you think? Leave a comment.
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A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.
Posted: May 14, 2018 Filed under: Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, atmosphere, contravene, derivative, Downhill, exculpatory, Exculpatory clause, experienced, hazardous, Ice, icy, Inherent Risks, loss of consortium, matter of law, Notice, particularity, Pennsylvania Skier Safety Act, plain language, Public Policy, Release, release agreement, releasing, Resort, risk doctrine, season, Ski, Skier, skiing, Snow, Snowsports, Sport, website, written applica-tion Leave a commentThe defendant was one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also laid out the risks of skiing quite broadly in its information to the plaintiff.
Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344
State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania
Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill
Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.
Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area
Defendant Defenses: Assumption of the Risk and Release
Holding:
Year: 2006
Summary
Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.
Facts
The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)
While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.
The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.
A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.
Analysis: making sense of the law based on these facts.
The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”
Under Pennsylvania law, a release to be valid must:
The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.
The court then went through the facts in this case to see if the requirements under the law were met.
The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”
The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”
The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.
The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.
The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.
The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.
The court found that icy conditions were an inherent risk of skiing in Pennsylvania.
Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.
The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.
So Now What?
It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.
Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.
In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.
What do you think? Leave a comment.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
Outdoor Recreation Insurance, Risk Management and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Words and Phrases Defined in an Articles
Posted: May 9, 2018 Filed under: Uncategorized | Tags: Adhesion Contract, Amicus Curiae, Assumption of risk, Certiorari, Definitions, Derivative Claim, Duty of care, Express Assumption of risk, Failure to Warn, Foreseeability, Forum non conveniens, Fraudulent Misrepresentation, Gross negligence, Implied Assumption of the Risk, Inherently Dangerous, Lex loci contractus, Negligence, Negligence per se, Negligent Misrepresentation, Open and Obvious, Phrases, Primary Assumption of Risk, Product liability, Public Policy, Punitive damages, recklessness, Release, Remittitur, Rescue Doctrine, Respondeat Superior, Secondary Assumption of Risk, Sudden Emergency Doctrine, Unconscionable, Wanton or Reckless, willful, Wrongful Death Leave a commentThe articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.
This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.
Last Updated April 24, 2018
Only a New York City bike share case create a 34-page opinion on just motions that are filed. The results are all over the board, both the defendants and the plaintiff winning issues on an electronic release
Posted: March 19, 2018 Filed under: Assumption of the Risk, Cycling, New York, Release (pre-injury contract not to sue) | Tags: affirmative defenses, Assumption of risk, bicycle, Bike, Bike Share, Citi Bike, Contractor, Cyclists, genuine, helmet, Immunity, installation, installed, lane, matter of law, Membership, municipality, negligence claims, New York City Bike Share, Notice, Open and Obvious, parking, planning, Primary Assumption of the Risk, Public Policy, Qualified Immunity, recreational, Release, Release / Waiver, release agreement, rider, riding, roadway, safe, station, street, Summary judgment, Traffic, user, wear, Wheel Leave a commentA Ten-page release was upheld as valid. But the process was full of enough holes the plaintiff is still in the game.
Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034
State: New York: United States District Court for the Southern District of New York
Plaintiff: Ronald D. Corwin, et al
Defendant: NYC Bike Share, LLC, et al
Plaintiff Claims: was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence, professional negligence, and malpractice
Defendant Defenses: Release, Assumption of the Risk Immunity
Holding: Mixed
Year: 2017
Summary
Extremely complicated decision because of the number of claims of the plaintiff and the number of defendants in the case. Each defendant has a different perspective on the defenses.
The decision looks at what happens if you are not wearing a helmet while cycling and you receive a head injury as well as how assumption of the risk and open and obvious defenses are dealt with in a city and against city agencies.
The last issue is electronic releases in New York City.
Facts
The plaintiff had signed up for a year-long bike share rental agreement with New York City bike share. He did that online and, in the process, agreed to a release that was ten pages.
He rented a bike one day and was riding on the street. He felt pressure from traffic on his left. A bike share area was coming up on his right and he rode into it. The bike share locations must be on the streets in New York. He continued through the area and at the end hit a concrete wheel stop. He crashed suffering injuries.
Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging that the Citi Bike station in question was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.
He sued everyone there was in New York. Sixteen different law firms are listed in the case. The plaintiff sued:
City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program
NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system
New York City Department of Transportation
Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company
Alta Planning + Design (“APD”)
Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system
Metro Express Services, Inc. (“Metro Express”) installation
Sealcoat USA, Inc. (“Sealcoat”) installation
The lawsuit was in Federal District Court. This opinion is the magistrate’s opinion on the motions filed by the parties. Judge assign non-trial work, such as deciding motions to magistrates. After the magistrate’s opinion is filed the parties have X days to respond/object. The judge then reviews and either adopts, modifies, or writes his own opinion.
When the judge rules on the magistrate’s opinion there is usually a written record of the ruling. There are two additional motions the magistrate writes about that are in the record, but no ruling from the court.
Probably the parties settled based on this ruling.
There are a lot of arguments in this 34-page ruling. I’m only going to write about the ones that are important to the outdoor recreation and cycling community.
Analysis: making sense of the law based on these facts.
The first defense discussed here is the electronic release signed by the plaintiff to become a bike share member and rent bikes.
The first issue was plaintiff did not remember signing the release, but did sign up and admitted that he probably agreed to things.
The Bike Share program could not produce a release “signed” by the plaintiff. They produced a release that was in use at the time the plaintiff signed the release and the produced testimony of a former manager to testify that the only way the plaintiff could have become a member and ride bikes was if he had agreed to the release.
The plaintiff also argued the release was Unconscionable.
A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party
The court first went into the issue of whether the release existed and was signed. The release was determined to be a “clickwrap” agreement.
Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of service. “[U]nder a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.”
The court found clickwrap agreements were enforceable.
Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.
However, the presumption of enforceability is based on several factors.
The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind themselves to contract terms
In New York, the courts have already set a group of tests to determine if a clickwrap agreement is enforceable.
First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement.
Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink.
Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” (collecting cases refusing to enforce such agreements).
Special attention should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted).
Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.
Using this set of parameters, the magistrate reviewed the bike Share release and found it was not unconscionable.
The plaintiff then argued the release was not clear, coherent, or unambiguous.
To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims.
This ambiguity was based on contradictions between two sections in the ten-page release. However, the court found there was no ambiguity.
Then the plaintiff argued the release was void on public policy grounds.
The plaintiff raised three arguments on why the release violated public policy. It violated New York City Administrative Code, it violated New York General Obligations law § 5-326 and it violated the cities common law duty to maintain roads.
The court found New York City administrative code could not serve as a basis for invalidating a release.
New York General Obligations law § 5-326 is the statute that restricts on who can use a release. The language of the statutes says that “operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” can’t use a release. Since the bike share program was not a facility, the release was valid.
Finally, the common law duty the city of New York had to maintain the roads did not violate the release because “…the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads.”
The release was not void based on public policy considerations.
However, the release did not apply to the city of New York because that would be contrary to public policy.
In the end, the negligence claims of the plaintiff were denied because of the release. The gross negligence claims were still valid. Under New York Law and the law of most states, claims for gross negligence cannot be stopped by a release.
The next issue was how the fact the plaintiff did not wear a helmet, at the time of his injury, would be used in the case.
The defendants argued that the plaintiff not wearing a helmet should be used by the defendants to show the plaintiff was liable for his injuries, (that the plaintiff was comparative negligence), to prove assumption of the risk, and to mitigate the damages he incurred.
The plaintiff argued that since there was no statutory duty to wear a helmet, the defendants could not make their arguments.
The court applied the same rationale to wearing a bike helmet as the courts had done in New York to wear a seat belt in a car crash. Not wearing a bike helmet, could not be used to prove liability on the part of the plaintiff but it could be used to reduce damages.
…the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how damages, if any, should be assessed.
The defendant then argued they should have qualified immunity on the plaintiff’s claims of failing to provide a bike helmet to him while renting a bike.
Immunity is granted by statute to governments and their agencies for the decisions they make. As long as the decisions are not intentional and thought out the immunity applies. The immunity then stops the courts from reviewing those decisions as long as the decisions are made under the guidelines the law has set out.
Although the city may use the fact the plaintiff did not wear a helmet to reduce any damages the city might owe to the plaintiff. The plaintiff cannot use that argument to say the city was liable for not providing helmets. Nor can the plaintiff argue that his not wearing a helmet was unreasonable and did not breach a duty of care.
Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.
Here those guidelines were made by the city in its decision to not include helmets in the rentals of the bikes.
He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.
Assumption of the Risk
The defendants moved for summary judgment because the plaintiff assumed the risk of his injuries while riding a bike. Primary assumption of the risk is defined as:
In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.
The risks were also identified in the release the plaintiff signed which had been accepted by the court.
Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.”
However, the court rejected the defense because the plaintiff at the time of his injury was not engaged in a sporting activity.
Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred.” Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.
So, assumption of the risk only applies to recreation and sports in New York? If you are walking down a sidewalk and see a hole in the sidewalk, on your way to work you don’t assume the risk if you fall into the hole?
The next argument by the defendants is not liable because the danger the plaintiff encountered was open and obvious.
The Open and Obvious defense seems fairly simple. If the thing or condition that injured the plaintiff was open and obvious then the plaintiff cannot sue for his injuries. It is very similar to an assumption of the risk defense.
A defendant has “no duty to protect or warn against an open and obvious condition which is not inherently dangerous. Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion
The defendants argue the concrete wheel stop was open and obvious.
…because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.
The plaintiff’s argument, based on the testimony of his expert witness was the wheel stop was not open and obvious because it was too big was located in the travel lane and had been camouflaged, in the way it was put in and painted.
The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.”.
How something could be too big and then not be open and obvious is confusing. This was enough for the court to deny motion for summary judgment based on the open and obvious theory.
Gross Negligence of the Bike Share Defendant
Gross negligence under New York law is
…conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” “In order to establish a prima facie case in gross negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.
The plaintiff’s expert opined that the defendants ignored sound engineering practices when creating and installing the wheel stop and that it was foreseeable that the injuries would occur when the wheel stop was placed in the cycling path. Based on that language, the court found that the actions of the defendants could be defined as gross negligence.
The defendant won most of the decisions, however, the plaintiff won enough and won significant ones that allowed the litigation to continue.
So Now What?
The final paragraph of the decision has a review of all decisions for the plaintiff and the defendants if you would like to keep a tally. However, there are several decisions concerning plaintiffs that were not reviewed here because they had no relationship to outdoor recreation or the legal issues commonly faced in outdoor recreation.
Obviously, the injuries to the plaintiff are significant to bring such forces to this litigation to justify this much work. The amount of effort put into prosecuting a case for a plaintiff can SOMETIMES be an indication of the damages to the plaintiff when those damages are not identified in the decision.
More importantly, the legal issues of suing New York City and its agencies are far more complex than found in most cities.
There are some interesting points worth noting. You could guess that the judge thought a ten-page release was long since she pointed it out. However, you cannot argue that your release is too long. Especially since electronically, they do not have a length that is measured so easily.
Not wearing a helmet can be an issue in cycling and possibly skiing, even though the effectiveness of wearing one can be disputed. I suspect the next step would be to find a helmet expert for the plaintiff to argue that a helmet would not have prevented the damages the plaintiff received and the defendants will find an expert to argue the opposite.
The failure to provide proof that the plaintiff signed the release was overcome. However, design your system so you don’t have to jump through these hurdles. Create a system that matches the signing to the credit card or other way of showing that on this date at this time the person entered his name address, and credit card number and clicked on this button saying he accepted the release. Then you add, that his credit card would not have been charged unless he agreed to the release.
If you are designing bike share locations, do so in a way that people on bikes can assume they can ride through them.
What do you think? Leave a comment.
|
James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
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Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034
Posted: February 22, 2018 Filed under: Assumption of the Risk, Cycling, Legal Case, New York, Release (pre-injury contract not to sue), Uncategorized | Tags: affirmative defenses, Assumption of risk, bicycle, Bike, Bike Share, Citi Bike, Contractor, Cyclists, genuine, helmet, Immunity, installation, installed, lane, matter of law, Membership, municipality, negligence claims, New York City Bike Share, Notice, Open and Obvious, parking, planning, Primary Assumption of the Risk, Public Policy, Qualified Immunity, recreational, Release, Release / Waiver, release agreement, rider, riding, roadway, safe, station, street, Summary judgment, Traffic, user, wear, Wheel Leave a commentTo Read an Analysis of this decision see
Only a New York City bike share case create a 34-page opinion on just motions that are filed. The results are all over the board, both the defendants and the plaintiff winning issues on an electronic release
Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034
Ronald D. Corwin, et al., Plaintiffs, -against- NYC Bike Share, LLC, et al., Defendants.
14-CV-1285 (SN)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034
March 1, 2017, Decided
March 1, 2017, Filed
SUBSEQUENT HISTORY: Reconsideration denied by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 53812 (S.D.N.Y., Apr. 7, 2017)
Summary judgment granted by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 57254 (S.D.N.Y., Apr. 13, 2017)
CORE TERMS: bike, station, wheel, helmet, bicycle, summary judgment, street, cyclist’s, parking, user, roadway, lane, public policy, matter of law, traffic, wear, installation, riding, notice, negligence claims, qualified immunity, affirmative defenses, municipality, contractor, installed, recreational, planning, genuine, rider, safe
COUNSEL: [**1] For Ronald D. Corwin, Beth Blumenthal, Plaintiffs: Martin William Edelman, LEAD ATTORNEY, Edelman & Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT; Neil R. Finkston, Law Office of Neil R. Finkston, Great Neck, NY.
For NYC Bike Share LLC, Alta Bicycle Share, Inc., Defendants, Cross Claimants, Cross Defendants: Peter W. Beadle, Law Offce of Vaccaro & White, LLP, New York, NY; Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.
For City of New York, Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Howard Martin Wagner, Trief and Olk, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.
For Alta Planning + Design, Inc., Alta Planning Design Architecture of New York, PLLC, Defendants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY; Katherine Buchanan, The Law Firm of Hall & Hall, LLP, Staten Island, NY.
For MetroExpress Services, Inc., Defendant: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.
For Sealcoat USA, [**2] Inc., Defendant, Cross Defendant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY; Brian L. Battisti, Morrison Mahoney, LLP(NYC), New York, NY.
For Sealcoat USA Inc., ADR Provider: Mitchell John Baker, LEAD ATTORNEY, Baker, Leshko, Saline & Blosser, LLP, White Plains, NY.
For Metro Express, Inc., Interested Party: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.
For New York City Department of Transportation, Cross Claimant, Cross Defendant: Kimberly Kristen Brown, Hoey, King,Epstein, Prezioso & Marquez, New York, NY.
For NYC Bike Share LLC, Cross Claimant, Cross Defendant: Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.
For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY.
For Alta Planning Design, Inc., Alta Planning Design Architecture of New York, PLLC, Cross Claimants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY.
For Beth Blumenthal, Cross Defendant: Martin William Edelman, LEAD ATTORNEY, Edelman & [**3] Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT.
For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.
For MetroExpress Services, Inc., MetroExpress Services, Inc., Cross Defendant, Cross Claimants: Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.
For Sealcoat USA, Inc., Cross Claimant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY.
JUDGES: SARAH NETBURN, United States Magistrate Judge.
OPINION BY: SARAH NETBURN
OPINION
[*480] OPINION & ORDER
SARAH NETBURN, United States Magistrate Judge:
On October 25, 2013, Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging [*481] that the Citi Bike station in question was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and [**4] professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.1
1 As Blumenthal’s claims depend entirely on the viability of Corwin’s causes of actions, the two claims are referred to in shorthand as “Corwin’s” throughout the text of the opinion. Where the Court grants summary judgment or partial summary judgment to defendants on certain of Corwin’s claims, Blumenthal’s claims are dismissed as well. Vega-Santana v. Nat’l R.R. Passenger Corp., 956 F. Supp. 2d 556, 562 (S.D.N.Y. 2013) (“Where the primary cause of action is dismissed on summary judgment, the loss of consortium claim must be dismissed as well.”).
On February 27, 2014, Corwin brought claims against three defendants: the City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program; NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system, and the New York City Department of Transportation (“DOT”). ECF No. 1, Compl. On December 31, 2014, Corwin amended his complaint to remove the DOT and add three additional defendants: Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company; and Alta Planning + Design (“APD”) and Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system. ECF No. 27, First Am. Compl. After conducting significant discovery, Corwin moved for and was granted leave to amend his complaint to join two additional defendants, Metro Express Services, Inc. (“Metro Express”) and Sealcoat USA, Inc. (“Sealcoat”), both contractors who are [**5] alleged to have participated, in violation of the station’s design plan, in the installation of the wheel stop struck by Corwin. ECF No. 192, Second Am. Compl.
All of the defendants move separately for summary judgment on a variety of grounds.2 All defendants argue that the condition was open and obvious and that Corwin’s negligence claims generally fail as a matter of law. The City, NYCBS, and APD argue that Corwin’s common-law negligence claims were released by the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”) that he had to sign as a condition of Citi Bike membership, and that they are barred by the doctrine of primary assumption of the risk. APD, Metro Express and Sealcoat argue that, as third-party entities in a contractual relationship with Corwin, they owed him no duty of care. APD additionally argues that the Citi Bike station’s deviation from the design is an absolute bar to liability, and that there was no causation between its design and Corwin’s injury. The City also contends that Corwin’s claims are barred due to the doctrine of qualified immunity and its lack of written notice of the condition pursuant to a municipal notice statute.
2 As their liability is exclusively a product of being a parent company of a wholly owned subsidiary, Alta Bicycle Share, Inc./Motivate, Inc. moves for summary judgment together with NYCBS, and APD moves together with APDNY. For the sake of brevity, these motions are referred to as the “NYCBS” and “APD” motions, respectively.
For his [**6] part, Corwin moves for partial summary judgment on two issues. First, he argues that the Release Agreement is unenforceable on numerous statutory, public policy, and contract formation grounds, and that defendants’ affirmative defenses [*482] relying on the Agreement should be dismissed as a matter of law. Second, he contends that the fact that he was not wearing a helmet at the time of the accident is irrelevant as a matter of law to issues of assumption of the risk, comparative fault, or failure to mitigate damages, and therefore defendants’ affirmative defenses relying on this argument should be dismissed.
For the following reasons, the cross-motions for summary judgment are GRANTED in part and DENIED in part. Corwin’s motion to dismiss defendants’ affirmative defenses relying on the Release Agreement is DENIED as to NYCBS; the Agreement is enforceable as a matter of law as to NYCBS. Corwin’s motion to dismiss the affirmative defenses relating to the Release Agreement is GRANTED as to the City because a contractual waiver of the City’s non-delegable duty to maintain public thoroughfares would be contrary to public policy. Corwin’s motion to dismiss defendants’ affirmative defenses relating [**7] to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED; as stated above, the Release Agreement is ineffective to waive Corwin’s claims at to the City, and the City has not demonstrated its entitlement to judgment as a matter of law on qualified immunity, notice, or other grounds. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable as to NYCBS, Corwin’s common-law negligence claims are barred, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED because APD and APDNY did not owe any duty to Corwin. Accordingly, APD and APDNY are dismissed from this case. Metro Express and Sealcoat’s motions for summary judgment are DENIED because a genuine dispute of material fact exists as to whether they owed Corwin a duty of care under applicable New York law.
BACKGROUND
I. History of the Citi Bike Program
Beginning in 2009, the City of New [**8] York began to study the feasibility of installing a bike share system in and around City streets, located in curbside parking lanes, on sidewalks, and near public spaces and parks. ECF No. 293, City’s Rule 56.1 Statement (“City St.”) ¶ 2. On April 10, 2012, the City and NYCBS entered into an agreement for the design, construction, operation, maintenance, and publicizing of “Citi Bike,” a network of self-service bike share stations with publicly available bicycles. ECF No. 310, Corwin’s Rule 56.1 Statement (“Corwin St.”) ¶ 2. The system became operational in May 2013. City St. ¶ 5; ECF No. 317, NYCBS’s Rule 56.1 Statement (“NYCBS St.”) ¶ 1.
The City-NYCBS contract required NYCBS to design and install on-street bike parking stations “with appropriate protections and markings from adjacent parking and moving traffic. . . . [including] non-permanent bollards and paint markings.” City St. ¶ 31. The contract also noted that all protections and markings were to be preapproved by the DOT’s Division of Traffic. Id.
The design for the Citi Bike stations was modeled in part on the City’s previous experience with “bike corrals,” which were also placed in parking lanes and were designed by the DOT’s Highway Design Unit and [**9] Pedestrian and Bicycle Group. City St. ¶¶ 41-42. These corrals had many elements that would ultimately be integrated [*483] into the Citi Bike stations, such as wheel stops, paint marking and bollards. Id. ¶ 42.
At the time that the NYCBS contract was signed with the City, APD and APDNY were subsidiaries of Alta Bicycle Share, Inc., NYCBS’s parent company. Id. ¶ 48. APD assembled a team of architects, engineers, and designers to collaborate with the City on station design. Id. ¶¶ 49-50. Using a bike corral on Smith and Sackett Street as an exemplar, the APD and the City developed “Station Siting Guidelines” that included the use of unpainted, concrete wheel stops. Id. ¶¶ 51-57. Though the City originally approved the use of rubber wheel stops, it instructed NYCBS to replace them with concrete wheel stops because the rubber stops were not sufficiently durable. Id. ¶ 96. The wheel stops were considered by APD to be necessary to prevent damage to the station equipment by encroaching vehicles. Id. ¶ 58.
The final design for Citi Bike stations situated in parking lanes included white thermoplastic markings and three-foot tall, reflective, flexible delineators on or near the markings. Wheel stops [**10] were to be used in the stations to protect the station equipment. Id. ¶¶ 64-66. These elements were collectively referred to as “street treatment.” Id. ¶ 81. While NYCBS installed the station equipment directly, it contracted the installation of street treatment to Metro Express, allegedly without the City’s awareness. Id. ¶ 83. MetroExpress, in turn, subcontracted this work to another entity, Sealcoat, allegedly without the awareness of either the City or NYCBS. Id. ¶¶ 85-86.
The City considered, but chose not to mandate that Citi Bike riders wear helmets. It also did not provide helmets for Citi Bike riders on demand. Id. ¶ 8. The City came to this conclusion because (a) New York law did not mandate that adult cyclists wear helmets and it did not want to promote different standards for Citi Bike riders and other cyclists as a matter of public policy; (b) it believed, based on studies conducted in other cities, that mandatory helmet laws decreased bicycle ridership in general and bike share system use in particular; (c) certain statistics indicated that mandatory helmet laws actually decreased cyclist safety by reducing the number of cyclists on the road; and (d) research suggested [**11] that helmeted cyclists tended to ride more recklessly than those without helmets. Id. ¶¶ 9-16; Corwin St. ¶ 10. The City also specifically evaluated the feasibility and wisdom of instituting a public helmet distribution system, but ultimately concluded that there were numerous logistical barriers to such a system, such as hygiene, the fact that the structural integrity of helmets would be compromised if they were involved in an accident, and lack of proper fitting and sizing capabilities. City St. ¶¶ 18-22. The City further considered what it viewed as unfavorable experiences with such systems in Seattle, Boston, and Melbourne, Australia. Id. ¶ 25. The City did, however, provide annual Citi Bike members with discounted vouchers for helmets and expanded its helmet giveaway and fitting programs. Id. ¶¶ 27-28.
II. Design and Installation of Citi Bike Station on East 56th Street and Madison Avenue
The station where Ronald Corwin’s accident occurred was located at the intersection of East 56th Street and Madison Avenue. Id. ¶ 98. The City issued a permit to NYCBS for the installation of the station on July 22, 2013, and the station equipment was installed on July 30, 2013. Id. ¶¶ 103-04. [**12] The City approved APD’s design drawing of the station on August 6, 2013, including all street treatment. Id. ¶ 100. The approved design had only one wheel stop at the west end of the station, [*484] no thermoplastic striping within the boxes at the ends of the station, a station width of eight feet, and a total of six delineators. ECF No. 301, Alta Planning and Design Rule 56.1 Statement (“APD St.”) ¶ 30. None of the site plan drawings, including the approved drawing, contained a wheel stop at the east end of the station closest to Madison Avenue.
The street treatment at the East 56th Street and Madison Avenue station was installed on or about October 22, 2013. APD St. ¶ 31. Notwithstanding its absence on the approved plan, a wheel stop was installed at the east end of the station as well, and the station did not conform to the approved plan in several other respects: the station footprint was made wider by the installation of thermoplastic striping more than eight feet in width, additional delineators were added, and cross-hatched striping was installed on either end of the station underneath the wheel stops. Id. ¶ 34. Though this is disputed by the defendants, Corwin argues that the wider footprint [**13] is relevant because, as it provided less clearance between the edge of the station and moving traffic, it would have encouraged a cyclist to use the station itself as a temporary riding lane. ECF No. 335, Decl. of Pl.’s Exp. James E. Green, ¶¶ 56-58. The City denies approving the installation of a second wheel stop at this site, and claims that its records do not show that it had written notice regarding the additional wheel stop. City St. ¶¶ 102, 106, 108.
The entity responsible for installing the wheel stop is contested; Metro Express and Sealcoat contend that an October 18, 2013 email from NYCBS informed them only of the need for repairs to the station, and that after Sealcoat representative Ryan Landeck visited the station on October 22, 2013, he reported that there was nothing to be done at the station in a October 24, 2013 email to Metro Express. ECF No. 368-3, Landeck Depo. at 41, 51; ECF No. 368-4, Landeck Oct. 24, 2013 E-mail. Metro Express further contends that the City had often instructed NYCBS, who in turn had instructed Metro Express to install “Supplemental Street Treatments” not depicted on station plans, and that such supplemental installations included second wheel [**14] stops. ECF No. 368-8, May 17, 2013 Email; ECF No. 335-20, Strasser 06/28/16 Depo. at 48-51. Metro Express alleges that on July 17, 2013, and October 9, 2013, it was specifically ordered by NYCBS to install a second wheel stop not depicted on station plans at three stations around the network. ECF 368-10; 368-11; 368-12; 368-13; 368-14. There is no direct evidence in the record, however, that such a request was ever issued for the East 56th Street and Madison Avenue station.
III. Ronald Corwin’s Citi Bike Membership and Release Agreement
Ronald Corwin signed up online for an annual Citi Bike membership on June 25, 2013. Corwin St. ¶ 15. Corwin does not remember the details of the process, and did not recall clicking on or reading the Bicycle Rental, Liability Waiver, and Release Agreement as a condition of membership. Id. ¶ 18. Nevertheless, he did admit in deposition testimony that “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike Pass.” NYCBS St. ¶ 21. NYCBS has not, however, produced a version of the Agreement dated contemporaneously to Corwin’s registration, or Corwin’s actual electronic signature. Corwin St. ¶ 22.
While the applicability and enforceability [**15] of the Release Agreement is disputed by the parties, there is no serious dispute as to its content. NYCBS has produced an agreement dated July 25, 2014, and Justin Ginsburgh, former General Manager of [*485] NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, testified that this agreement was active on the date that Corwin became a member. ECF No. 316, Ginsburgh Decl. ¶¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl. ¶¶ 2-3; ECF 316-1, Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). Ginsburgh attested that it would be impossible to become a Citi Bike member without first being shown the Release Agreement in a scrollable text box and then clicking a box stating “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in (sic) User Agreement.” NYCBS St. ¶¶ 17-18; City St. ¶¶ 118-20.
The Release Agreement contains several provisions, which are reproduced below in relevant part:
Section 6. Releases:
In exchange for You being allowed to use any of the Services, Citi Bike bicycles, Stations, Bike Docks, or related information, You . . . do hereby fully and forever release [**16] and discharge all Released Persons for all Claims that You have or may have against any Released Person, except for Claims caused by the Released Person’s gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, as intended 3rd beneficiaries of such releases.
“Claims” is defined in the Release Agreement as “any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings [or] damages that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information . . . .” “Released Persons” is defined in the Agreement, as relevant, as including: “(i) NYCBS and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns [and] (ii) the City of New York.”
Section 7. Disclaimers:
You do hereby acknowledge and agree that your use of any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, is at your sole risk. . . . [**17] All of the services, Citi Bike bicycles, stations, bike docks, or related information are provided “as is” and “as available” (and you rely on them solely at your own risk). . . . You assume full responsibility and risk of loss for using any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, and NYCBS and all other released persons are not liable for any claim attributable to any of the foregoing.
Section 8. Limited Liability:
You do hereby acknowledge and agree that, except as may otherwise be limited by New York General Obligation Law Section 5-326, NYCBS and all other released persons are not responsible or liable for any claim, including those that arise out of or relate to (A) any risk, danger or hazard described in the Agreement, (B) Your use of or inability to use, any of the services, Citi Bike bicycles, stations, bike docks, or releated (sic) information, (C) your breach of this agreement or your violation of any law, (D) any negligence, misconduct, or other action or inaction by you, (E) your failure to wear a bicycles helmet while using Citi Bike bicycle, or (F) any negligence, misconduct, or other action or inaction of any third party. You do hereby waive all claims with respect to any [**18] [*486] of the foregoing, including those based in contract, tort (including negligence), statutory, or other grounds, even if NYCBS or any of the other released persons has been advised of the possibility of such claims. The total liability of NYCBS and all other released persons for all claims, including those based in contract, tort (including negligence), statutory, or other grounds, is limited to the sum of $100.
Section 9. Assumption of Risk by Member:
Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death to Member or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.
IV. Ronald Corwin’s Ride and Accident
At 10:57 a.m. on October 25, 2013, Ronald Corwin picked up a Citi Bike at a station located on the southeastern corner of 6th Avenue and East 56th Street. From there, he travelled in the direction of Grand Central Station. Corwin St. ¶ 25; NYCBS St. ¶ 32. He was not wearing a helmet. Corwin St. ¶ 26; City St. ¶ 137. Corwin proceeded eastbound in the [**19] traffic lane on East 56th Street, with vehicular traffic proceeding to his left. NYCBS St. ¶ 34. Because Corwin claimed to have been “under pressure” from the vehicular traffic, he turned into the Citi Bike station on East 56th Street and Madison Avenue. Id. ¶ 35. The station area was indicated by a perimeter of 4 inch white thermoplastic stripes on the asphalt roadway, and three foot tall white flexible delineators with gray reflective tape spaced approximately every 10 feet along the thermoplastic striping. Id. ¶ 36. At either end of the station, unpainted concrete wheel stops measuring 5 feet, 10.5 inches long by five inches high, were installed on the roadway. Id. ¶ 40. These wheel stops were framed by a box of white thermoplastic striping with diagonal cross-hatching, staked out by three-foot tall flexible delineators. Id. ¶ 41. While he was travelling within the station “envelope,” the front wheel of Corwin’s Citi Bike hit the concrete wheel stop installed near the crosswalk at the Madison Avenue end of the station, causing him to crash onto the pavement and sustain serious injury. Corwin St. ¶ 26.
ANALYSIS
I. Standard of Review
Under Federal Rule of Civil Procedure 56(a), the court “shall grant summary judgment if [**20] the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party bears the initial burden of establishing that there are no material facts in dispute and must provide “affirmative evidence” from which a factfinder could return a verdict in its favor. Id. at 257. Then “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to [*487] deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1224 (2d Cir. 1994).
In determining whether summary judgment is appropriate, the court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference [**21] could be drawn in favor of the nonmoving party. . . .” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). To create a disputed fact sufficient to deny summary judgment, the non-moving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible. . . .” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). Instead, the response “must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation and internal quotation marks omitted).
II. Waiver and Release
It is undisputed that in order to become a member of Citi Bike, Corwin would have been required to assent to a release of claims as set forth in the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). This Agreement covered “any and all claims, injuries, demands, liabilities, causes of action (including statutory, contract, negligence, or other tort theories) . . . that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information or (b) Your use of any of the foregoing.” It required Corwin to “discharge all Released Persons for all Claims that You have or may have against any Released Person, except [**22] for Claims caused by the Released Person’s gross negligence or willful misconduct.” ECF 316-1, Release Agreement. As relevant here, the Agreement expressly included NYCBS and the City of New York, as well as all of NYCBS’s “owners, managers, affiliates, employees, agents, representatives, successors, and assigns” within the definition of “Released Persons.” Id.
Corwin moves for partial summary judgment to strike the City and NYCBS’s affirmative defenses based on the Release Agreement, arguing that the Agreement is ambiguous, contrary to law, and/or void as a matter of public policy. For their part, the City and NYCBS move for summary judgment arguing that Corwin’s negligence claims against them are waived by the release, with the exception of those sounding in gross negligence. Though it is not expressly named in the release, APD also argues that the claims against it are released because of its relationship to NYCBS.
As a threshold issue, the Court considers if there is a genuine dispute as to whether Corwin signed a release and, if so, its scope. Corwin argues that because defendants have failed to produce an actual copy of the Release Agreement with his electronic signature, or a [**23] copy of the Agreement as it existed when he became an annual member, defendants cannot demonstrate that he signed the waiver at all. Defendants have produced a declaration from Justin Ginsburgh, former General Manager of NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, that describes the membership process and states that Corwin would have [*488] had to agree to the terms of the Agreement in order to become a member. ECF No. 316, Ginsburgh Decl., ¶¶ 7-9. Ginsburgh also declares that the Release Agreement appended to his declaration, dated July 15, 2014, was a “true and complete copy of the User Agreement that was in effect in May 2013 when Mr. Corwin became a Citi Bike member.”3 Id. at ¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl., ¶¶ 2-3 (“The User Agreement . . . was fully in effect when plaintiff Ronald Corwin obtained his Citi Bike membership on June 25, 2013.”). Ginsburgh had previously noted in deposition testimony, however, that he was no longer in his General Manager position as of April 1, 2014, and therefore “[didn’t] know if any changes occurred [to the membership signup] after that.” ECF No. 360-6, Justin Ginsburgh Depo. [**24] at 463. Corwin stated in deposition testimony that he completed the membership application and “signed whatever it is [he] had to sign in order to get [his] Citi Bike pass,” but did not remember the contents of the Agreement or whether he had read it. ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.
3 The first Ginsburgh Declaration inaccurately references Corwin becoming a Citi Bike member in May 2013; in fact, Corwin became a Citi Bike member on June 25, 2013.
Corwin has failed to “set forth specific facts demonstrating that there is a genuine issue for trial,” Wright, 554 F.3d at 266, as to the existence and scope of the Agreement. Defendants have produced declaration testimony from Justin Ginsburgh, and Corwin has challenged the credibility of those statements. He has not, however, despite extensive discovery, introduced any evidence that there was an agreement with different terms in effect when Corwin became a Citi Bike member, or even any evidence that raises doubt as to whether the Agreement provided by defendants was in effect. Nor has Corwin provided any evidence that he was somehow able to sign up for his Citi Bike membership without following the process described by Ginsburgh, which required him to manifest assent to the Release Agreement. Therefore, Corwin has failed to raise a genuine dispute of material fact regarding the existence of a contract between [**25] the parties. Accordingly, whether or not Corwin’s claims are barred by the Release Agreement shall depend solely on the effectiveness of Corwin’s assent under the circumstances, and the enforceability of the waiver provisions as to the various defendants.
A. Unconscionability Analysis in Online “Clickwrap” Contracts
The first question for the Court’s consideration is whether, absent any overarching questions of statutory or common law public policy, the contract is enforceable on its own terms or whether, as Corwin argues, it is an “unconscionable and unenforceable contract of adhesion.” A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10, 534 N.E.2d 824, 537 N.Y.S.2d 787 (1988) (internal quotation marks and citations omitted); see also Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 207 (2d Cir. 1999).
The parties agree that the contract in question is a “clickwrap” agreement. Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of [*489] service. “[U]nder a clickwrap arrangement, [**26] potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 429 (2d Cir. 2004). Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.'” Meyer v. Kalanick, No. 15-CV-9796 (JSR), 199 F. Supp. 3d 752, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *6 (S.D.N.Y. July 29, 2016) (citing Cullinane v. Uber Techs., Inc., No. 14-CV-14750 (DPW), 2016 U.S. Dist. LEXIS 89540, 2016 WL 3751652, at *6 (D. Mass. July 11, 2016)). While the Court of Appeals has not categorically ruled on the issue, it has strongly implied that such contracts are presumptively enforceable. See, e.g., Starkey v. G Adventures, Inc., 796 F.3d 193, 197 (2d Cir. 2015) (noting that case would have been “simpler to resolve had [defendant] used a ‘clickwrap’ mechanism to provide reasonable notice and to obtain [plaintiff’s] assent”). Accordingly, most lower courts have enforced such contracts, absent extraordinary circumstances. See Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 397 (E.D.N.Y. 2015) (collecting cases); Centrifugal Force, Inc. v. Softnet Commc’n, Inc., No. 08-CV-5463 (CM), 2011 U.S. Dist. LEXIS 20536, 2011 WL 744732, at *7 (S.D.N.Y. Mar. 1, 2011) (“In New York, clickwrap agreements are valid and enforceable contracts.”).
Nevertheless, a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability [**27] of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind themselves to contract terms.” Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 32 (2d Cir. 2002) (Sotomayor, J.). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways.” Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *8.
In Berkson, Judge Weinstein of the Eastern District of New York, surveying cases from federal courts nationwide, provided a useful set of parameters to guide this inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement. Berkson, 97 F. Supp. 3d at 401 (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014)). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink. Id. (citing Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-CV-7654 (HLH), 2003 U.S. Dist. LEXIS 6483, 2003 WL 21406289, at *2 (C.D. Cal. Mar. 7, 2003)). Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” Id. at 401-02 (collecting cases refusing to enforce such agreements). Special attention [**28] should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. Id. at 402; see also Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *10 (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text [*490] about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted). Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.
In this case, NYCBS represents that “before the prospective member can proceed to pay for the membership, each person is shown the . . . ‘User Agreement.’ The User Agreement is displayed on the page in its own scrollable text box, which may also be opened in a new window for ease [**29] of viewing and printing.” ECF No. 316, Ginsburgh Decl., at ¶ 7. The “continue” button allowing Corwin to provide his payment information would not activate until Corwin clicked on a statement reading “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in [sic] User Agreement.” Id. at ¶¶ 8-9; Release Agreement, ECF No. 316-1 at 56. The Release Agreement itself, roughly 10 pages in length, contained a bold-faced and underlined section in larger font titled “Releases; Disclaimers; Limited Liability; Assumption of the Risk.” The text of the sections in question are in normal-sized font. Though Corwin stated that he had no specific recollection of reading and signing the Release Agreement, he did admit “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike pass.” ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.
Applying the considerations in Berkson, the Release Agreement is enforceable. The full scrollable text of the agreement was available on the same page a user must utilize to register, requiring no clicking of hyperlinks, and the user cannot continue to input his payment information until [**30] he signals assent to the agreement by taking the affirmative step of clicking a box. While it is possible to imagine clearer signaling of the importance of the waiver provisions to an unwary or unsophisticated consumer, the terms are not hidden or buried in an obscure part of the website, but rather are in plain view. Accordingly, the Release Agreement is not unconscionable, and Corwin is not entitled to strike the City and NYCBS’s affirmative defenses on this basis.
B. Ambiguity
To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims. See, e.g., Spancake v. Aggressor Fleet Ltd., No. 91-CV-5628 (DLC), 1995 U.S. Dist. LEXIS 7319, 1995 WL 322148, at *4 (S.D.N.Y. May 26, 1995). Corwin argues that the waiver is unenforceable due to ambiguity, finding a conflict between Section 8 (“Limited Liability”), which purports to release defendants from claims arising from riders’ “failure to wear a bicycle helmet while using a Citi Bike bicycle,” and Section 5, which does not list failing to wear a helmet as one of 11 “Prohibited Acts.” ECF 316-1, Release Agreement.
There is plainly no contradiction between Section 5 and Section 8. Section 5 lists actions, such as defacing a Citi Bike bicycle, transferring a bicycle to a non-member, or using a cellphone while riding that [**31] could presumably lead to contractual consequences for the member. Not wearing a helmet is not prohibited, which is also consistent with New York law allowing adult cyclists to ride without a helmet. See infra Part III.
Section 8 instead provides a non-exhaustive list of circumstances for which the [*491] contract seeks to limit liability. On its face, the fact that this list is not identical to that in Section 5 presents no contradiction, as they are presented for entirely different purposes.4 Moreover, the examples in Section 8 are meant only to illustrate some of the circumstances under which liability is to be limited; the section refers to limited liability for “any claim, including those that arise out of or relate to . . . your failure to wear a bicycle helmet while using Citi Bike bicycle.” Id. (emphasis added).
4 On wholly separate grounds, in Part III of its opinion, the Court grants Corwin summary judgment on Defendants’ affirmative defenses that Corwin’s failure to wear a bicycle helmet relieves them of liability because as a matter of New York law, the failure to wear a helmet goes only to the question of mitigation of damages. This does not, however, affect the clear and unambiguous nature of the waiver provisions.
As such, the Release Agreement is not void due to ambiguity.
C. Unenforceability on Public Policy Grounds
New York law “frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable, such agreements are subject to close judicial scrutiny.” Gross v. Sweet, 49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979). Therefore, an exculpatory contract must express “in unequivocal terms the [**32] intention of the parties to relieve a defendant of liability for the defendant’s negligence.” Lago v. Krollage, 78 N.Y.2d 95, 100, 575 N.E.2d 107, 571 N.Y.S.2d 689 (1991); Roane v. Greenwich Swim Comm., 330 F. Supp. 2d 306, 321 (S.D.N.Y. 2004) (finding that appearance of the actual word “negligence” was significant in determining whether exculpatory contract was to be enforced). But “even an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced . . . if it is found to violate public policy . . . .” Ash v. New York Univ. Dental Ctr., 164 A.D.2d 366, 369, 564 N.Y.S.2d 308 (1st Dep’t 1990).
Public policy “is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Lubov v. Horing & Welikson, P.C., 72 A.D.3d 752, 753, 898 N.Y.S.2d 244 (2d Dep’t 2010) (citation omitted); see also Lewis v. N.Y. State Dep’t of Civil Serv., 60 A.D.3d 216, 222, 872 N.Y.S.2d 578 (3d Dep’t 2009) (defining New York public policy as “the law of the [s]tate, whether found in the Constitution, the statutes or judicial records”) (citation omitted). Parties may, however, “agree to give up statutory or constitutional rights in a contract, as long as public policy is not violated.” J. D’Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 113, 119, 980 N.E.2d 940, 957 N.Y.S.2d 275 (2012).
Corwin argues that the Release Agreement violates three sources of public policy–New York City Administrative Code § 19-110, which provides that municipal permit holders may be held liable for their own negligence, New York General Obligations Law § 5-326, which invalidates exculpatory clauses in agreements with operators of recreational facilities, and [**33] the City’s non-delegable common-law duty to maintain the public streets.
i. New York City Administrative Code § 19-110
New York City Administrative Code (“NYCAC”) § 19-110 reads:
Liability for damage. In all cases where any person shall engage in any activity for which a permit is required pursuant to [the subchapter concerning streets [*492] and sidewalks], such person shall be liable for any damage which may be occasioned to persons, animals, or property by reason of negligence in any manner connected with the work.
Corwin argues that this statute represents a “public policy” intended to provide a “statutory remedy” against all persons who negligently perform work subject to the issuance of a permit. He notes that there was no explicit reference to waiving any rights or remedies under NYCAC § 19-110 in the Release Agreement, but even if there were, such a waiver would be unenforceable because of an alleged public policy to protect the public and ensure a remedy against any person acting under a permit to individuals injured by their negligence.
Case law regarding § 19-110 (and its predecessor provision, § 19-107) is sparse, and no court has held that § 19-110 provides a statutory right at all–much less a non-waivable statutory right elevated to [**34] the status of public policy. Instead, the available case law deals exclusively with whether the statute can be invoked as a basis for the City to seek indemnification, as opposed to contribution, from a negligent municipal contractor. See City of New York v. Consol. Edison Co., 198 A.D.2d 31, 31-32, 603 N.Y.S.2d 47 (1st Dep’t 1993) (finding that statute did not provide a basis for indemnification, but rather only that a contractor was responsible for its own negligence); Petrucci v. City of New York, 167 A.D.2d 29, 34, 569 N.Y.S.2d 624 (1st Dep’t 1991) (concluding that statute did not provide a basis for indemnification of the City, but only an “intent to render the contractor responsible for those damages actually caused to injured third parties or property by its own negligence or carelessness”); Libardi v. City of New York, 201 A.D.2d 539, 540-41, 607 N.Y.S.2d 717 (2d Dep’t 1994) (same).
This limited case law appears to do no more than clarify, in line with common-law negligence principles, that the City may seek contribution for damages to third parties occasioned by a negligent contractor or property owner conducting work pursuant to a municipal permit. It is plainly insufficient to constitute an overarching public policy guaranteeing Corwin the right to sue any contractor notwithstanding a contractual waiver. Indeed, Corwin has cited no case in which the statute was interpreted to provide a plaintiff a private right of action or a “statutory [**35] remedy” differing in any way from a common-law negligence claim. Accordingly, NYCAC § 19-110 cannot serve as a basis for invalidating the Release Agreement.
ii. New York General Obligations Law § 5-326
New York has a statutory restriction that invalidates exculpatory clauses or agreements between users and owners and operators of recreational facilities. N.Y. General Obligations Law (“GOL”) § 5-326 provides:
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be [*493] deemed to be void as against public policy and wholly unenforceable.
The Release Agreement explicitly refers to this statute, noting that Released Persons are not “responsible or liable . . . except as may [**36] otherwise be limited by New York General Obligations Law 5-326.” ECF No. 316-1.
In order for GOL § 5-326 to apply, the plain text of the statute indicates that the agreement in question must (1) be made between a user and an owner or operator of a “place of amusement or recreation” or “similar establishment,” and (2) a fee or other compensation must be paid for “use” of a “facility” covered by the statute. Courts that have considered situations where equipment was rented and taken out of the control of the facility owner or operator have additionally considered whether the owner or operator exercised a substantial level of control over the environment in which the recreational activity takes place. See, e.g., Dumez v. Harbor Jet Ski, Inc., 117 Misc. 2d 249, 250, 458 N.Y.S.2d 119 (Sup. Ct. Niagara Cty. 1981).
Corwin argues that the Citi Bike program was primarily, or at the very least, substantially, a “recreational” program, and that the defendants’ business plan presupposed a significant number of daily and recreational users. He cites to a state court proceeding in which a neighborhood association challenged the installation of a Citi Bike station in a public park on the grounds that it was purely a commuter program. There, the City argued and the court held that the program fulfilled a valid recreational purpose. Friends of Petrosino Square v. Sadik-Khan, 42 Misc. 3d 226, 977 N.Y.S.2d 580 (Sup. Ct. N.Y. Cty. 2013), aff’d, 126 A.D.3d 470, 5 N.Y.S.3d 397 (1st Dep’t 2015). Therefore, [**37] according to Corwin, because the Citi Bike rental station where the accident occurred was a “place of recreation,” and he paid a fee to access the facility in the form of his annual membership, GOL § 5-326 operates to invalidate the exculpatory clause in the contract.5
5 Corwin also argues that the express language in the Release Agreement referencing GOL § 5-326 operates as an admission that negligence claims stemming from Citi Bike are not waivable and “is compelling proof of defendants’ recognition that [the] waiver is void.” ECF No. 361, Pl.’s Reply Mem. at 8. This is incorrect. Rather, the reference to GOL § 5-326 is plainly to ensure that the waiver provisions are not overbroad, putting users on notice that any such claims, were they to exist, would not be waived. It is not an admission that such claims actually could exist, or that in this case they do exist.
While the parties may dispute whether Corwin’s fateful Citi Bike ride was “recreational” in character, it is clear that the applicability of GOL § 5-326 cannot possibly turn on whether the given individual was using the bicycle recreationally or for commuting purposes. Defendants, moreover, argue that the statute does not apply because the membership fee does not entitle the user access or use of any physical facility; the fee is solely for the rental of a bike, while any individual is free to traverse the Citi Bike stations or New York City streets.
Several New York courts have held that GOL § 5-326 does not apply to accidents occurring on publicly accessible roadways, trails, or fields. See Deutsch v. Woodridge Segway, LLC, 117 A.D.3d 776, 777, 985 N.Y.S.2d 716 (2d Dep’t 2014) (statute not applied to plaintiff who rented a Segway vehicle and was taken on defendant-guided tour of muddy public trail “because the fee she paid to the defendant was for the rental of the Segway vehicle, and was not an admission [**38] fee for the use of the public trail over which the tour was conducted”); [*494] Brookner v. N.Y. Roadrunners Club, Inc., 51 A.D.3d 841, 842, 858 N.Y.S.2d 348 (2d Dep’t 2008) (statute not applied to marathon runner because entry fee “was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run” and “public roadway in Brooklyn where the plaintiff alleges he was injured is not a ‘place of amusement or recreation'”); Tedesco v. Triborough Bridge & Tunnel Auth., 250 A.D.2d 758, 758, 673 N.Y.S.2d 181 (2d Dep’t 1998) (statute not applied to cyclist on paid bike tour “since the Verrazano Narrows Bridge, where the plaintiff . . . was injured, is not a ‘place of amusement or recreation'”); Stuhlweissenburg v. Town of Orangetown, 223 A.D.2d 633, 634, 636 N.Y.S.2d 853 (2d Dep’t 1996) (statute not applied to accident occurring in softball game where no fee was paid to access field).
On the other hand, other courts have applied GOL § 5-326 to certain accidents on publicly accessible roadways, trails, or fields. See Williams v. City of Albany, 271 A.D.2d 855, 856-57, 706 N.Y.S.2d 240 (3d Dep’t 2000) (declining to follow Stuhlweissenburg and invalidating waiver for accident occurring in publicly accessible field for plaintiff playing in privately-operated flag football league); Filson v. Cold River Trail Rides, Inc., 242 A.D.2d 775, 777, 661 N.Y.S.2d 841 (3d Dep’t 1997) (invalidating waiver in horseback-riding accident guided by defendant but occurring on publicly accessible parkland); Wright v. Freeport Hudson Anglers, Inc., 2009 N.Y. Misc. LEXIS 4712 (Sup Ct. Nassau Cnty. Apr. 8, 2009) (invalidating waiver for sea accident occurring in fishing tournament).
In seeking to reconcile [**39] the case law, Defendants point out that every court to consider the applicability of GOL § 5-326 to an accident occurring on a public, paved, urban street has found the statute to be inapplicable. Corwin, for his part, argues that these cases are inapposite because the bike station was not part of a public road at all, but rather a separate “recreational facility” that happened to be located on a public road.6
6 If true, this, of course, would contradict Corwin’s argument that the Release Agreement is unenforceable as to the City because it purports to waive the City’s non-delegable duty to maintain its roads.
Considering the case law and the legislative intent animating the statute, the Court finds as a matter of law that a Citi Bike station is not a “facility” for the purposes of § 5-326. The stations are plainly more properly characterized as storage facilities for bicycles rather than facilities for recreation in and of themselves. Even if riders incidentally enter or pass through the stations on their bicycles, or if the design of the particular bike station that was the site of the accident encouraged riders to pass through it, this does not turn them into “places of amusement or recreation.” Assuming without deciding that Citi Bike is properly characterized as a primarily recreational program, the intended sites for that recreational use are the City’s roadways and bike lanes–the very types of [**40] paved public thoroughfares that courts have held are not “places of amusement or recreation.” See, e.g., Brookner, 51 A.D.3d at 842. Therefore, the station can only be defined in two ways: either it is part of the public road on which riders are meant to engage in recreational activity, or it is a storage facility that is not part of the roadway. Either way, it is not a “place of amusement or recreation” or “similar establishment,” as required to trigger the statute. Accordingly, GOL § 5-326 cannot serve as a basis for invalidating the Release Agreement.
iii. City’s Common Law Duty to Maintain the Roads
New York courts have long held “that a municipality owe[s] to the public the absolute [*495] duty of keeping its streets in a reasonably safe condition.” Friedman v. State, 67 N.Y.2d 271, 283, 493 N.E.2d 893, 502 N.Y.S.2d 669 (1986) (quotations omitted); see also Wittorf v. City of New York., 23 N.Y.3d 473, 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 (2014) (“[A] municipality has a duty to maintain its roads and highways in a reasonably safe condition and liability will flow for injuries resulting from a breach of that duty.”). As this duty has been characterized as “absolute” and “non-delegable” (though subject to the doctrine of qualified immunity, see infra Part IV), Corwin argues that the City’s duty applies to the bike station and wheel stop at issue and cannot be released by means of a private contract. The City [**41] contends that while it does indeed have a duty to maintain public roadways, a contractual waiver of this duty is permissible and would not offend any overarching public policy.
Before considering whether the City’s duty to maintain public roadways may be released by contract to a voluntary participant in a public transportation program such as Citi Bike, the Court must first determine whether the Citi Bike station where Corwin’s accident occurred properly falls within the scope of that duty. Indeed, defendants argue repeatedly that cyclists are not intended to use bike station areas as a travel lane, and that those facilities are intended only for the storage, retrieval, and return of bicycles. They contend that the presence of the concrete wheel stops and surrounding cross-hatching, white thermoplastic striping, and flexible delineators plainly distinguished the bike station from the adjoining roadway, and should have indicated to a cyclist that it was an area in which cycling was not permitted.
In determining the scope of a municipality’s duty, New York courts have generally considered whether the municipality affirmatively undertook to provide an improved area adjacent to the road, [**42] such as a shoulder. If so, it has generally been held to be responsible for its maintenance. See Bottalico v. State, 59 N.Y.2d 302, 305, 451 N.E.2d 454, 464 N.Y.S.2d 707 (1983) (finding highway shoulder to be within scope of duty because it was “both foreseeable and contemplated that, once provided, an improved shoulder at times will be driven upon”). The touchstone of this analysis is foreseeability. It does not necessarily depend on the reasonableness of a plaintiff’s conduct. A municipality is required to “maintain the shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver’s negligence.” Id. at 304; see also Stiuso v. City of New York, 87 N.Y.2d 889, 891, 663 N.E.2d 321, 639 N.Y.S.2d 1009 (1995) (same); Saulpaugh v. State, 132 A.D.2d 781, 781-82, 517 N.Y.S.2d 328 (4th Dep’t 1987) (same).
On the other hand, no duty exists where a paved roadway “is more than adequate for safe public passage and travel beyond those limits is neither contemplated nor foreseeable.” Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 385 N.E.2d 581, 412 N.Y.S.2d 842 (1978) (noting that “utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way . . . [b]ut for the careful driver, the placement of these items near the pavement creates no unreasonable danger”). The courts have repeatedly denied recovery for roadway users whose injury stemmed from the lack of maintenance of areas near the roadway whose use was unforeseeable even in emergencies. [**43] See, e.g., Preston v. State, 6 A.D.3d 835, 836, 775 N.Y.S.2d 115 (3d Dep’t 2004) (no recovery for driver hitting tree seven feet from the edge of the travel line, where “nothing in the record indicat[ed] [*496] that defendant affirmatively took any action to create or maintain the area”); Green v. Cty. of Allegany, 300 A.D.2d 1077, 1077, 752 N.Y.S.2d 487 (4th Dep’t 2002) (no recovery for failure to maintain drainage ditch and culvert headwall); Muller v. State, 240 A.D.2d 881, 882, 658 N.Y.S.2d 727 (3d Dep’t 1997) (no recovery for failure to maintain drainage ditch headwall beyond the traversable shoulder where the “emergency use of such additional area was neither contemplated nor foreseeable”).
The record does not demonstrate that the City actively contemplated that cyclists would be passing through Citi Bike stations; indeed, precisely the alleged failure to contemplate this possibility forms the basis for Corwin’s argument that the City is not entitled to qualified immunity on this issue. The Court does find, however, that the possibility of cyclists passing through Citi Bike stations located in on-street parking lanes was foreseeable. At times, defendants’ representatives have seemed to admit that riding in the parking lane was, if not expressly permitted, at least a common practice of cyclists. ECF No. 335-24, Jon Orcutt 09/03/15 Depo. at 396-97. (“There are plenty of places with a wide parking lane . . . where [**44] a wide parking lane is kind of implemented as a stealth bike lane.”) This conclusion is buttressed by a brief traffic study conducted by Corwin’s expert, James M. Green. ECF No. 335, Green Decl. ¶¶ 35, 57 (finding that cyclists regularly circulated through the station at issue and arguing that this was a “foreseeable consequence of this Station design,” which was wider and jutted further out into the traffic lane). But even absent the expert’s study, logic dictates that, just as an automobile is not generally permitted to drive on an improved shoulder but may swerve into it (negligently or not) in a situation where the circumstances so require, it is foreseeable that a cyclist such as Corwin may (negligently or not) enter into the Citi Bike station seeking safety when feeling pressured by tight traffic.
This is, perhaps, an imperfect analogy: whereas the express and primary purpose of an improved highway shoulder is to provide a safe outlet for motorists in emergency situations, this is not so for Citi Bike stations, whose primary purpose is the storage, retrieval, and return of bicycles. Nevertheless, the applicable case law does not require that the primary purpose of the improved [**45] space abutting the road be for such emergency uses; as stated above, foreseeability is sufficient to trigger the municipality’s duty. Nor have courts drawn distinctions between motorists and other roadway users; instead, they have found that cyclists may bring claims predicated on state or municipal government’s failure to maintain roadways. See, e.g., Cotty v. Town of Southampton, 64 A.D.3d 251, 255, 880 N.Y.S.2d 656 (2d Dep’t 2009) (primary assumption of risk doctrine “not designed to relieve a municipality of its duty to maintain its roadways in a safe condition . . . and such a result does not become justifiable merely because the roadway happens to be in use by a person operating a bicycle”); Caraballo v. City of Yonkers, 54 A.D.3d 796, 796-97, 865 N.Y.S.2d 229 (2d Dep’t 2008) (“[T[he infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity of recreational noncompetitive bicycling, and using the bicycle as a means of transportation.” (citations omitted)).
Finally, there can be no question that the duty to maintain the roads applies not only to the physical condition of the road itself, but also to the placement of [*497] obstacles or hazards that make use of the road unsafe. Annino v. City of Utica, 276 N.Y. 192, 196-97, 11 N.E.2d 726 (1937) (municipality found liable [**46] for a tripod dangerously placed over a manhole cover so as to constitute a dangerous obstruction); Whitney v. Town of Ticonderoga, 127 N.Y. 40, 44, 27 N.E. 403 (1891) (“[T]he impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway.”).
Accordingly, the Court finds that the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads. Therefore, the Court must now decide whether the City can waive this duty by contract as a condition of participating in the Citi Bike public transportation program.
“[E]ven an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced by the courts . . . if it is found to violate public policy either by way of conflicting with an overriding public interest or because it constitutes an abuse of a special relationship between the parties, or both.” Ash, 164 A.D.2d at 369. Indeed, when choosing to invalidate such clauses, courts have often analyzed the “public interest” and “special relationship” prongs together. See id. at 369-71 (invalidating exculpatory clause between dental clinic and patient both [**47] because of the public interest in protecting the welfare of its citizens and ensuring medical quality and the uniqueness of the physician-patient relationship); Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 247-48, 194 N.E. 692 (1935) (invalidating clause between common carrier and passenger because allowing public service corporations to disclaim all liability for negligence by contract is contrary to public interest, and passengers are not typically given a choice in contracting); Johnston v. Fargo, 184 N.Y. 379, 384-85, 77 N.E. 388 (1906) (invalidating exculpatory clause between employer and employees both because of the state interest in the “maintenance of proper and reasonable safeguards to human life and limb” and the unequal bargaining power between the parties). On the other hand, courts have readily enforced exculpatory clauses in arm’s length commercial transactions between two private parties, see, e.g., Florence v. Merchants Cent. Alarm Co., Inc., 51 N.Y.2d 793, 412 N.E.2d 1317, 433 N.Y.S.2d 91 (1980), when not expressly prohibited by statute.
No case has considered the specific question of whether a municipality’s duty to keep its streets in a reasonably safe condition for travel can be waived by contract. For almost two centuries, however, New York state courts have spoken of an “absolute” duty that could not be delegated to third parties. See Annino, 276 N.Y. at 196 (1937) (“The city owed to the public the absolute duty of [**48] keeping its streets in a reasonably safe condition for travel and was bound to exercise reasonable care to accomplish that end.”) (emphasis added) (citations omitted); Storrs v. City of Utica, 17 N.Y. 104, 108-09 (1858) (finding that municipal corporations “owe[] to the public the duty of keeping its streets in a safe condition for travel” and “although the work may be let out by contract, the corporation still remains charged with the care and control of the street in which the improvement is carried on . . . [and cannot] either avoid indictment in behalf of the public or its liability to individuals who are injured.”). The only significant exception to this nondelegable duty is that “it is intended to protect the traveling public”–therefore, [*498] the duty has been held not to extend to injured employees of independent contractors working on road construction projects. Lopes v. Rostad, 45 N.Y.2d 617, 624-25, 384 N.E.2d 673, 412 N.Y.S.2d 127 (1978). In reaching this conclusion, the Lopes court stated that, because the government is responsible for providing the public with roads and highways for travel:
[w]ith this responsibility comes the further obligation to assure, insofar as is reasonably possible, that the thoroughfares of travel will be constructed and maintained in a safe condition. A governmental body would hardly [**49] have fulfilled its responsibility if the roadways it provided for public use were a source of public danger. It is for this reason that “[g]overnments have ever been most zealous to afford special protection to the users of streets, highways and other means of transportation” (1936 Report of NY, Law Rev Comm, p 955).
Id. at 625.
Corwin, a cyclist passing through a bike station located in a parking lane on a public street, falls within the category of those deemed protected by a municipality’s duty to maintain its roadways. While it is certainly understandable that the City would seek to limit its exposure to liability stemming from those using the Citi Bike program, its desire to see this salutary transportation initiative succeed is not sufficiently related to the key, centuries-old public policy of guaranteeing the safety of the users of City streets. It is this public policy that underlies its non-delegable duty to keep streets and roadways safe. The City has designed a public transportation system that involves physical installations in parking lanes on heavily transited streets, and permitted a contractor, NYCBS, to implement and manage that program. Even though the purported liability waiver is confined [**50] to road conditions in the circumscribed area of the bike stations, the Court finds that the enforcement of such a waiver against over a million Citi Bike users is contrary to the public policy that dictates that the City has the duty to guarantee road safety.7
7 The waiver would certainly be effective as to claims unrelated to road conditions, such as, for example, the quality of the bicycles or the malfunctioning of the rental kiosks.
After all, the fact that Corwin was riding a Citi Bike, as opposed to his own bicycle, at the time of his accident was purely coincidental. The City does not articulate any public policy in barring Corwin’s claim but permitting a claim brought by a non-member of Citi Bike who strikes the same wheel stop while riding his own bicycle. There is no basis for immunizing the City from suit by one class of cyclists–who participate in a highly publicized transportation program such as Citi Bike–while allowing non-Citi Bike users to bring suit for the same accident occurring in the same area of the street. Simply put, the law clearly imposes upon the City a duty to ensure road safety for all pedestrians, cyclists, motorists, and road users on all sections of the road that are foreseeably transitable.
At oral argument, counsel for the City indicated that the execution of transportation programs such as Citi Bike would not be feasible without [**51] such waivers of liability. But the City is not left wholly unprotected. As discussed in Parts IV and V of this opinion, the finder of fact may determine that the City is entitled to qualified immunity in regards to the station design, or that the City was not “affirmatively negligent” and is thus protected by the notice provisions of New York Administrative Code § 7-201. Therefore, the Court does not believe that its invalidation of the [*499] waiver as to road conditions and hazards within the bike stations threatens the viability of the Citi Bike program.
D. Conclusion
For the foregoing reasons, the Release Agreement effectively releases Corwin’s common-law negligence claims against NYCBS, allowing only claims of gross negligence to proceed against it. The waiver does not apply to the City, however, because such a release of the City’s duty would be contrary to public policy; accordingly, Corwin may proceed with his common-law negligence claims against the City. The Court need not decide if the APD is a “Released Person” under the Agreement, as it grants summary judgment to APD on all claims in Part VIII of this opinion on other grounds.
III. Affirmative Defenses Based on Corwin’s Failure to Wear [**52] a Helmet
Defendants have set out various affirmative defenses–including comparative negligence, primary assumption of the risk, and failure to mitigate damages–premised on the uncontested fact that Corwin was not wearing a bicycle helmet at the time of the crash. Corwin moves for partial summary judgment on all of these defenses, arguing that there was no statutory obligation that he do so, that the City and NYCBS themselves represented that wearing a helmet was unnecessary, and that New York Vehicle and Traffic Law (“VTL”) § 1238(7) and case law in New York and other jurisdictions expressly prohibits such conduct from being considered for the purposes of liability or damages.
As a preliminary matter, Corwin argues that defendants have failed to produce sufficient evidence to raise a factual question as to whether there was an unreasonable risk of a head injury while riding a Citi Bike without a helmet. Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party . . . .” Chambers, 43 F.3d at 37. There are disputed questions of material fact in this case as to both (a) whether a reasonably prudent person in Corwin’s [**53] circumstances would have worn a helmet and (b) whether wearing such a helmet would have mitigated the damages Corwin suffered. See, e.g., ECF No. 344, Decl. of Elizabeth McCalley (arguing that Corwin would not have sustained many of his severe injuries had he worn a helmet).
There is no dispute that Corwin was not obligated to wear a helmet while riding a Citi Bike or any other bicycle; unlike the seatbelt requirements of N.Y. VTL § 1229-c, there is no statutory obligation for an adult bicyclist to wear a helmet while riding a bike on a public road. N.Y. VTL § 1238(5) does require children under the age of fourteen to do so, but imposes no affirmative obligations on individuals over that age. A subsection of the same statute also indicates that “the failure of any person to comply with the provisions of this section shall not constitute contributory negligence or assumption of risk, and shall not in any way bar, preclude or foreclose an action for personal injury or wrongful death by or on behalf of such person, nor in any way diminish or reduce the damages recoverable in any such action.” VTL § 1238(7); see also Lamica v. Precore, 273 A.D.2d 647, 647-48, 709 N.Y.S.2d 694 (3d Dep’t 2000) (in accident involving helmetless child on bicycle, dismissing defendants’ counterclaim that parents were negligent [**54] for failing to ensure child wore helmet). Therefore, Corwin argues, if New York has seen fit to preclude expressly the consideration of helmet evidence for either liability or damages purposes even when wearing a helmet is mandated [*500] by law, surely the failure to wear a helmet by someone not obligated to do so by law should be similarly inadmissible.
The fact that New York has categorically barred the consideration of such evidence in a statute aimed at the protection of children does not, however, imply that the state has a general public policy against the admission of such evidence for all bicycle riders. Indeed, though Corwin argues that it would be “anomalous and irrational” to admit helmet evidence for an older rider under no legal obligation to wear a helmet, there is a clear and obvious rationale for the limited reach of the statute: a desire to prevent families from being burdened with costs stemming from accidents occurring on account of their young children’s inability to perceive risks, and a determination that parents should not be found negligent for failing to ensure that their children wear helmets. No court has interpreted VTL § 1238(7) to stand for a general public policy that the [**55] failure to wear a helmet is inadmissible for purposes of measuring comparative negligence or mitigation of damages, and the Court declines to do so today.
While the New York Court of Appeals has not spoken authoritatively on the specific question of whether the non-use of a bicycle helmet is admissible under such circumstances, the framework that it adopted regarding the non-use of seat belts in automobiles is instructive. At a time when no law mandated that occupants of a passenger car wore seat belts, the court explicitly rejected the failure to wear a seat belt as a basis for contributory negligence8 or primary assumption of the risk, but concluded that:
nonuse of an available seat belt . . . is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. However . . . the plaintiff’s nonuse of an available seat belt should be strictly limited to the jury’s determination of the plaintiff’s damages and should not be considered by the triers of fact in resolving the issue of liability. [**56]
Spier v. Barker, 35 N.Y.2d 444, 449-50, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974).
8 Though the Spier decision was rendered before New York’s adoption of the comparative fault system and therefore discussed only if a plaintiff would be wholly barred from recovery under the then-existing doctrine of contributory negligence, New York courts have consistently considered seat belt evidence exclusively for purposes of mitigation of damages, and not for the apportionment of comparative fault. See, e.g., Stein v. Penatello, 185 A.D.2d 976, 976-77, 587 N.Y.S.2d 37 (2d Dep’t 1992).
Therefore, in cases involving the failure to wear a seat belt, New York law imposes a pre-accident obligation to mitigate damages, and the burden of proving that the injured party failed to do so rests upon the defendant. Davis v. Davis, 49 A.D.2d 1024, 1024, 374 N.Y.S.2d 482 (4th Dep’t 1975). Lower New York courts have applied the same principles to other types of protective gear as well. See, e.g., Penzell v. State, 120 Misc. 2d 600, 466 N.Y.S.2d 562, 567 (Ct. Cl. 1983) (motorcycle helmets); Giannetti v. Darling Del. Carting Co., 175 Misc. 2d 1, 666 N.Y.S.2d 372, 374-76 (Sup. Ct. Suffolk Cnty. 1997) (safety gloves in fast food restaurant). And, indeed, in the state court proceedings parallel to this case, the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how [*501] damages, if any, should be assessed.” Corwin v. City of New York, 141 A.D.3d 484, 490, 36 N.Y.S.3d 118 (1st Dep’t 2016) (citation omitted).9
9 State courts in other jurisdictions have also drawn analogies between seat belt and helmet use. See, e.g., Stehlik v. Rhoads, 2002 WI 73, 253 Wis. 2d 477, 645 N.W.2d 889 (Wis. 2002) (same principles govern seat belt and helmet defenses for ATV rider); Meyer v. City of Des Moines, 475 N.W.2d 181, 186 (Iowa 1991) (same for moped rider); Warfel v. Cheney, 157 Ariz. 424, 758 P.2d 1326 (Ariz. App. 1988) (same for motorcyclist).
To be sure, some courts across the country have reached contrary conclusions.10 See, e.g., Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 647-48 (D.N.J. 1997) (noting that nothing in federal or state law alerts adult cyclists that their rights may be prejudiced by failure to wear a helmet, finding fewer safety concerns with helmetless biking and rejecting analogy to seat belt laws); Walden v. State, 250 Mont. 132, 818 P.2d 1190, 1196-97 (Mont. 1991) (holding same in state where evidence [**57] of seat belt use is inadmissible for mitigation of damages purposes). The decision in Corwin, however, and the logic of Spier and the New York cases extending it beyond the seat belt domain, compel denial of Corwin’s motion for summary judgment as it pertains to the affirmative defenses relating to mitigation of damages.
10 Corwin relies on Phelan v. State of New York, 11 Misc. 3d 151, 804 N.Y.S.2d 886 (N.Y. Ct. Cl. 2005), where the New York Court of Claims declined to consider a bicyclist’s non-use of a helmet in mitigation of damages. The case, however, is distinguishable as “no persuasive testimony, medical or otherwise, was proffered to establish that [plaintiff’s] injuries would have been either avoided or reduced had she worn a helmet.” Id. at 167. Therefore, the defendant failed to make even a prima facie case that damages should be mitigated by the decedent’s failure to wear a helmet. To the extent that Phelan also based the decision on the fact the “[d]ecedent was not required to wear a helmet [by law],” this is inconsistent with the Appellate Division’s decision in Corwin, 141 A.D.3d 484, 36 N.Y.S.3d 118, and the logic of Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916.
Nevertheless, even as Spier and its progeny indicate that Corwin’s non-use of a helmet will be admissible for the purposes of calculating damages, the cases also hold that such evidence is inadmissible on questions of liability. Therefore, defendants shall not be permitted to argue that Corwin was comparatively negligent for failing to wear a helmet.11 For the same reason and for the reasons expressed in Part VI of this Opinion, defendants will also not be permitted to argue that Corwin’s claims are barred by the doctrine of primary assumption of risk. See also Cotty, 64 A.D.3d at 256 (2d Dep’t 2009) (“[R]iding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine.”).
11 Of course, defendants may still argue at trial that Corwin was comparatively negligent for other reasons, including, inter alia, the speed, manner, and location of where he was riding his bicycle.
Accordingly, Corwin’s motion for summary judgment is DENIED as to the City’s Seventh and Ninth affirmative defenses (ECF. No. 200), NYCBS’s Sixth affirmative [**58] defense (ECF No. 199), and Metro Express’s Sixth affirmative defense (ECF No. 213) concerning the relevance of his non-use of a helmet to mitigation of damages, and GRANTED as the City’s Second and Eighth affirmative defenses, NYCBS’s First and Seventh affirmative defenses and Metro Express’s Second and Seventh affirmative defenses, inasmuch as those defenses assert the relevance of his non-use of a helmet to comparative negligence and assumption of the risk. Sealcoat [*502] did not explicitly reference Corwin’s failure to use a helmet as an affirmative defense, (ECF No. 211) and in Part VIII, the Court grants summary judgment to APD and APDNY, thus rendering the question of summary judgment on their First affirmative defense moot.
IV. Qualified Immunity
A. City’s Qualified Immunity for Bike Station Design and Wheel Stop Placement
The City of New York moves for summary judgment on the grounds that its involvement in the design and planning of the Citi Bike program is a uniquely governmental function for which it is entitled to qualified immunity as a matter of law. See Valdez v. City of New York, 18 N.Y.3d 69, 76, 960 N.E.2d 356, 936 N.Y.S.2d 587 (2011) (“Even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental [**59] function can avoid liability if it . . . proves that the alleged negligent act or omission involved the exercise of discretionary authority.”).
“When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose.” Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 995 N.E.2d 131, 972 N.Y.S.2d 169 (2013). A municipality engages in governmental functions when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers,” and in proprietary functions when “its activities essentially substitute for or supplement traditionally private enterprises.” Id. (citations omitted). If a municipality acts in a governmental capacity, the plaintiff must prove that he was owed a special duty, and that the exercise of governmental authority was not discretionary. Turturro v. City of New York, 28 N.Y.3d 469, 478-79, 45 N.Y.S.3d 874, 68 N.E.3d 693 (2016).
Traffic planning decisions, including decisions about the design of roads and other facilities, are proprietary functions, arising from a municipality’s “proprietary duty to keep its roads and highways in a reasonably safe condition.” Wittorf, 23 N.Y.3d at 480. This duty, while “nondelegable . . . is measured by the courts with consideration given [**60] to the proper limits on intrusion into the municipality’s planning and decision-making functions.” Friedman, 67 N.Y.2d at 283 (internal quotation marks and citations omitted). As such, “in the specific proprietary field of roadway safety, a municipality is afforded ‘a qualified immunity from liability arising out of a highway planning decision'” under certain circumstances. Turturro, 28 N.Y.3d at 479-80 (quoting Friedman, 67 N.Y.2d at 283)).
Such immunity arises only when the defendant can “demonstrate that a public planning body considered and passed upon the same question of risk as would go to a jury in the case at issue.” Jackson v. N.Y. City Transit Auth., 30 A.D.3d 289, 290-91, 818 N.Y.S.2d 32 (1st Dep’t 2006) (finding general evaluation of buses referencing passengers’ ability to grab onto overhead racks insufficient to grant qualified immunity on claim that transit authority should have installed grab bars and handholds); Leon v. N.Y. City Transit Auth., 96 A.D.3d 554, 554-55, 947 N.Y.S.2d 33 (1st Dep’t 2012) (denying qualified immunity for passenger injured by falling in gap between train car and platform when City had only studied the risk that train would scrape platform); see [*503] also Turturro, 28 N.Y.3d at 483 (no qualified immunity for City’s failure to study speeding traffic on avenue); Poveromo v. Town of Cortlandt, 127 A.D.3d 835, 837, 6 N.Y.S.3d 617 (2d Dep’t 2015) (no qualified immunity for municipality’s failure to install certain traffic devices at an intersection absent a study); Kuhland v. City of New York, 81 A.D.3d 786, 787, 916 N.Y.S.2d 637 (2d Dep’t 2011) (no qualified immunity for design of traffic [**61] intersection in absence of any pedestrian traffic studies); cf. Levi v. Kratovac, 35 A.D.3d 548, 549, 827 N.Y.S.2d 196 (2d Dep’t 2006) (qualified immunity granted for design of traffic intersection pursuant to a pedestrian safety study and reasonable traffic plan).
In light of these principles, the key question is whether the City’s planning of the Citi Bike program “passed upon the same question of risk” that this case presents–namely, that the placement of unpainted concrete wheel stops within Citi Bike stations could pose a tripping danger to cyclists. The City describes a collaborative process between it and APD based on its experiences with “bike corrals” that employed similar features, including wheel stops. ECF No. 293, City St. ¶¶ 40-42, 50. The City indicates that it viewed wheel stops as “the most important safety feature that was also installed in 2011.” Id. ¶ 46. Accordingly, the result of its collaboration with APD was a set of guidelines including the use of “non-permanent bollards, wheel stops, and paint markings.” Id. ¶ 55; ECF No. 289-19, 04/23/12 Station Siting Guidelines at 11. The City notes that APD and APDNY considered a wheel stop to be a necessary feature to protect the bike station from vehicles encroaching on the station and [**62] damaging the equipment or injuring individuals who may be within the station. City St. ¶ 58; ECF No. 289-3, Adrian Witte 08/14/15 Depo. at 20-21; ECF No. 289-5, Jeff Olson 09/29/15 Depo. at 410-11. The City did not, however, approve of the use of wheel stops that extend outside of the parking lane and into the travel lane. City St. ¶ 66; ECF No. 291, Sameer Barkho Decl. ¶ 10. The City determined that a yellow and black object marker, which had been included in the original design of some bike corrals, was “optional” because the on-street bike parking station sat in a parking lane and not a travel lane, and “pavement markings were more than sufficient to signal to an approaching motorist or bicyclist the presence of the on-street bike parking station and the presence of the wheel stop in the parking lane.” Id. ¶ 11. On the contrary, wheel stops would be situated within a white painted rectangular box with “white paint markings forming diagonal lines within the rectangular box.” Id. at ¶ 12.
The record plainly indicates that the decision to install concrete wheel stops in Citi Bike stations was the product of careful consideration and deliberation between the City and APD’s design and [**63] engineering experts. This mere fact, however, does not suffice for the City to be entitled to qualified immunity as a matter of law. Corwin does not merely seek to have the fact finder “examine the criteria that were considered by the State’s professional staff, emphasize factors allegedly overlooked, and, with the benefit of hindsight, rule that the studies were inadequate as a matter of law.” Friedman, 67 N.Y.2d at 285-86. Rather, he argues that though the City considered the need and efficacy of wheel stop placement to prevent cars from encroaching into the stations and harming individuals or property, it conducted no studies whatsoever as to whether such wheel stops could constitute tripping hazards for cyclists passing through such stations.
[*504] Though it is a close question, because the City has obviously given the coloring, placement, and demarcation of wheel stops some thought, the Court finds that there is a genuine dispute of material fact as to whether the City studied or “passed upon the same question of risk” presented in this case. While there is extensive testimony in the record that the City believed that wheel stops were of great importance in protecting stations from automobiles, the City has presented [**64] no specific study that suggests that it considered the effect of wheel stop placement or design on the safety of pedestrians or cyclists passing through the station, or whether the City considered that the wheel stops might be in the foreseeable paths of cyclists who, by custom or necessity, pass through the Citi Bike station footprints. In particular, it is not clear on what basis the City decided that object markers were to be made “optional,” or if the City considered the adequacy of shorter wheel stops that would extend no further into the parking lane than the bikes themselves. Therefore, as a reasonable fact-finder could find that the City did not study or pass on the “same question of risk,” the City is not entitled to qualified immunity as a matter of law on the specific question of wheel stop placement. At trial, the jury will be asked special interrogatories to resolve these disputed facts.
B. City’s Qualified Immunity for Failure to Provide Bicycle Helmets to Citi Bike Users
The City also moves for summary judgment on the basis of qualified immunity on Corwin’s claims that “the intentional failure and refusal of the Defendants to design Citi Bike to include a convenient system [**65] of helmet rentals–as in place in Melbourne, Vancouver and Seattle–or otherwise provide helmets at all Citi Bike sites, was negligent . . . .” ECF No. 192, Second Am. Compl. ¶ 352.
The record plainly demonstrates that the City’s decision not to mandate or provide helmets to Citi Bike users was the fruit of a well-reasoned policy based on extensive study of the “same question of risk as would go to a jury in the case at issue.” Jackson, 30 A.D.3d at 290. As early as 2009, the City’s Feasibility Study noted that “increasing the number of bicyclists is one of the most reliable ways to increase bicyclist safety,” and cast doubt on the feasibility of helmet distribution. City St. ¶ 4; ECF No. 290-1, Bike Share Feasibility Study. The director of the City’s Bike Share Unit stated that the City found that “mandatory helmet laws decreased bicycle ridership in general and decreased participation in bike share programs in particular. [The City] considered statistics showing that mandatory helmets laws actually decreased the safety of bicycling . . . [and] bicycle riders wearing helmets tend to ride more recklessly than riders who do not.” ECF No. 290, John Frost Decl. ¶ 5. The City specifically noted that in Melbourne, [**66] Australia, mandatory helmet laws resulted in a lowered rate of bicycle usage. City St. ¶ 13; ECF No. 289-2, Kate Fillin-Yeh 08/20/15 Depo. at 46-48. The City also specifically considered installing automatic helmet rental machines and rejected the proposal on hygiene and structural integrity grounds in public comments justifying the policy choice. ECF No. 290, John Frost Decl. ¶ 6; ECF No. 289-1, Stephanie Levinsky-Shaw 08/12/15 Depo. at 222. Nevertheless, the City encouraged bicycle helmet use by distributing discount voucher coupons for the purchase of helmets to annual members and expanding helmet fitting and giveaway programs. ECF No. 290, Frost Decl. ¶ 7; ECF No. 289-2, Fillin-Yeh Depo. at 56, 60.
[*505] Contrary to Corwin’s contentions, the fact that Defendants may raise the issue of his non-use of a helmet to prove a failure to mitigate damages does not affect the City’s qualified immunity on this issue. Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.” [**67] Corwin, 141 A.D.3d at 495 (Andrias, J., dissenting). He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. See Weiss v. Fote, 7 N.Y.2d 579, 588, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960) (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.
V. New York City Administrative Code § 7-201
New York City Administrative Code § 7-201(c)(2) provides that:
No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street . . . being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation . . . or where there was previous injury to person or property as a result of the . . . condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the . . . condition, and there was a failure or neglect [**68] within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.
Popularly known as the “Pothole Law,” the purpose of § 7-201(c)(2) is to prevent municipal liability for “nonfeasance” and to limit it to cases where the municipality had actual notice and opportunity to correct the hazardous condition. Katz v. City of New York, 87 N.Y.2d 241, 243, 661 N.E.2d 1374, 638 N.Y.S.2d 593 (1995). It is uncontested that the City did not have written notice of the installation of the specific wheel stop at the Madison Avenue end of the Citi Bike station where the crash occurred until after the accident, and that the drawing accompanying the permit does not show a wheel stop at that location. City St. ¶¶ 107-12. City records do not demonstrate any written complaints or claims of injury regarding a wheel stop at that location. Id. at ¶¶ 111-13.
There are, however, two exceptions to § 7-201(c)(2)–“that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.” Yarborough v. City of New York, 10 N.Y.3d 726, 728, 882 N.E.2d 873, 853 N.Y.S.2d 261 (2008) (citation omitted).
Corwin does not merely allege that the City failed to remediate a dangerous condition created by a third party; indeed, his entire theory of liability [**69] is predicated on the premise that the City was affirmatively negligent in the design and placement of Citi Bike stations and wheel stops in the system as a whole. Additionally, he argues that the City was on notice of contractors’ failures to install stations as per plan specifications and yet failed to monitor them effectively, and ultimately approved an [*506] identical policy of putting wheel stops on both ends of Citi Bike stations. ECF No. 335-33, NYC Comptroller Audit; ECF No. 336-25, Station Plan w/ 2 Wheel Stops. The City, for its part, notes that neither it nor NYCBS, with whom it had a contractual relationship, actually installed the wheel stop at issue; rather, it alleges that it was installed by Sealcoat, a contractor of MetroExpress, who itself was NYCBS’s contractor. City St. ¶¶ 83-84.
The Court finds that there is a genuine dispute of material fact as to whether the City was affirmatively negligent so as to lose the written notice protections of § 7-201(c)(2). While Corwin cannot produce “smoking gun” evidence that the City affirmatively directed NYCBS or its agents to install the specific wheel stop in question, Corwin does provide evidence indicating that similar wheel stops were installed [**70] elsewhere in the City and that modifications to station plan installations were often done informally. See ECF No. 368-6 (10/30/2013 email from Dani Simons, NYCBS, to Stephanie Levitsky, DOT, stating “I do not know why [the wheel stop is] not in the drawings. I do know that [NYCBS directors] Hasib [Ikramullah] and Michael [Pellegrino] have both told me that we’ve started putting them on the cross-walk side of stations in high traffic areas . . . .”); ECF No. 336-19 (07/01/2013 email from Stephanie Levinsky to Jon Orcutt referencing “numerous on the fly modification[s]”); ECF No. 368-8 (May 15, 2013 email from DOT to NYCBS referencing “supplemental street treatments” not on the initial plan diagrams).
This evidence could lead a reasonable finder of fact to conclude that either the specific wheel stop in question, or all wheel stops that enter into the foreseeable pathway of a cyclist, were installed pursuant to affirmative acts of negligence by the City. The fact that the City had no direct contractual relationship or knowledge of the involvement of Metro Express or Sealcoat is not dispositive. Just as the City cannot delegate its duty to maintain the roads to a contractor, it cannot do so to a subcontractor [**71] of that contractor.
Accordingly, the question of whether the affirmative negligence exception to the written notice protections of § 7-201(c)(2) applies is a disputed question of fact to be resolved at trial, and the City is not entitled to summary judgment because it was not provided notice of the allegedly defective condition.12
12 Because the Court finds that the “affirmative negligence” exception may apply and because neither party has adequately briefed the “special use resulting in a special benefit” exception to § 7-201(c)(2), the Court declines to address the “special use” exception in this opinion.
VI. Primary Assumption of the Risk
The City, NYCBS, and APD also move for summary judgment on the grounds that the doctrine of primary assumption of the risk bars Corwin’s negligence claims. In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.” Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986). In this case, the Release Agreement signed by Corwin contained explicit provisions on assumption of the risk, which state, inter alia, that “Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or [*507] avoided. Member agrees that such risks, dangers, [**72] and hazards are Member’s sole responsibility.” ECF No. 316-1, Release Agreement. Whether or not the broad assumption of the risk language is applicable depends on what courts consider to be the risks inherent in bicycling, recreational or otherwise, on a paved road in an urban environment.
The New York Court of Appeals has cautioned that the doctrine of assumption of risk is justifiable exclusively for its utility in “‘facilitat[ing] free and vigorous participation in athletic activities'” and warned that the doctrine must be “closely circumscribed” and not “applied outside this limited context” lest it unduly displace the state’s comparative negligence regime. Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127 (2010) (citing Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29 (1989)).13 Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred.” Cotty, 64 A.D.3d at 255. Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational [**73] or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.” Id.; see also Moore v. City of New York, 29 A.D.3d 751, 752, 816 N.Y.S.2d 131 (2d Dep’t 2006) (plaintiff did not assume risk of recreational cycling on paved park road); Vestal v. Cty. of Suffolk, 7 A.D.3d 613, 614-15, 776 N.Y.S.2d 491 (2d Dep’t 2004) (“[T]he injured plaintiff cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because she participated in the activity of bicycling,” even where County argued that the pathway was “abandoned”).
13 In its reply memorandum of law, NYCBS appears to characterize Trupia as permitting an open-ended “social benefit” analysis to determine whether the assumption of risk doctrine applies and discusses the numerous beneficial aspects of the Citi Bike program as a public transit system. Trupia, however, was limited to discussing the social benefit to certain risky athletic activities and explicitly warns against applying the doctrine in any other context. 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127.
To be sure, courts have held that the doctrine of assumption of the risk applied in other contexts involving recreational cyclists. See, e.g., DeJesus v. City of New York, 29 A.D.3d 401, 402, 815 N.Y.S.2d 502 (1st Dep’t 2006) (plaintiff assumed risk for riding on pedestrian-only pathway in housing development); Chrem v. City of New York, 293 A.D.2d 301, 302, 741 N.Y.S.2d 201 (1st Dep’t 2002) (plaintiff assumed risk of steep drop-off in the back of a dirt mound not designated for cycling); Furgang v. Club Med, Inc., 299 A.D.2d 162, 162, 753 N.Y.S.2d 359 (1st Dep’t 2002) (“[T]he risk of encountering ruts and bumps while riding a bike over a rough roadway without a helmet is so obvious [that] as a matter of law, plaintiff assumed any risk inherent in the activity . . . .”); Goldberg v. Town of Hempstead, 289 A.D.2d 198, 198, 733 N.Y.S.2d 691 (2d Dep’t 2001) (“Since the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces, [**74] and the defective condition in this case was open and obvious, the infant plaintiff assumed [*508] the risk associated with riding her bicycle on the ballfield.”) (citations omitted); Calise v. City of New York, 239 A.D.2d 378, 379, 657 N.Y.S.2d 430 (2d Dep’t 1997) (plaintiff assumed the risk of hitting an exposed tree root on unpaved path in public park). These cases, however, are readily distinguishable because they all involved individuals riding a bicycle on an unpaved path or other area plainly not designated for cycling. While defendants contend that the Citi Bike station was such an “undesignated” area, the station was obviously integrated into the public roadway, and Corwin has at the very least raised a genuine dispute of material fact as to whether the design of this station compelled or encouraged him to ride through it to avoid riding dangerously close to traffic. Therefore, his brief passage through the parking lane and bike station cannot be analogized to a considered decision to engage in recreational mountain biking or to ride down an undesignated pedestrian walkway.
Accordingly, the doctrine of primary assumption of the risk is unavailable, and defendants are not entitled to summary judgment on this theory.
VII. “Open and Obvious”
A defendant has “no duty [**75] to protect or warn against an open and obvious condition which is not inherently dangerous.” Stern v. River Manor Care Ctr., Inc., 106 A.D.3d 990, 990, 965 N.Y.S.2d 377 (2d Dep’t 2013). Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Russo v. Home Goods, Inc., 119 A.D.3d 924, 925-26, 990 N.Y.S.2d 95 (2d Dep’t 2014). Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion . . . .” Tagle v. Jakob, 97 N.Y.2d 165, 169, 763 N.E.2d 107, 737 N.Y.S.2d 331 (2001). Defendants contend that Corwin’s claims fail as a matter of law because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.”
Defendants’ claims are buttressed by cases holding that wheel stops located in parking lots or similar environments were sufficiently “open and obvious” so as to bar claims by injured pedestrians. See, e.g., May v. Ruby Tuesday, Inc., No. 13-CV-170 (FJS)(ATB), 2014 U.S. Dist. LEXIS 140090, 2014 WL 4966544, at *5-6 (N.D.N.Y. Oct. 2, 2014) (parking lot wheel stop open and obvious especially given plaintiff’s admission that she had previously seen it); Abraido v. 2001 Marcus Ave, LLC, 126 A.D.3d 571, 571-72, 4 N.Y.S.3d 43 (1st Dep’t 2015) (wheel stop in well-lit parking lot open and obvious); Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 868, 978 N.Y.S.2d 73 (2d Dep’t 2013) (parking lot wheel stop open and obvious when plaintiff admitted she was attempting to step over it); Wachspress v. Cent. Parking Sys. of New York, Inc., 111 A.D.3d 499, 499-500, 974 N.Y.S.2d 439 (1st Dep’t 2013) (parking [**76] lot wheel stop open and obvious); Zimkind v. Costco Wholesale Corp., 12 A.D.3d 593, 593-94, 785 N.Y.S.2d 108 (2d Dep’t 2004) (same).
Whether or not a potential hazard is readily visible to the naked eye is evidently an important consideration in determining whether it is open and obvious, but it does not definitively resolve the question because “[t]he nature or location of some hazards, while they are technically visible, make them likely to be overlooked.” Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38 (1st Dep’t 2004). On at least two occasions, New York courts, considering the broader context of plaintiffs’ encounter with wheel stops, declined [*509] to find that they were “open and obvious.” In Rivera v. Queens Ballpark Co., LLC, 134 A.D.3d 796, 797-98, 22 N.Y.S.3d 106 (2d Dep’t 2015), the court found that a concrete wheel stop that began in a designated parking space but partially extended into and obstructed a pedestrian walkway was not “open and obvious” as a matter of law. Similarly, in O’Leary v. Saugerties Cent. Sch. Dist., 277 A.D.2d 662, 662, 716 N.Y.S.2d 424 (3d Dep’t 2000), a plaintiff who tripped over a concrete parking lot wheel stop raised a triable issue of fact by arguing that it was undetectable and camouflaged by cars parked bumper-to-bumper.
Were the Court to view the wheel stop, cross-hatching, and delineators in isolation, it would be hard-pressed to distinguish them from the conspicuous parking lot wheel stops that New York courts have found to be “open and obvious” as a matter of law. Notwithstanding [**77] Corwin’s argument that the wheel stop was “camouflaged” because it was not painted in a bright color that would contrast it with its surroundings, photographic evidence submitted by both Corwin and defendants suggests to the Court that it would have been readily visible to an observant pedestrian. Nevertheless, the types of obstacles that a pedestrian might expect to encounter in a parking lot are substantially different from those that a cyclist would expect in an on-street bike station. Therefore, the Court finds that Corwin has raised a genuine issue of material fact as to whether the wheel stop was open and obvious to an attentive person in his position–that is, a cyclist traveling within a station that arguably invited use as a bike lane.
The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” ECF No. 335, Green Decl. ¶ 56. An [**78] hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Id. ¶¶ 35, 57. Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. Id. ¶ 46. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.” Id. ¶¶ 48-49.
In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott, 550 U.S. at 378. Drawing all inferences in his favor, Corwin has distinguished the cases that feature garden-variety wheel stops in parking lots. Similar to the scenario in Rivera, 134 A.D.3d at 797, where the court did not find that a wheel stop was open and obvious as a matter of law when it partially obstructed a pedestrian walkway, there is a genuine dispute of material [**79] fact as to whether the wheel stop hazardously obstructed a path that was foreseeably and actually utilized by cyclists.
Accordingly, defendants are not entitled to summary judgment on the grounds that the wheel stop that caused Corwin’s accident was “open and obvious.”
[*510] VIII. Claims against Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC
Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC (collectively, “APD”), the architects and designers for the Citi Bike project who collaborated with the City to generate site plans for stations, move for summary judgment on Corwin’s claims of common law, gross, and professional negligence. APD notes that the key elements of the station that Corwin alleges caused his crash–primarily, the installation of the additional wheel stop at the east end of the station and the increased width of the station footprint–were installed in violation of its approved design. Corwin alleges that, even if APD did not recommend the installation of the specific wheel stop, their recommendation of unpainted concrete wheel stops throughout the Citi Bike system, and wheel stops’ placement within the [**80] foreseeable path of cyclists passing through stations were substantial factors in his accident. The Court need not resolve this dispute, however, because it finds that, regardless of the propriety of its recommendations to the City, APD did not owe a duty of care to Corwin under Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002).
It is uncontested that, as an architecture firm, APD did not have any contractual obligations to install, inspect, or maintain Citi Bike stations and, therefore, could not be liable to Corwin under any theory dependent on its control of Citi Bike stations or wheel stops. See Gibbs v. Port Auth. of New York, 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 (1st Dep’t 2005) (“Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises . . . .”). It is similarly clear that APD had no direct contractual obligation to Corwin. Therefore, any duty to Corwin would necessarily flow out of APD’s contractual obligation to Alta Bicycle Share/NYCBS. “In the ordinary case, a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries.” Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 556 N.E.2d 1093, 557 N.Y.S.2d 286 (1990); see also H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 (1928) (Cardozo, J.) (noting that a contrary holding would imply that a contracting party would be forced into “the involuntary assumption [**81] of a series of new relations, inescapably hooked together”).
In Espinal, the New York Court of Appeals, synthesizing decades of case law, announced three exceptions to the general principle that contracting parties do not owe a duty of care to third persons. These exceptions are:
(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ (Moch, 247 N.Y. at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties (see Eaves Brooks, 76 N.Y.2d at 226) and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely (see Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 589, 634 N.E.2d 189, 611 N.Y.S.2d 817 (1994)).
Espinal, 98 N.Y.2d at 140.
Corwin could not have relied on APD’s continuing performance under its contract with Alta Bicycle Share/NYCBS because [*511] APD had no such obligations except submitting site plans, and it had no effect on the duty of the other defendants to maintain the bike stations safely. Therefore, the only Espinal exception that arguably applies is that APD “launched a force or instrument of harm” with its allegedly negligent site plans and recommendations for wheel stop placements. This standard is met where “the promisor, while engaged affirmatively in [**82] discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk.” Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 111, 782 N.E.2d 50, 752 N.Y.S.2d 254 (2002); see also Guzman v. Wackenhut Corp., 394 F. App’x 801, 803 (2d Cir. 2010) (summary order).
On these facts, accepting the argument that providing allegedly negligent design advice and site plans is sufficient to “launch a force or instrument of harm” would lead to the very limitless expansion of tort liability that New York law seeks to prevent. Moch Co., 247 N.Y. at 165 (Cardozo, J.) (“An intention to assume an obligation of indefinite extension to every member of the public is seen to be the more improbable when we recall the crushing burden that the obligation would impose.”). Indeed, Corwin’s argument is that APD’s negligence consists not of specific malfeasance relating to the design of the Citi Bike station where his accident occurred,14 but its general negligence in approving the type, appearance, and placement of wheel stops throughout the Citi Bike system. The logical conclusion of this argument is that by providing services to Alta Bicycle Share/NYCBS, APD would be subjecting itself to potential tort liability to literally millions of potential plaintiffs who could be involved in an accident involving wheel stops in any one of hundreds of Citi Bike stations–even as [**83] it had no responsibility for the maintenance or installation of the allegedly hazardous obstructions.15 This is not the law as summarized in Espinal.
14 Indeed, as APD argues, the Citi Bike station at issue in this case did not conform to its plan at all. See ECF No. 321-30, APD Expert Report. Corwin’s own expert would seem to agree. In a rebuttal report, James M. Green contended that “the original Engineering design [presented by APD] was proper in minimizing the clearance behind the parked bicycles and leaving out a wheel stop at the [relevant] intersection and was not followed during the construction of the bike station.” ECF No. 321-24, Green 01/06/16 Rebuttal Report at 9.
15 Corwin’s evidence that APD actually had some responsibility for the installation of Citi Bike stations, which appears to consist of a single May 22, 2013 email from APD engineer Adrian Witte referring the installation of station “bridging” (ECF No. 336-28), and deposition testimony references to the “collaborative” process between APD, NYCBS, and the City (ECF No. 335-6. Jeff Olson 08/26/15 Depo. at ¶¶ 401-02, 484, 530), is insufficient to raise a genuine dispute of material fact about APD’s lack of responsibility over Citi Bike stations.
Finally, Corwin argues that APD was an alter ego of Alta Bicycle Share/NYCBS because APD served as the parent company over Alta Bicycle Share before its sale in 2014. ECF No. 192, Second Am. Compl. ¶ 16. “It is well-settled that the party seeking to pierce the corporate veil has the burden of establishing that there is a basis to do so.” Maggio v. Becca Constr. Co., 229 A.D.2d 426, 427, 644 N.Y.S.2d 802 (2d Dep’t 1996) (citations omitted). Notwithstanding the close relationship between APD and Alta Bicycle Share/NYCBS, and their former association, Corwin has failed to establish that APD is anything but a legitimate and separate business entity engaging in planning and design. “Those seeking to pierce a corporate veil of course bear a heavy burden of showing that the corporation was dominated as to the transaction [*512] attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences. . . . An inference of abuse does not arise . . . where a corporation was formed for legal purposes or is engaged in legitimate business.” TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339-40, 703 N.E.2d 749, 680 N.Y.S.2d 891 (1998); see also Joseph Kali Corp. v. A. Goldner, Inc., 49 A.D.3d 397, 398-99, 859 N.Y.S.2d 1 (1st Dep’t 2008) (refusing to pierce corporate veil [**84] between two entities operated by same principal). On the record before it, the Court sees no conceivable equitable reason to disregard the corporate form in this case.
As the Court concludes that APD did not owe any duty to Corwin under Espinal, it need not consider APD’s alternate arguments regarding proximate causation and its defense that Corwin’s claim arose out of a deviation from its design. The Court GRANTS APD’s motion for summary judgment in its entirety.
IX. Claims against Metro Express Services, Inc. and Sealcoat USA, Inc.
Defendants Metro Express Services, Inc. and Sealcoat USA, Inc. (“Metro Express” and “Sealcoat,” respectively), third-party contractors who are alleged to have installed or sub-contracted the installation of the specific wheel stop that caused Corwin’s injuries, move for summary judgment, arguing that they did not owe Corwin a duty of care under Espinal, 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), and that the wheel stop is an open and obvious condition as a matter of law. Having already rejected the “open and obvious” argument in Part VII of this opinion, the Court considers whether Metro Express and Sealcoat had a duty to Corwin under one of the three Espinal exceptions discussed in Part VIII.
As was true [**85] for APD, there is no argument that Corwin “detrimentally relie[d] on the continued performance of the contracting party’s duties” or that Metro Express or Sealcoat “entirely displaced the other party’s duty to maintain the premises safely.” Id. at 140. Detrimental reliance becomes a consideration only when there is some form of continued contractual performance by the third-party contractor and is not relevant when the alleged negligent conduct concerns a one-time installation of station equipment (even if the contractor may have installed said equipment in many stations). And there is no evidence in the record that Metro Express or Sealcoat assumed any responsibilities, much less exclusive responsibilities, for the maintenance and safety of Citi Bike facilities.
Therefore, the only issue is whether there is a genuine dispute of material fact that Metro Express or Sealcoat “launch[ed] a force or instrument of harm.” Corwin contends that the wheel stop on the east side of the Citi Bike station was an “instrument of harm,” and a contractor negligently responsible for its installation could be found liable under Espinal. To be sure, “[a] builder or contractor is justified in relying upon the plans and specifications [**86] which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury.” Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46, 145 N.E. 321 (1924). There are, however, genuine disputes of material fact as to whether the contractors installed the wheel stop in question and whether they did so pursuant to a plan provided them by NYCBS.
Citing ambiguities in emails received from NYCBS, Metro Express contends that a full installation of street treatments [*513] was never ordered for the Citi Bike station at issue, and in fact NYCBS only ordered Metro Express and Sealcoat to carry out repairs. ECF No. 366, Metro Express Reply Mem. at 3-4. Metro Express further notes that Sealcoat reported that there was nothing wrong with the station and never invoiced or received payment for any work. Id. at 5. Finally, it contends that Metro Express was never provided with a plan for the Station, and that NYCBS had been instructing Metro Express to install “supplemental street treatments” not depicted on the station plans, noting two specific instances in which they were ordered to do so in stations at Jay Street and Tech Place, and Charles Street and Greenwich [**87] Ave. Id. at 7-9.
While Metro Express and Sealcoat certainly raise issues of fact about their liability, there is sufficient information in the record to preclude a finding that they are entitled to judgment as a matter of law. For example, in addition to NYCBS’s allegations that Metro Express and Sealcoat were responsible for the installation, Ryan Landeck, Sealcoat Vice President, admitted in non-party deposition testimony in 2015 that Sealcoat had installed the wheel stop in question under Metro Express’s direction. ECF No. 289-10, Landeck 11/19/15 Depo. at 34, 45.16
16 Mr. Landeck later testified at a deposition that took place after Sealcoat was joined in the case that Sealcoat found that there was nothing to do be done at that location and Sealcoat did not invoice or receive payment for its alleged work at the station. ECF No. 368-3, Landeck 05/25/2016 Depo. at 51, 55. An October 23, 2013 email from Landeck to Michael Strasser, General Manager at Metro Express, further stated that “nothing was wrong at this station.” ECF No. 368-4.
Accordingly, the Court concludes that, unlike APD, there is a material dispute whether Metro Express and/or Sealcoat “launched a force or instrument of harm” if plaintiffs prove at trial that they negligently installed the wheel stop at the East 56th Street and Madison Avenue Citi Bike station in contravention of the site plan and the directions received from NYCBS. Unlike the case for APD, who provided general designs for hundreds of Citi Bike stations, there is no danger of an undue ballooning of tort liability because the contractors would be liable only for their own negligence and have an absolute defense if they can demonstrate [**88] that they were carrying out a pre-existing plan. Cf. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409, 430 (S.D.N.Y. 2014) (finding that Espinal and Moch stood for “the general public policy that courts will not impose a tort duty on a contracting party where doing so would expose the party to potentially unlimited and undefined liability” and finding a duty where there was “no risk of . . . boundless tort liability”).
Therefore, because the Court finds that a question of fact exists regarding whether Metro Express and/or Sealcoat “launched a force or instrument of harm,” Metro Express and Sealcoat’s motions for summary judgment are DENIED.
X. Gross Negligence Claims
Given that Corwin’s common-law negligence claims against NYCBS are barred by the enforceability of the Release Agreement as discussed in Part II of the opinion, NYCBS moves for summary judgment on the grounds that Corwin’s gross negligence claims fail as a matter of law.17
17 The City has also moved for summary judgment on this point; however, the Court has found that Corwin’s common-law negligence claims may proceed as to the City.
Under New York law, gross negligence is “conduct that evinces a reckless [*514] disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” Am. Tel. & Tel. Co. v. City of New York, 83 F.3d 549, 556 (2d Cir. 1996) (quoting Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81 N.Y.2d 821, 823-24, 611 N.E.2d 282, 595 N.Y.S.2d 381 (1993)). “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998). “In order to establish a prima facie case in gross [**89] negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.'” Travelers Indem. Co. of Connecticut v. Losco Grp., Inc., 204 F. Supp. 2d 639, 644 (S.D.N.Y. 2002) (quoting Hong Kong Exp. Credit Ins. Corp. v. Dun & Bradstreet, 414 F. Supp. 153, 160 (S.D.N.Y. 1975)).
Drawing all reasonable inferences in favor of Corwin, the nonmoving party, summary judgment is not appropriate on Corwin’s gross negligence claims. If, as argued by Corwin’s expert James M. Green, NYCBS is proven at trial to have unjustifiably ignored sound engineering practices and placed camouflaged wheel stops in the direct and foreseeable paths of cyclists, a reasonable factfinder could conclude that their conduct was sufficiently reckless and/or aggravated to meet the gross negligence standard. The defendants’ motion for summary judgment on Corwin’s gross negligence claims is therefore denied.
CONCLUSION
Corwin’s motion for summary judgment on defendants’ affirmative defenses relying on the Release Agreement is GRANTED as to the City and DENIED as to NYCBS. Corwin’s motion for summary judgment on defendants’ affirmative defenses relating to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions [**90] of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable, Corwin’s common-law negligence and professional negligence and malpractice claims are dismissed, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED. Metro Express and Sealcoat’s motions for summary judgment are DENIED.
The Clerk of Court is respectfully directed to terminate Dkt. Nos. 288, 295, 303, 304, 309, and 314 and terminate defendants Alta Planning + Design, Inc. and Alta Planning Design Architecture of New York, PLLC from the case.
SO ORDERED.
/s/ Sarah Netburn
SARAH NETBURN
United States Magistrate Judge
DATED: New York, New York
March 1, 2017
G-YQ06K3L262
http://www.recreation-law.com
Ho v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)
Posted: February 10, 2018 Filed under: Assumption of the Risk, Climbing Wall, Legal Case, New York | Tags: Affirmation, Assumption of risk, assumption of the risk, Bouldering, Bouldering Wall, Climb, climbed, climber, Climbing, Climbing Wall, Falling, false sense of security, feet, gym's, Harness, height, Indoor, Inherent Risk, instructor, mat, opined, Orientation, Padding, quotation, reply, rock, roommate, rope, skill, Sport, Spotter, spotting, Summary judgment, top Leave a commentHo v Steep Rock Bouldering, LLC, 2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)
[**1] Min-Sun Ho, Plaintiff, – v – Steep Rock Bouldering, LLC, Defendant. INDEX NO. 150074/2016
150074/2016
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2018 N.Y. Misc. LEXIS 32; 2018 NY Slip Op 30006(U)
January 2, 2018, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: climbing, bouldering, rock, gym’s, rope, harness, spotter, opined, climb, climber, falling, affirmation, feet, mat, climbed, sport, orientation, roommate, height, summary judgment, top, spotting, assumption of risk, instructor, padding, false sense of security, indoor, reply, quotation, skill
JUDGES: [*1] PRESENT: Hon. Robert D. KALISH, Justice.
OPINION BY: Robert D. KALISH
OPINION
Motion by Defendant Steep Rock Bouldering, LLC pursuant to CPLR 3212 for an order granting summary judgment against Plaintiff Min-Sun Ho is granted.
BACKGROUND
I. Overview
Plaintiff brought this action seeking damages for injuries she sustained on October 12, 2015, while at Defendant’s bouldering gym, Steep Rock Bouldering. Plaintiff alleges, in sum and substance, that, due to the negligence of Defendant, she fell from Defendant’s gym’s indoor climbing wall and landed on her right arm, tearing ligaments and breaking a bone in the arm and elbow area, which required surgery. Defendant argues, in sum and substance, that Plaintiff assumed the risk of injury from a fall at its gym and that its gym provided an appropriate level of safety and protection for boulderers through warnings, notices, an orientation, equipment, and the nature of the climbing wall itself. As such, Defendant argues it had no further duty to Plaintiff. Plaintiff argues, in sum and substance, that she did not assume the risk of an injury from falling off of the climbing wall.
[**2] II. Procedural History
Plaintiff commenced the instant action against Defendant on January 5, 2016, [*2] by e-filing a summons and a complaint alleging a negligence cause of action. (Goldstein affirmation, exhibit A.) Defendant answered on March 28, 2016, denying all the allegations in the complaint and asserting 21 affirmative defenses, including Plaintiff’s assumption of the risk. (Goldstein affirmation, exhibit B.)
The examination before trial (“EBT”) of Plaintiff was held on February 14, 2017. (Goldstein affirmation, exhibit E [Ho EBT].) The EBT of Defendant, taken of witness Vivian Kalea (“Kalea”), was held on February 23, 2017. (Goldstein affirmation, exhibit F [Kalea EBT].) Plaintiff provided Defendant with her liability expert’s disclosure pursuant to CPLR 3101 (d) on or about March 27, 2017. (Goldstein affirmation, exhibit G.) Plaintiff filed the note of issue in this action on May 4, 2017. (Goldstein affirmation, exhibit J.)
On or about May 25, 2017, Defendant moved to strike Plaintiff’s note of issue. On or about May 30, 2017, Plaintiff cross-moved to preclude certain expert and medical testimony from Defendant at trial due to Defendant’s alleged failure to provide timely disclosures. Defendant provided Plaintiff with its liability expert’s disclosure pursuant to CPLR 3101 (d) on or about June 16, 2017. [*3] (Goldstein affirmation, exhibit H.) On June 29, 2017, Defendant noticed the instant motion On July 14, 2017, this Court ordered Defendant’s motion to strike and Plaintiff’s cross motion to preclude withdrawn per the parties’ stipulation, dated July 6, 2017.
Defendant now moves for an order pursuant to CPLR 3212 granting it summary judgment and dismissing this action with prejudice.
III. Plaintiff’s EBT
Plaintiff Min-Sun Ho stated that she and her roommate intended to climb the indoor wall at Steep Rock Bouldering on October 12, 2015. (Ho EBT at 12, lines 17-23.) Plaintiff further stated that her roommate had joined Defendant’s gym several weeks prior to October 12, 2015. (Id. at 13, lines 12-13; at 14, lines 2-3, 13-25.) Plaintiff further stated that, prior to October 12, 2015, in high school, she took a rock climbing class once a week for a semester. (Id. at 15, lines 16-25.) Now in her thirties, Plaintiff stated that she was able to recall the class, the basic commands for climbing, and the techniques for climbing. (Id. at 20, lines 5-2.1; at 22, lines 17-21.)
[**3] Plaintiff stated that, on October 12, 2015, she looked up Defendant’s gym’s Facebook page and observed people climbing at Steep Rock Bouldering without ropes or harnesses. [*4] (Id. at 27, lines 7-11; at 29, lines 15-20.) Plaintiff further stated that she then signed up online for a one-month membership at Steep Rock Bouldering. (Id. at 28, lines 15-20.) Plaintiff further stated that she had also heard from her roommate, before October 12, 2015, that there were no harnesses or ropes at Steep Rock Bouldering. (Id. at 30, lines 6-13.) Plaintiff further stated that, on October 12, 2015, Plaintiff’s roommate again explained that Defendant’s gym does not have harnesses or ropes. (Id. at 29, line 25; at 30, lines 2-5.) Plaintiff stated she was not aware, prior to October 12, 2015, that the term “bouldering” refers to a form of rock climbing without harnesses or ropes. (Id. at 85, lines 2-7.)
Plaintiff stated that, upon arriving at Steep Rock Bouldering on October 12, 2015, she observed a reception desk and a climbing wall to her left where she saw more than three people climbing. (Id. at 31, lines 17-23; at 32, line 25; at 33, lines 2-3.) Plaintiff further stated that she believed the climbing wall was about 15 feet tall. (Id. at 32, lines 4-20.) Plaintiff further stated that the receptionist asked if Plaintiff had rock climbed before and that she answered that she had, a long time ago. (Id. at 47, lines 2-8.) Plaintiff stated she signed [*5] an electronic waiver form at the reception desk. Plaintiff, at the time of the EBT, stated she did not recall having read any of the waiver except for the signature line. (Id. at 43, lines 11-19.)
Plaintiff stated that, after signing the waiver, she waited while the receptionist called a man over to Plaintiff and her roommate. Plaintiff stated she herself believed the man who came over was another Steep Rock Bouldering employee. (Id. at 45, lines 10-25; at 46, lines 2-4.) Plaintiff stated’ that the man told Plaintiff “something along the lines of that’s the wall as you can see, it’s self-explanatory.'” (Id. at 46, lines 11-12.) Plaintiff further stated that the man also told her “[t]hose are the bathrooms.” (Id. at 49, lines 2-3.) Plaintiff further stated that the man asked her if she had rock climbed before and that she answered “yeah, a while ago.” (Id. at 49, lines 7-10.) Plaintiff stated that the man did not say he was an instructor or take Plaintiff anywhere and that neither the man nor the receptionist said anything about an instructor. Plaintiff further stated that she did not have an orientation or an instructor at Defendant’s gym. (Id. at 47, lines 15-23; at 48, lines 21-25.) Plaintiff further stated she that did not see any instructional [*6] videos. (Id. at 80, lines 19-22.) Plaintiff further stated that she had felt comfortable not having an instructor and climbing the walls without any harnesses or ropes. (Id. at 81, lines 17-22.)
[**4] Plaintiff stated that, after speaking with the man, she changed into climbing shoes which she stated she recalled borrowing from Steep Rock Bouldering. (Id. at 48, lines 5-20.) Plaintiff further stated that she then put her and her roommate’s belongings away in a cubby and started getting ready to climb. (Id. at 49, lines 13-18.) Plaintiff stated that she had observed mats in front of the climbing wall on the floor. (Id. at 49, lines 19-24.) Plaintiff stated that she had further observed “quite a few” people who she thought were other climbers and their friends climbing the wall or watching and giving tips on holds. (Id. at 50, lines 5-21; at 55, lines 6-10.)
Plaintiff stated she was told before she started climbing that the holds on the climbing wall are tagged according to their difficulty and that the levels of difficulty marked “V0 or V1” are the “easiest.” (Id. at 54, lines 2-20.) Plaintiff further stated that, after waiting a few minutes, she herself climbed to the top of the climbing wall on level V1 on her first attempt. (Id. at 55, lines 16-19, 24-25; at [*7] 56, lines 2-9.) Plaintiff further stated that she did not think it took very long to make the climb. (Id. at 56, lines 10-11.) Plaintiff stated she and her roommate took turns climbing the wall. (Id. at 63, lines 12-16.) Plaintiff further stated that, while she herself was climbing, her roommate was on the mat watching her climb. (Id. at 63, lines 17- 22.) Plaintiff stated that she herself climbed again once or twice without incident. (Id. at 56, lines 16-19; at 57, lines 18-21.) Plaintiff stated that, on her third or fourth climb, she herself had made it about a couple of feet from the top of the wall before she fell. (Id. at 57, lines 3-10, 15-25; at 58, lines 2-9.) Plaintiff stated that her roommate was watching her when she fell. (Id. at 63, line 22.)
Plaintiff stated that she had not fallen from a climbing wall prior to October 12, 2015. (Id. at 59, lines 2-7.) Plaintiff further stated she did not think she could fall, nor did she think about falling, when she bought her membership, when she first saw the wall when she entered the building, or when she first started climbing. (Id. at 59, lines 13-25; at 60, lines 2-8, 17-19.) Plaintiff further stated that did not see anyone else fall at Steep Rock Bouldering prior to her own fall, but did see people [*8] jumping down from “[s]omewhere above the middle” and “closer to the top” of the climbing wall instead of climbing down. (Id. at 60, lines 9-16.)
Plaintiff stated she herself climbed down the wall after her first climb, but then became more “confident” and climbed down halfway and then jumped in subsequent successful climbs. (Id. at 60, lines 22-25; at 61, lines 2-6.) Plaintiff further stated that, immediately before she fell, she was climbing up the wall and reaching to the side. (Id. at 61, lines 7-13.) Plaintiff further stated that she then grabbed onto a knob, looked down, and saw a man looking up at her. (Id. at 62, [**5] lines 2-7.) Plaintiff was asked at the EBT “[w]hen you looked down, did you think about falling or if you could fall?” In reply, Plaintiff stated “I was a little scared. When I looked down, I was a lot higher than I thought I was.” (Id. at 62, lines 12-15.) Plaintiff stated that she had wanted to come back down at this time. (Id. at 62, lines 24-25; at 63, lines 2-4.) Plaintiff further stated that she fell after she saw the man looking up at her. (Id. at 62, line 8.) Plaintiff was asked at the EBT “[d]o you know why you fell?” and answered, “I don’t know exactly.” (Id. at 62, lines 5-6.)
IV. Defendant’s EBT
Vivian Kalea stated that, at the [*9] time of her EBT, she was the general manager of Steep Rock Bouldering. (Kalea EBT at 6, lines 4-7.) Kalea further stated that, on October 12, 2015, she was a closing manager and youth team coach at Steep Rock Bouldering. (Id. at 6, lines 8-12.)
Kalea stated that she was at Steep Rock Bouldering when Plaintiff was injured and filled out the related injury report form. (Id. at 13, lines 19-21.) Kalea stated that the injury report indicated that Plaintiff was a member of Steep Rock Bouldering and had paid a fee to use the gym prior to her injury. (Id. at 16, lines 12-13.) Kalea stated that the injury report further indicated that Plaintiff fell from a yellow V1 level of difficulty, about three moves from the top, and landed on her right side. (Id. at 19, lines 6-9; at 31, lines 15-21; at 34, line 25.)
Kalea stated that V1 is a beginner’s level of difficulty. (Id. at 34, lines 13-15.) Kalea further stated that, the higher the number is after the “V,” the greater the level of difficulty. Kalea stated that the “V” designation is not a description of a specific height or location. (Id. at 33, lines 9-14.) Kalea further stated that V2 is also a beginner’s level. (Id. at 33, lines 23-25, at 34, lines 2-4.) Kalea further stated that the wall Plaintiff was on had a “slight incline” but was “mostly [*10] vertical” and “[c]lose to 90 degrees. (Id. at 41, lines 11-25; at 42, lines 2-4.)
Kalea stated that Steep Rock Bouldering offered climbing shoe rentals and chalk for climbers on October 12, 2015. (Id. at 9, lines 20-21; at 10, line 14.) Kalea further stated that the climbing shoes provide support for climbing activities by improving friction and power to the big toe and that the chalk gives the climbers a better grip on whatever it is they are holding onto. (Id. at 21, lines 18-25; at 22, lines 2-25; at 23, lines 2-A.) Kalea further stated that the padded area in front of the climbing wall was over a foot thick on October 12, 2015, and was there to help absorb the shock from a fall. (Id. at 23, lines 5-18.) Kalea further stated that a [**6] spotter, “somebody who guides a climber to fall down,” was not required at Steep Rock Bouldering on October 12, 2015. (Id. at 49, lines 19-25.)
Kalea stated that the climbing walls at Steep Rock Bouldering are 14 feet high and that the holds do not all go to the top. (Id. at 24, lines 17-19.) Kalea further stated that the holds are of different textures, sizes, and appearances and that their locations can be changed to create varying paths up the wall and establish the difficulty of a given level. (Id. at 24, lines [*11] 16-25; at 25, lines 2-17; at 29, lines 2-5.) Kalea further stated that climbers at Steep Rock Bouldering do not climb with ropes or harnesses. (Id. at 40, line 25; at 41, line 2.)
Kalea stated that Steep Rock Bouldering employees ask whether it is a new member’s first time bouldering “to clarify that they understand the risk of bouldering.” (Id. at 21, lines 13-17.) Kalea further stated that every climber is supposed to receive an oral safety orientation from Steep Rock Bouldering staff prior to climbing that consists of the following:
“It consists of understanding the person’s climbing experience, their experience bouldering. That they understand that bouldering is a dangerous sport. How every fall in a bouldering environment is a ground fall. It goes over how the climbs are kind of situated, so everything is by color and numbers. It goes over that we do encourage down climbing in the facility. So that means when you reach the top of the problem, which is not necessarily the top of the wall, but the finishing hold, you climb down about halfway before you jump, if you do want to jump. It goes over how to best fall.”
(Id. at 46, lines 2-24; at 47, lines 3-16.) Kalea stated that the giving such an orientation is [*12] standard in the climbing industry and was required at Steep Rock Bouldering on October 12, 2015. (Id. at 48, lines 3-10.) Kalea further stated that “[i]t is made clear to everyone who walks in the door that they are going to receive a safety orientation” and that staffs failure to do so would be breaking Steep Rock Bouldering’s rules. (Id. at 48, lines 17-21.) Kalea was asked at the EBT to assume that Plaintiff was told “essentially . . . there is the wall, it’s self explanatory [sic] and that’s all the person did” and was then asked “[i]f that is all that was said, is that a proper safety instruction orientation?” (Id. at 49, lines 3-17.) Kalea replied, “[i]t is not.”
[**7] V. Plaintiff’s Liability Expert
Plaintiff retained Dr. Gary G. Nussbaum as its liability expert. Dr. Nussbaum has a Masters of Education and an Education Doctorate in Recreation and Leisure Studies from Temple University. Dr. Nussbaum has 45 years of experience in the adventure education, recreation, and climbing field with a variety of teaching credentials related specifically to climbing. In forming his opinion, Dr. Nussbaum reviewed photographs of the climbing wall used by Plaintiff on the date of her injury, the injury report, the waiver form, [*13] and the EBT transcripts.
After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.” (Broome affirmation, exhibit 1 [aff of Nussbaum], at 3.)
Dr. Nussbaum opined that a person of Plaintiff’s skill level was a novice and needed to be taught “how to climb, how to come down, and even how to fall safely. None of this was done or provided.” (Id. at 4.) Dr. Nussbaum opined further that “[a]s a new climber, [Plaintiff] did not appreciate the risk” involved with bouldering. (Id.) Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk. (Id.) Dr. Nussbaum opined further that the padding “likely” [*14] gave Plaintiff a “false sense of security” and “no appreciation of the risk here.” (Id.)
Dr. Nussbaum opined that, because Steep Rock Bouldering does not offer rope climbing, its climbing wall requires that the climber “climb down, climb partway down and jump the remainder, fall down in a controlled manner, or simply fall down if he or she loses control.” (Id. at 5.) Dr. Nussbaum cited to the Climbing Wall Association’s (“CWA”) Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines. (Id.)
[**8] Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further:
“[Plaintiff’s] ‘level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been ‘supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous [*15] climbing-experience and essentially told ‘here’s the wall, have at it.'”
(Id. at 6.)
Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum opined further:
“[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the ‘new client’s ability to climb in the facility’ and ‘to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process.”
(Id.)
Dr. Nussbaum opined that spotting is an advanced skill requiring training for the spotter to spot effectively and safely. As such, Dr. Nussbaum stated, Plaintiff’s roommate “was not a spotter and had no skill and no training to be one.” (Id. at 3.) Dr. Nussbaum opined further that Steep Rock Bouldering was required to enforce its spotter [*16] requirement by providing an adequately skilled spotter or ensuring that an intended spotter has the requisite skill set. (Id. at 5.) Dr. Nussbaum opined further that, if Steep Rock Bouldering chooses not to require spotting, it is then required to “emphasize, encourage and instruct in the safest ways to descend, including falling [**9] techniques. . . . [It] did not enforce its spotting requirement nor [sic] provide proper instruction in falling techniques.” (Id. at 7.)
VI. Defendant’s Liability Expert
Defendant retained Dr. Robert W. Richards as its liability expert. Dr. Richards is a founding member of the CWA and is currently affiliated with CWA as an expert in risk management. Dr. Richards has been involved in the climbing wall industry since 1992. Dr. Richards stated that, as there are no set regulations for climbing facilities, the CWA intends to assist the industry in defining, understanding, and implementing a set of responsible management, operational, training, and climbing practices. (Goldstein affirmation, exhibit I [aff of Richards], ¶ 2.) Dr. Richards further stated that the CWA’s Industry Practices is a sourcebook for the operation of manufactured climbing walls. (Id. ¶ 3.)
In forming his opinion, [*17] Dr. Richards performed a site inspection of Steep Rock Bouldering’s climbing wall on June 22, 2017. (Id. ¶ 20.) Dr. Richards observed at the site inspection that Defendant’s gym had “Climb Smart” posters, indicating the risks of bouldering, displayed in multiple locations. Dr. Richards stated that these signs were also present on October 12, 2015. (Id.) Dr. Richards observed further that the climbing wall is approximately thirteen feet, six inches tall when measured from the top of the padded area around the wall. (Id. ¶ 30:) Dr. Richards stated that this was also the height of the wall on October 12, 2015. (Id.)
Dr. Richards describes the sport of bouldering as follows:
“Bouldering is the form of climbing that is performed without the use of safety ropes and typically on a climbing surface that is low enough in height that a fall from the wall will not be fatal. Bouldering walls in climbing gyms may range from ten to twenty feet in height. The [CWA] states that average bouldering wall heights in the climbing wall industry are between twelve and fifteen feet. Climbers who boulder are referred to as boulderers . . . .”
(Id. ¶¶ 13-14.) Dr. Richards stated “[a] specific climb is referred [*18] to as a . . . ‘problem’ and is usually marked with colored tape or colored holds which are attached to the artificial climbing wall.” (Id. ¶ 7 [punctuation omitted].)
[**10] Dr. Richards opined that bouldering entails an inherent risk of injury from falls. (Id. ¶ 4.) Dr. Richards opined further that it is not possible to eliminate this risk “without altering the very essence of the sport.” (Id.) Dr. Richards opined further that the most common injuries in climbing gyms are to the extremities which can result from falls of any height. (Id. ¶ 15.)
Dr. Richards opined further that the risk inherent to bouldering was communicated to Plaintiff by means of a written liability release and an orientation. (Id. ¶ 17.) Dr. Richards stated that Plaintiff signed a liability release form and completed an orientation. (Id. ¶¶ 17, 31.) Dr. Richards stated further that the liability release form included the following language: “I have examined the climbing wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the climbing wall, including but not limited to: [injuries] resulting from falling off or coming down from the climbing wall . . . .” (Id. ¶ [*19] 17.)
Dr. Richards opined further that, having visited approximately “200 gyms” since 1992, he has never been to a gym that requires climbers to have spotters and strictly enforces that requirement. (Id. ¶¶ 1, 22-23.) Dr. Richards stated that spotting was developed for outdoor bouldering to guide the fall of boulderers in an environment where there are typically little or no padded surfaces to protect the head. (Id. ¶ 24.) Dr. Richards stated that the CWA does not require spotters when bouldering on artificial climbing walls and that it is not a common practice in the industry to require such spotters. (Id. ¶ 25.) Dr. Richards further stated that the padded landing surfaces in gyms reduce many of those dangers that a spotter would help to mitigate outdoors. (Id.) Dr. Richards opined that, as such, use of a spotter in an indoor climbing gym is of “limited benefit” and “may cause injury to the boulderer and spotter if the climber were to fall directly on the spotter.” (Id.)
Dr. Richards opined further that the purpose of Defendant gym’s padded landing surface around its climbing wall is “to mitigate potential injuries to the head and neck.” (Id. ¶ 26.) Dr. Richards opined further that, [*20] while the padding may “provide some cushioning for falls,” per Annex E to the CWA’s Industry Practices, “[p]ads are not designed to mitigate or limit extremity injuries, although they may do so.” (Id.) Dr. Richards stated that, while there was no industry standard regarding the type, amount, or use of such padding in October 2015, a typical surface in October 2015 would have “consisted of four to six inches of foam padding or other impact attenuation [**11] material with a top layer of gymnastic carpet or vinyl that covers the underlying padding.” (Id. ¶¶ 27-28.) Dr. Richards further stated that Defendant’s gym used foam pads of a twelve-inch depth that ran continuously along the climbing wall and extended twelve feet out from the wall on October 12, 2015. (Id. ¶ 29.)
ARGUMENT
I. Defendant’s Affirmation in Support
Defendant alleges in its papers that it has a place of business that includes a bouldering climbing gym in New York City on Lexington Avenue. (Affirmation of Goldstein ¶ 14.) Defendant further alleges that its gym has a continuous climbing wall that is approximately 30 to 40 feet wide and 14 feet tall and has climbing holds which are textured objects bolted into the wall which climbers [*21] can grab onto with their hands and stand upon with their feet. (Id. ¶¶ 14, 16.)
Defendant argues, in the main, that Plaintiff assumed the inherent risk associated with climbing an indoor wall and with bouldering when she chose to climb Defendant’s gym’s bouldering wall. (Memorandum of law of Goldstein, at 1.) Defendant argues Plaintiff was able to make an informed estimate of the risks involved in bouldering and that she willingly undertook them. (Id. at 3-4.) Defendant further argues that Plaintiff was aware of the potential for injury from a fall because she is an intelligent adult familiar with the laws of gravity and had prior wall climbing experience in an indoor setting (albeit with ropes). (Id. at 4.) Defendant further argues that Plaintiff was aware of the risks associated with climbing because, before she was injured, Plaintiff watched other climbers ascend and descend its climbing wall and climbed up and down the wall herself without incident several times, even feeling comfortable enough to jump from halfway down the wall as opposed to climbing all the way down. (Id. at 8-9.) Defendant further argues that Plaintiff voluntarily and knowingly engaged in the bouldering activity and that her fall was a common, albeit [*22] unfortunate, occurrence. (Id. at 10.)
Defendant argues that falling is inherent to the sport of climbing, that falling cannot be eliminated without destroying the sport, and that injuries resulting from falling from a climbing wall are foreseeable consequences inherent to bouldering. (Id.) Defendant further argues that the risk of falling from Defendant’s gym’s climbing wall was open and obvious to Plaintiff. (Id. at 5.) Defendant further argues that Plaintiff did not request further instruction beyond what Steep Rock [**12] Bouldering provided on October 12, 2015, and that Plaintiff was comfortable climbing without ropes or a harness. (Id. at 5-6.) Defendant argues that Plaintiff’s allegation that she did not receive proper instruction is pure conjecture and will only invite the jury to speculate about what further instruction Plaintiff would have received had she sought it out. (Id. at 6.)
Defendant argues that there was no unique risk or dangerous condition in Defendant’s gym on October 12, 2015, over and above the usual dangers inherent to bouldering. Defendant further argues that Defendant has the right to own and operate a gym that offers bouldering, only, and not rope climbing. (Id. at 7.) Defendant further argues that the height [*23] of its gym’s climbing wall and the depth of its surrounding padding were well within what was typical of other climbing facilities in October 2015. (Id.) Defendant further argues that it had no duty to provide a spotter or supervise Plaintiff’s climbing. (Id. at 7-8.)
Defendant argues that Plaintiff’s expert has not cited to any standards or rules that would have required that Defendant provide Plaintiff with a spotter or supervise Plaintiff’s climbing or that would justify an opinion that negligence on the part of Defendant proximately caused Plaintiff’s accident. (Id. at 8, 10.) Defendant further argues that Plaintiff’s expert fails to acknowledge that Plaintiff engaged in a rope climbing class every week for a semester. (Id. at 10.) Defendant further argues that Plaintiff’s expert has never visited Steep Rock Bouldering and that therefore any assertions that Plaintiff’s expert will make are conclusory and insufficient to demonstrate Defendant’s negligence.
II. Plaintiff’s Affirmation in Opposition
Plaintiff argues in her papers that the affidavit of her liability expert, Dr. Gary G. Nussbaum, establishes Defendant’s negligence and Plaintiff’s lack of appreciation and understanding of the risk. (Affirmation of Broome, at 1.) Plaintiff further [*24] argues that she had a false sense of security because of the thick mats around the climbing wall and that she therefore did not appreciate the risk. (Id. at 1-2.) Plaintiff further argues that her climbing experience at Steep Rock Bouldering was very different from her prior experience with climbing, which was limited to one semester of indoor climbing class 12-13 years prior to the incident, in high school, involving a rope, harness, spotter, and instructor. (Id. at 2; aff of Ho, at 2.) At the time of the incident, Plaintiff was age 30 and had never done any rock climbing again after the high school class. (Aff of Ho, at 2.)
[**13] Plaintiff argues that she believed the padding beneath the climbing wall would prevent “any injury whatsoever.” (Id. at 4.) Plaintiff further argues that this was her belief even though she signed a release of liability because she did not read it. (Id. at 3.) Plaintiff further argues that she was given no orientation or instructor on October 12, 2015, but was only told where the wall was and that it was “self-explanatory.” (Id.) Plaintiff further argues that the release she signed is void and unenforceable because she paid a fee to use Defendant’s gym. (Affirmation of Broome, at 2.)
Plaintiff argues that Defendant was negligent in failing to [*25] provide Plaintiff with a rope, a harness, instruction, an orientation, and a spotter. (Id. at 3.) Plaintiff further argues that the assertions of Defendant’s liability expert, Dr. Robert W. Richards, regarding posters on the wall at Steep Rock Bouldering are irrelevant and erroneous because he visited the facility 1.75 years after Plaintiff’s accident and claims the posters were in place on the date of the accident. (Id.)
III. Defendant’s Reply Affirmation in Support
Defendant argues in its reply papers that Plaintiff did not have a false sense of security because Plaintiff: (1) was aware that Defendant’s gym only supplied climbing shoes and climbing chalk; (2) observed that none of the other climbers were asking for a rope or a harness; (3) testified that she felt comfortable climbing without harness, a rope, or an instructor; (4) knew prior to her injury that the climbing paths have different difficulty levels and that she was at a beginner level; and (5) had already, prior to her injury, climbed the wall two to three times without incident, reached the top of the wall, and jumped from the wall to the floor from halfway up the wall. (Reply affirmation of Goldstein, at 1-2; reply memorandum of law of Goldstein [*26] ¶ 3.) Defendant further argues that Plaintiff’s claim of having a false sense of security is disingenuous because she plainly observed the conditions of the climbing wall and the padded mats, was able to approximate the height of the wall, and, at age 30, was fully aware of, paid to engage in, and voluntarily undertook a form of climbing that involves neither ropes nor harnesses. (Reply memorandum of law of Goldstein ¶ 4.)
Defendant argues that Plaintiff has overlooked Dr. Richards’ explanation that a spotter has limited benefit and may cause injury to the climber and spotter if the climber were to fall directly onto the spotter. (Id. ¶ 5.) Defendant further argues that climbers utilizing a rope and harness may also sustain injury from falls when climbing. (Id. ¶ 6.)
[**14] Defendant argues that Plaintiff cannot prove by a preponderance of the evidence that Defendant proximately caused Plaintiff’s injury because Plaintiff herself testified that she does not know why she fell, and mere speculation regarding causation is inadequate to sustain a cause of action. (Id. ¶ 5.)
Defendant further argues that Plaintiff was aware of and assumed the risk that, in climbing a wall without ropes and harnesses–or [*27] a spotter–she could sustain an immediate physical injury from a fall. (Id. ¶¶ 4-5, 9.)
IV. Oral Argument
On November 13, 2017, counsel for the parties in the instant action appeared before this Court for oral argument on Defendant’s instant motion for summary judgment. Stephanie L. Goldstein, Esq. argued on behalf of Defendant and Alvin H. Broome, Esq. argued on behalf of Plaintiff.
Defendant argued that this is an assumption of the risk case in which Plaintiff fell during participation in a sport–bouldering–which, by definition, is rock climbing without ropes or harnesses. (Tr at 2, lines 23-25; at 3, lines 8-18.) Defendant further argued that Plaintiff had no reasonable expectation there would be ropes or harnesses at Steep Rock bouldering. Plaintiff stated that her roommate told her that climbing at Steep Rock Bouldering would involve no ropes or harnesses. (Id. at 4, lines 5-13.) Plaintiff further stated that she observed photographs of people using the gym on Facebook at parties–prior to going to Defendant’s gym–without ropes or harnesses. (Id. at 4, lines 15-19.) Plaintiff further stated that she saw people climbing at the gym in person before she climbed and that none of them were using ropes [*28] or harnesses. (Id. at 4, lines 20-24.)
Defendant argued that Plaintiff was additionally noticed as to the dangers inherent to bouldering by the electronic waiver, which she signed. (Id. at 5, lines 3-18.) Defendant clarified that it is not moving to dismiss the instant action on waiver grounds and acknowledged that Plaintiff’s signing the waiver did not absolve Defendant of liability. (Id. at 5, lines 13-14.) Defendant argued that Plaintiff was further noticed by an individual, an employee of Defendant, who explained to Plaintiff prior to her climbing about the wall and the climbing paths. (Id. at 5, lines 19-23.) Defendant argued that Plaintiff was further noticed by her own experience of climbing up and down the wall two to three times without any [**15] incident and with jumping off of the wall prior to her fall. (Id. at 5, line 26; at 6, line 2; at 7, lines 11-16.) Defendant was comfortable climbing without equipment or an instructor. (Id. at 7, lines 6-10.)
Defendant argued that it cannot enforce a statement on its waiver that a climber is not to climb without a spotter. Defendant argued that this is for four reasons: because spotting does not prevent injury, because spotting was developed when bouldering was outside, because spotting [*29] can only act to attempt to protect the head and neck outdoors–and indoors the padding provides this function–and because spotting may endanger the spotter. Defendant stated that spotting is not enforced at its gym. Defendant further stated that its liability expert has not seen this requirement enforced at any of the 200 gyms he has traveled to which do have this requirement on paper. (Id. at 6, lines 7-26; at 7, lines 2-5.)
Defendant argued that falling when climbing a wall is a common, foreseeable occurrence at a climbing facility. (Id. at 8, lines 3-5.) Defendant further argued that Plaintiff is an intelligent woman, 30 years old at the time of her injury, with a degree in biology. As such, Defendant argued that Plaintiff knew the laws of gravity: what goes up, must come down. (Id. at 8, lines 6-9.) Defendant further argued that a person is said to have assumed the risk if he or she participates in an activity such as climbing where falling is an anticipated and known possibility. (Id. at 9, lines 9-13.) Defendant further argued that Plaintiff testified that she does not know what caused her to fall. (Id. at 7, lines 21-23.)
Plaintiff argued in opposition that Defendant’s own rules required a spotter for climbers and that [*30] Defendant broke its rule and therefore proximately caused Plaintiff’s injury. (Id. at 9, lines 24-26; at 10, lines 2-6; at 11, lines 11-16, 24-25; at 12, lines 15-21.) Plaintiff further argued that “in every kind of climbing you are required to have a rope, a harness, something to prevent an injury and a fall.” (Id. at 12, lines 11-13.) Plaintiff further argued that a spotter “will say lift your arms, turn to the side” as a person begins to fall. (Id. at 11, lines 24-25.)
Plaintiff further argued that proximate cause has been established and the real question for the Court is whether Plaintiff assumed the risk. (Id. at 12, lines 22-25.) Plaintiff argued that “unusually thick” mats around the climbing wall gave Plaintiff a false sense of security. (Id. at 13, line 8.) Plaintiff further argued that Plaintiff saw people fall onto the soft matted floor without getting hurt, and therefore assumes this is a safe sport, but it is not. Plaintiff argued that assumption of risk is a subjective standard and that Plaintiff was a novice who had only [**16] climbed with ropes and harnesses prior to the day of her injury and thus did not assume the risk of “falling on a soft mat and breaking an elbow.” (Id. at 10, lines 7-10; at 14, lines 13-16.)
Plaintiff [*31] argued that there is a distinction between assuming the risk that one could fall from a climbing wall and assuming the risk that one could be injured from the fall. Plaintiff further argued that Plaintiff assumed the former, not the latter, in part because of a false sense of security due to the mats and not having a spotter. (Id. at 14, lines 23-26; at 15, lines 2-23; at 16, lines 2-9.) Plaintiff further argued that the mats that are placed by the climbing wall are “extremely substantial,” “for the sole purpose of preventing injury,” and “designed supposedly to prevent injury from a fall, and . . . didn’t.” (Id. at 16, lines 16-20.)
Plaintiff argued that, as a matter of law, because the mats were there, Plaintiff cannot be held to the belief that she was going to get hurt when she went up the climbing wall. (Id. at 16, lines 22-24.) Plaintiff clarified that she is not claiming the mat was inadequate. (Id. at 16, line 21.) Plaintiff argued that there was no assumption of injury from climbing or falling normally from the Defendant’s gym’s climbing wall. (Id. at 17, lines 13-14.) Plaintiff argued further that Plaintiff “did not assume the risk of being injured by a fall, period.” (Id. at 18, line 20.)
Defendant argued in reply that Plaintiff [*32] was bouldering, which by definition involves no ropes or harnesses, and did so voluntarily. (Id. at 23, lines 11-12.) Defendant further argued that Plaintiff’s liability expert cites to no regulations, standards, or rules that would quantify his reasoning why there should have been ropes, harnesses, or a spotter, or why the mat gave Plaintiff a false sense of security. (Id. at 23, lines 17-22.) Defendant further argued that the law says that when someone assumes the risk, they are assuming the risk inherent to the activity, and that assumption of injury specifically is not required. (Id. at 23, line 26; at 24, lines 2-5.) Defendant further argued that, in the instant case, the risk inherent to bouldering is falling, and that falling from a height may result in injury. As such, Defendant argued, Plaintiff assumed the risk. (Id. at 24, lines 4-18.)
Defendant further argued that there was no negligent hidden condition and nothing wrong with the wall or the mats. (Id. at 24, lines 20-21, 24-25.) Defendant argued that a climbing wall of 13 to 14 feet and mats of 12-inch thickness, as here, are typical. (Id. at 24, lines 25-26; at 25, lines 2-3.) Defendant further argued that stating that Plaintiff fell because she did not have a rope or harness [*33] is speculation insufficient to defeat a motion for summary judgment. (Id. at 25, lines 4-6.)
[**17] DISCUSSION
I. The Summary Judgment Standard
“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor, and he must do so by tender of evidentiary proof in admissible form.” (Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980] [internal quotation marks and citation omitted].) “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397 [2003].) “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.” (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503, 965 N.E.2d 240, 942 N.Y.S.2d 13 [2012] [internal quotation marks and citation omitted].) In the presence of a genuine issue of material fact, a motion for summary judgment must be denied. (See Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231, 385 N.E.2d 1068, 413 N.Y.S.2d 141 [1978]; Grossman v Amalgamated Hous. Corp., 298 A.D.2d 224, 226, 750 N.Y.S.2d 1 [1st Dept 2002].)
II. The Assumption of Risk Doctrine
“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent [*34] in the activity.” (Cruz v Longwood Cent. School Dist., 110 AD3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013].) “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” (Id.) However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.” (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986].) “[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.” (Morgan v State, 90 NY2d 471, 485, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [internal quotation marks omitted].) In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.” (Id. at 485-486.)
[**18] In 1975, the state legislature codified New York’s comparative fault law when it passed what is now CPLR 1411, “Damages recoverable when contributory negligence [*35] or assumption of risk is established.” CPLR 1411 provides:
“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”
Notwithstanding the text of CPLR 1411, the Court of Appeals has held that, in certain circumstances, a plaintiff’s assumption of a known risk can operate as a complete bar to recovery. The Court of Appeals refers to this affirmative defense as “primary assumption of risk” and states that “[u]nder this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.” (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 N.E.2d 933, 957 N.Y.S.2d 268 [2012] [internal quotation marks omitted].) In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do [*36] or leave undone.” (Turcotte v Fell, 68 NY2d 432, 438, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986], quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed].)
Nonetheless, the doctrine of primary assumption of risk has often been at odds with this state’s legislative adoption of comparative fault, and as such has largely been limited in application to “cases involving certain types of athletic or recreational activities.” (Custodi, 20 NY3d at 87.) In Trupia ex rel. Trupia v Lake George Cent. School Dist., Chief Judge Lippman discussed the uneasy coexistence of the two doctrines:
“The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in facilitating free and vigorous participation in athletic activities. We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these [**19] beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context [*37] and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death.”
(14 NY3d 392, 395-96, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010] [internal quotation marks and emendation omitted].) Writing two years later, Chief Judge Lippman further explained the scope of primary assumption of risk in Bukowski v Clarkson University:
“The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities s aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Relatedly, risks which are commonly encountered or ‘inherent’ in a sport, such as being struck by a ball or bat in baseball, are risks [*38] for which various participants are legally deemed to have accepted personal responsibility. The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions.”
(19 NY3d 353, 356, 971 N.E.2d 849, 948 N.Y.S.2d 568 [2012] [internal quotation marks and emendation omitted].)
III. Defendant Has Shown Prima Facie that Plaintiff Assumed the Risk of Injury from Falling from Defendant’s Gym’s Climbing Wall, and Plaintiff Has Failed to Raise a Genuine Issue of Material Fact in Response
Based upon the Court’s reading of the submitted papers and the parties’ oral argument before it, the Court finds that Defendant has shown prima facie that Plaintiff assumed the risks associated with falling from Defendant’s gym’s climbing wall, including injury. Defendant has shown prima facie that Plaintiff voluntarily participated in the sporting activity of bouldering at Steep Rock Bouldering and assumed the risks inherent therein. Specifically, Defendant has [**20] referred to Plaintiff’s deposition testimony, which was sufficient to establish that Plaintiff: (1) had experience with rock climbing; (2) was aware of the conditions of the climbing wall from observations both at a distance–from looking online at Facebook and watching others–and [*39] up close on her two or three successful climbs prior to her injury; and (3) was aware that a person could drop down from the wall, as Plaintiff had herself already jumped down from the wall of her own accord.
In response, Plaintiff fails to raise a genuine issue of material fact. Steep Rock Bouldering’s climbing wall is of an average height for bouldering walls according to Dr. Richards. Dr. Nussbaum’s assertion that climbing on any wall of a height of eight feet or more requires a harness or similar device is conclusory, unsupported by citation, and, ultimately, unavailing.
To require harnesses and ropes at Steep Rock Bouldering would fundamentally change the nature of the sport. Bouldering is a type of climbing that does not require ropes or harnesses. The Court finds that injury from falling is a commonly appreciable risk of climbing–with or without harnesses, ropes, or other safety gear–and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively [*40] make the sport of bouldering illegal in this state. To do so would fly in the face of the reasoning in Trupia that such “athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and . . . that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.” (14 NY3d at 395-96.)
In dismissing the instant case, the Court notes that the facts here are distinguishable from those in Lee v Brooklyn Boulders, LLC ( NYS3d , 2017 NY Slip Op 08660, 2017 WL 6347269, *1 [2d Dept, Dec. 13, 2017, index No. 503080/2013]) and McDonald v. Brooklyn Boulders, LLC (2016 N.Y. Misc. LEXIS 5211, 2016 WL 1597764, at *6 [Sup Ct, Kings County Apr. 12, 2016]). Both cases involved plaintiffs who were injured when they jumped down from the climbing wall–at the same defendant’s bouldering facility–and each plaintiff’s foot landed in a gap between the matting. In both cases, summary judgment was denied because there was a genuine issue of material fact concerning whether the gap in the matting presented a concealed risk. Here, Plaintiff does not contend that she was injured by such a concealed risk, but essentially argues she should not have been allowed to [**21] voluntarily engage in the sport of bouldering. For the reasons previously stated, this Court finds such an argument to be [*41] unavailing.
CONCLUSION
Accordingly, it is
ORDERED that Defendant Steep Rock Bouldering, LLC’s motion pursuant to CPLR 3212 for an order granting Defendant summary judgment against Plaintiff Min-Sun Ho is granted; and it is further
ORDERED that the action is dismissed; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of Defendant; and it is further
ORDERED that counsel for movant shall serve a copy of this order with notice of entry upon Plaintiff and upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158M), who are directed to mark the court’s records to reflect the dismissal of this action.
The foregoing constitutes the decision and order of the Court.
Dated: January 2, 2018
New York, New York
/s/ Robert D. Kalish, J.S.C.
HON. ROBERT D. KALISH
Under California law, you assume the risk of getting hit by a toboggan being towed by a snowmobile while snowboarding.
Posted: January 15, 2018 Filed under: Assumption of the Risk, California, Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, Checklist, Collision, discarded, driver, Emergency, hit, Inherent Risk, instructional error, lift, patrol, patroller, Primary Assumption of Risk, Resort, risks inherent, secondary, Secondary Assumption of Risk, siren, Ski, ski area, Ski Resort, Skier, skiing, Slope, Snowboarder, snowboarding, Snowmobile, Sport, suppression, Toboggan, tower, unreasonably Leave a commentBoth sides of this case created problems for themselves, and both sides stretched their credibility. In the end, it was easy for the plaintiff to lose because of that credibility gap created by the facts and when those facts were reported.
Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204
State: California
Plaintiff: Dominique Forrester
Defendant: Sierra at Tahoe
Plaintiff Claims: General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability
Defendant Defenses: assumption of the risk
Holding: for the defendant
Year: 2017
Summary
Snowboarder loses suit claiming a toboggan being towed by a snowmobile hit him on a beginner slope. By reporting the incident after he left the resort, he created a credibility issue.
In the end, getting hit by a toboggan being towed by a snowmobile is a risk you assume when skiing in California.
Facts
The facts in a case like this are always screwy to begin with and in my opinion, screwy from both sides of the litigation. The plaintiff and a friend were snowboarding. The plaintiff was filming his friend doing jumps. After the last jump, the plaintiff snowboarded toward the bottom which was on a beginner run waiting for his friend. While waiting, he heard someone yell, and he was hit by a toboggan. He hit his head suffering injuries. The plaintiff thought he saw a ski patroller driving away with the toboggan attached to the snowmobile. The fall broke some of his equipment also.
His friend saw the incident and stated that the driver was wearing a different uniform from what the plaintiff reported. Neither of them saw lights nor a flag on the snowmobile.
The plaintiff and his friend did not report the injury but drove home. On the way home they decided the plaintiff should call Sierra. He did and got a recording machine. He then started vomiting.
The next day the plaintiff hurt all over. Eventually, he was diagnosed with a concussion, a whiplash and disc degeneration.
The plaintiff called the ski area the next day and was told there was no one for him to talk to. He was to call back Wednesday. Wednesday, he called back and filed a report.
Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile” (patroller), got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.
The same day the plaintiff contacted an attorney.
The ski area investigated the claim. No ski patrollers or terrain park employees knew of any collision with a toboggan and a snowboarder.
MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they spoke recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.
Obviously, the ski area felt that no collision or accident had occurred. The case went to trial, and the plaintiff lost because the jury found he had assumed the risk of injuries.
Normally, juries like judges are asked to assemble, to a limited extent, the facts upon which they base their decision. In this case that was not done.
As we noted earlier, this case is unusual among liability cases in general because the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be.
The plaintiff appealed the decision.
Analysis: making sense of the law based on these facts.
The court first looked into the issues surrounding the snowmobile. The defendant kept a checklist that was to be completed each day before the snowmobile was ridden. The checklist was not kept after it was completed.
Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded daily unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found.
The day in question was one of the busiest of the year. The ski area employees testified that it was so buy, it would have been impossible to drive a snowmobile through the crowd on the slope in question.
The court then reviewed the evidence of the competing expert witnesses, both of whom offered testimony that at best seems stretched and will be ignored here and was ignored a lot by the court.
The court then reviewed the defenses offered by the ski area, starting with Primary Assumption of the Risk.
“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.”
Ski areas and other operators, sponsors and instructors of recreational activities have no duty to eliminate the risk. They do have a duty not to increase the risk beyond those inherent in the sport. The court based on this analysis looked at whether a toboggan is an inherent risk of skiing and boarding and found it was.
We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.
On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.
In both examples, the court compared the collisions to collisions with stationary objects, a lift tower and a tree.
The court looked at the facts in this case and concluded the incident was a collision with a toboggan, rather than a toboggan hitting a snowboarder. I suspect the facts in the two cases the court reviewed would have different conclusions if the lift tower or the tree had hit the skiers?
To reach this conclusion, the court went back to the statements of the experts of both the plaintiff and the defendant who testified that snowmobiles were a standard practice in the sport of skiing.
There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd.
The court then also looked at Secondary Assumption of Risk.
The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). In the latter class of cases, we concluded; the issue could be resolved by applying the doctrine of comparative fault, and the plain-tiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiffs knowing and voluntary acceptance of the risk functions as a form of contributory negligence.
The court held that discussing secondary assumption of risk was not necessary in this case because the jury found the defendant was not liable because of primary assumption of the risk.
The plaintiff also argued that an evidentiary ruling should have been made in the plaintiff’s favor because the defendant failed to keep the snowmobile checklist. The rules and laws of what evidence should be kept or can be destroyed to have changed dramatically in the past twenty years, and this area of law is a hot bed of litigation and arguments.
However, the court moved around this issue because the checklist was destroyed every day. The defendant gave the plaintiff a list of the possible drivers of snowmobiles at the resort. Because the checklist was only used by the first driver, and the snowmobile could have been ridden by someone other than the driver who completed the checklist, the court found it was not critical to the case. The plaintiff request of the information had occurred after the checklist had been destroyed as was the habit for the defendant.
So Now What?
First being hit by an object being towed by a snowmobile inbounds in California is an assumed risk. This is the first case f this type I have found. Every other case where the defendant has been held not liable because of assumption of the risk at a ski area was based on the skier or boarder hitting a fixed object.
Second, credibility maybe all you have in some cases. Consequently, you never want to stretch or destroy your credibility, and you do not want your experts to do the same.
Last, if you are hurt at a resort, get help at the resort. Some of the plaintiff’s injuries might have been mitigated if treated immediately.
However, all the above issues could be crap, if the jury ruled not because they believed the plaintiff assumed the risk, but because they did not believe the plaintiff at all.
What do you think? Leave a comment.
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Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204
Posted: December 19, 2017 Filed under: California, Legal Case, Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, Checklist, Collision, discarded, driver, Emergency, hit, Inherent Risk, instructional error, lift, patrol, patroller, Resort, risks inherent, secondary, siren, Ski, ski area, Ski Resort, Skier, skiing, Slope, Snowboarder, snowboarding, Snowmobile, Sport, suppression, Toboggan, tower, unreasonably Leave a commentForrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204
Dominique Forrester, Plaintiff and Appellant, v. Sierra at Tahoe, Defendant and Respondent.
C079107
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
2017 Cal. App. Unpub. LEXIS 5204
July 27, 2017, Opinion Filed
NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
SUBSEQUENT HISTORY: Review denied by Forrester v. Sierra at Tahoe, 2017 Cal. LEXIS 7927 (Cal., Oct. 11, 2017)
PRIOR HISTORY: [*1] Superior Court of El Dorado County, No. PC20120138.
CORE TERMS: snowmobile, collision, ski, inherent risk, snowboarding, sport, checklist, toboggan, driver, ski resort, skiing, unreasonably, assumption of risk, slope, secondary, emergency, resort, ski area, skier, hit, snowboarder, patroller, patrol, risks inherent, instructional error, lift, discarded, siren, suppression, tower
JUDGES: Duarte, J.; Butz, Acting P. J., Mauro, J. concurred.
OPINION BY: Duarte, J.
OPINION
Plaintiff Dominique Forrester was injured while snowboarding at defendant ski resort Sierra-at-Tahoe (Sierra) on March 7, 2010. He claimed he was hit by a toboggan, that in turn was being towed by a snowmobile, while on a beginner slope. The trial court found assumption of the risk applied to the claim, and the case went to the jury to answer the question of whether Sierra unreasonably increased the risk to Forrester above that already inherent in the sport of snowboarding. By a vote of 10 to 2, the jury answered “no.”
On appeal, plaintiff contends the trial court erred in ruling that primary assumption of the risk applied to this case, and instructing the jury accordingly. Plaintiff argues a collision with a snowmobile is not an inherent risk of snowboarding. He further contends the court incorrectly instructed the jury on secondary assumption of the risk, and erred in refusing to instruct on the willful suppression of evidence.
As we will explain, this case is unusual among liability cases in general because the very existence of the alleged accident–the collision itself–was [*2] and remains in dispute. We first conclude that unwanted contact with a snowmobile (here encompassing a towed toboggan), on a ski slope at a ski resort, is indeed an inherent risk of snowboarding. Although Forrester argues the particular alleged circumstances of the operation of the snowmobile on the day of the incident took the collision outside the boundaries of inherent risk, that issue was tendered to the jury and the jury found Sierra did not unreasonably increase the risks already inherent in snowboarding
We assume instructional error on secondary assumption of the risk but find no prejudice, and conclude that the evidence did not support an instruction on willful suppression of the evidence.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Alleged Accident
On Sunday, March 7, 2010, Forrester met his high school friend, Franklin Medina, for a day of snowboarding at Sierra. That day was the busiest of the year, with about 6,370 people at the resort. Forrester described himself as an intermediate snowboarder who does not perform jumps. He did not wear ear buds or ear phones while snowboarding and did not recall ever seeing a snowmobile in a ski area before that [*3] day.
At about 3:30 or 4:00 p.m., Forrester was filming Medina doing jumps. After the last jump, Medina snowboarded down the run to wait for Forrester. The bottom area of the ski run is known as Broadway; it is a beginner run near the teaching area and close to the lodge.
According to Forrester, as he began to snowboard down Broadway, he heard someone yell “hey.” He tried to turn around and was hit in the back of the legs. He went airborne and landed on his bottom and then hit his head. His goggles cut his face. He was hurt and dizzy. The snowmobile was 30 yards away when Forrester first saw it, and the driver “took off.” Forrester thought the driver’s jacket was orange or red, but he was not sure. He assumed only ski patrollers, who wear orange-red jackets, operated snowmobiles. He thought the snowmobile driver was wearing a beanie. Forrester did not hear the snowmobile. After the collision, Forrester slid down the mountain, and some other snowboarders asked if he was okay. He did not realize his equipment was broken until he later responded to special interrogatories.
Medina claimed he saw the incident, and that the snowmobile was in front of Forrester’s path and pulling a toboggan. [*4] He saw the toboggan clip Forrester’s feet and “take him out.” The snowmobile was going two or three times faster than Forrester. Forrester took his equipment off and walked down the mountain. Medina claimed the driver of the snowmobile was wearing a black and purple vest like the ones worn by terrain park employees (rather than the orange and red jacket described by Forrester). Medina did not see any lights on the snowmobile and did not notice a flag, nor did he hear a siren.
Forrester did not report the accident, but tried to “walk off” the injury. On the way home Forrester and Medina discussed that Forrester had been hit and decided they should call Sierra. Forrester called just after 5:00 p.m. and got an answering machine. Forrester began vomiting and they stopped in Placerville where Medina took pictures of his face. Medina drove Forrester home.
The next day, Monday, Forrester hurt all over his body, including a bad headache. He went to his doctor who ordered a CT scan, the results of which were normal. Over the next few days, Forrester’s back began to hurt. He was diagnosed with a concussion and a whiplash back injury. Forrester was later diagnosed with disc degeneration with a [*5] prognosis of ongoing pain.
Reporting the Accident
Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile (patroller),” got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.
Forrester contacted an attorney the same day he spoke with MacClellan. Forrester sent MacClellan a written report, in which he stated he “was involved in a collision with a Sierra Ski Patrol Officer (Ski Patroller) whom [sic] was driving a snow mobile, towing a stretcher. . . . The Ski Patroller was apparently attempting to cross from my left, which was behind me (I have a ‘regular’ board stance), across my face, to the right of me when he collided into me from my blind side. As a result I flew over [*6] him and crashed very hard into the mountain. I suffered a head injury, as well as whiplash, and subsequently blacked out for a short period of time.” The statement continued that Forrester did not see the “patroller” and heard no sirens; he heard only a brief “hey” right before the impact. His friend Medina had witnessed the collision and could not believe it; other snowboarders asked if Forrester was okay, but the ski patrol did not.
MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they had spoken recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.
The Lawsuit and Trial
Forrester brought suit against Sierra for general negligence and [*7] premises liability. The complaint stated: “Included in the Cause of Action for General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability.” Forrester took some theories of liability “off the table” and the trial court granted defendant’s motion for nonsuit as to others. As we explain in more detail, post, the matter was submitted to the jury as an assumption of the risk case, with the jury asked to determine whether Sierra unreasonably increased the inherent risks of snowboarding
Snowmobile Evidence
Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded on a daily basis unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found. At trial, Sierra stipulated that anyone [*8] driving a snowmobile at the resort that day would have been employed by Sierra. The checklist would not necessarily reveal the identity of the driver of the snowmobile in any event, because once the snowmobile is checked out others may use it without completing a new checklist. Sierra maintains no record showing who is using a snowmobile at a particular time on a specific date.
A snowmobile is a loud machine; its sound is comparable to a motorcycle or lawnmower. The flashing lights are always on if the snowmobile is running, but the siren can be turned on and off. It is against Sierra’s policy to operate a snowmobile without a siren when guests are present. The snowmobile has an attached fiberglass pole with a flag atop, to aid in visibility. March 7, 2010, was a peak day and there was a blackout on the use of snowmobiles in the ski areas except for emergencies. Rice defined emergencies as ski patrol rescue, lift evacuation, a fire or gas leak on the hill, and to carry law enforcement to an altercation. There were no documented emergencies the day of the incident. MacClellan testified that with 6,000 people on the ski slopes, it would be “virtually impossible” to drive a snowmobile [*9] through the Broadway area.
The ski patrol uses orange toboggans for rescue, which are stored in different locations on the mountain and used to transport injured guests. Patrollers take them uphill by chair lift or by snowmobile. Snowmobiles are rarely used to take a toboggan down the mountain; usually a patroller skis them down. Snowmobiles do not tow injured guests in a toboggan.
Plaintiff’s Experts
In addition to medical experts, plaintiff called a ski safety consultant and an accident reconstructionist. Richard Penniman testified as an expert on ski area mountain operations. He testified it was below industry standard to have a snowmobile on the ski slopes when a large number of people are present. On a run like Broadway that is designed for beginners, it was very dangerous to have anything present other than skiers and snowboarders. It was below the industry standard to use the Broadway area as a snowmobile route. Penniman added snowmobiles are only a convenience and a ski resort can operate without them. He conceded, however, that it was standard practice for ski areas to use snowmobiles and agreed they were extremely useful in an emergency where the risk they create might be worth [*10] it. He agreed with the policy of Sierra-at-Tahoe not to use snowmobiles on busy days except in the case of an emergency. In Penniman’s opinion, Sierra’s conduct in operating a snowmobile the day of the incident increased the risk of injury to skiers and snowboarders.
Jesse Wobrock, an accident reconstructionist and bioengineer, prepared an animation of the accident. He testified the accident had “an injury mechanism for both the lumbar spine and the traumatic brain injury.” The damage to Forrester’s left binding was consistent with the height of the toboggan, as was the orange color transfer on the binding. Wobrock testified the physical evidence corroborated the eyewitness testimony. In his opinion, the snowboard went between the tread of the snowmobile and the toboggan; the toboggan ran over the snowboard.
Defense Case
John Gardiner, a forensic engineer and biomechanic, testified for the defense. He opined there was neither consistent testimony nor sufficient physical evidence to conclude what occurred that day. Gardiner testified that if Forrester’s left binding made contact with a toboggan, the contact occurred at the rear portion of the toboggan. If the contact had been near the [*11] front of the toboggan, the snowboard would have hit the treads of the snowmobile and caused damage; there was no evidence of damage to the front of the snowboard. In Gardiner’s opinion, the force involved in Forrester’s fall would not have caused a lumbar disc injury and a concussion. Gardiner also testified that Medina’s view of the accident would have been obstructed by the snowmobile and its driver and that Wobrock’s animation of the incident was inconsistent with the laws of physics and Forrester’s testimony.
The defense pointed out the many inconsistencies between Medina’s deposition and his trial testimony, such as where he dropped off Forrester, whether Forrester wore a helmet, Forrester’s level of skill on a snowboard, the time they finished snowboarding, and whether Medina saw the snowmobile before the collision. Medina had changed his story only after talking to Forrester. The defense argued the differences between the testimony of Medina and Forrester as to the color of the snowmobile, the clothing of the driver, the location of the accident, and the timing showed that Forrester failed to carry his burden of proof as to what happened. The defense questioned how Forrester [*12] could fail to see or hear the snowmobile and offered three possibilities: (1) the collision had not happened; (2) Forrester was not paying attention; or (3) Forrester saw the snowmobile, but not the toboggan and tried to cut behind. The defense argued number three was the most reasonable and Forrester did not report the accident because he felt it was his fault.
Instructions
As relevant here, the court instructed the jury as follows:
“[CACI No.] 410. Dominique Forrester claims he was harmed while participating in snowboarding at the snow — at the Sierra at Tahoe Ski resort. To establish this claim Dominique Forrester must prove all of the following:
“1. That Sierra at Tahoe was the owner of the ski resort and that its employee was operating the snowmobile in issue in this case. Sierra at Tahoe admits that it is the owner of the ski resort and only its employee would have had access to and would have been operating a snowmobile on the ski resort.
“2. Dominique Forrester must also prove that Sierra at Tahoe unreasonably increased the risk to Dominique Forrester over and above those inherent in snowboarding;
“3. And Dominique Forrester must prove that Dominique Forrester was harmed; and lastly [*13]
“4. That Sierra at Tahoe’s conduct was a substantial factor in causing Dominique Forrester’s harm.
“[Modified CACI No.] 405. Sierra at Tahoe claims that Dominique contributed to his harm. To succeed on this claim, Sierra at Tahoe must prove the following:
“1. That Dominique Forrester assumed the risks that led to his injury; and
“2. That Dominique Forrester’s assumption of those risks was a substantial factor in causing his harm.
“If Sierra at Tahoe proves the above, Dominique Forrester’s damages are reduced by your determinations of the percentage of Dominique Forrester’s responsibility. I will calculate the actual reduction.”
Verdict and Motion for New Trial
During deliberations, the jury asked for a definition of “unreasonable” and to have Rice’s testimony about reports of emergencies that day reread. With the parties’ approval, the court responded to the first request as follows: “‘Unreasonable’ – is conduct that is contrary to conduct that a prudent person would exercise in the same or similar circumstances e.g. conduct that is careless, irrational, foolish, unwise, senseless, immoderate, exorbitant or arbitrary under the circumstances.”
By a vote of 10 to 2, the jury found Sierra did [*14] not unreasonably increase the risks to Forrester over and above those inherent in snowboarding in a ski area. Because the jury’s answer to this first question was “no,” it did not answer any additional questions contained in the verdict forms.
Forrester moved for a new trial, contending assumption of the risk did not apply to the case, there were evidentiary errors, and the court erred in not instructing on suppression of evidence. The court denied the motion.1
1 The record does not contain an order denying the motion. Under Code of Civil Procedure section 660, if there was no order, the effect is a denial of the motion.
DISCUSSION
I
Assumption of the Risk
A. The Law
“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” (Gregory v. Cott (2014) 59 Cal.4th 996, 1001, 176 Cal. Rptr. 3d 1, 331 P.3d 179.) “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.” (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751, 33 Cal. Rptr. 2d 732.)
“The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or [*15] reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration–or cause abandonment’ of the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156, 150 Cal. Rptr. 3d 551, 290 P.3d 1158.) “[U]nder the primary assumption of risk doctrine, operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity. (Id. at p. 1162.)
“Snowboarding is a classic example of a sport that requires participants to assume considerable risks.” (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 603, 13 Cal. Rptr. 3d 370 (Vine).) Courts have recognized many risks inherent in skiing and snowboarding. “Those risks include 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. They also include 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, 37 Cal. Rptr. 3d 863.)
Whether the assumption of risk doctrine applies in a particular case is a question of law.”2 (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 227, 132 Cal. Rptr. 3d 567.)
2 Although Forrester recognizes the question of whether assumption of the risk applies is a question of law reviewed de novo, he devotes a considerable portion of his briefing to arguing the trial court’s two analyses, first before trial and then on the motion for a new trial, were incorrect. “In reviewing a trial court’s decision, we review the result, not the reasoning.” (Florio v. Lau (1998) 68 Cal.App.4th 637, 653, 80 Cal. Rptr. 2d 409.)
B. Application to this Case
As we noted earlier, this case is unusual among liability cases in general because [*16] the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be. With this in mind, we turn to Forrester’s first claim of error.
Forrester contends a collision with a snowmobile is not an inherent risk of snowboarding. He argues that although some collisions–such as with trees or other skiers or snowboarders–are inherent risks, the line should be drawn at a collision between an individual and a motorized vehicle. He asserts assumption of the risk has no role in the circumstances he claims were present here: an unmarked snowmobile with no lights, siren or flag, operated by a non-safety employee on a busy beginner slope, contrary to the safety policies of the ski resort.
Sierra counters that the circumstances Forrester claims were present here, outlined immediately above, would have unreasonably increased the risks undertaken by Forrester had the jury found the circumstances were as Forrester alleged. Sierra [*17] argues that it is apparent from the jury’s “no” vote that it found circumstances more closely aligned to those alleged by the defense, such as the absence of any collision (and even the absence of any snowmobile) whatsoever and other facts favorable to Sierra.
We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.
On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.
In Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 45 Cal. Rptr. 2d 855 (Connelly), the plaintiff collided with an unpadded ski lift tower while skiing. In affirming summary judgment for the defendant, we found this risk was inherent in the sport, and the obvious danger of the tower served as its own warning. (Id. at p. 12.) In concluding that contact with the tower was an inherent risk of the sport, the Connelly court relied on Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 266 Cal. Rptr. 749, where a skier collided with a tree. Danieley, in turn, relied on a Michigan statute that set forth certain inherent risks of skiing, including both trees and “‘collisions with ski lift towers and their components'” along with properly marked or plainly visible “‘snow-making or snow-grooming [*18] equipment.'” (Id. at p. 123.) “[B]ecause the Michigan Ski Area Safety Act purports to reflect the pre-existing common law, we regard its statutory pronouncements as persuasive authority for what the common law in this subject-matter area should be in California.” (Ibid.)
In Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 41 Cal. Rptr. 3d 389 (Souza), a child skier collided with a plainly visible aluminum snowmaking hydrant located on a ski run. Following Connelly, we affirmed summary judgment for the defendant, finding the snowmaking hydrant was visible and a collision with it was an inherent risk of skiing. (Id. at p. 268.)
A snowmobile is not one of the risks specifically identified in the Michigan Ski Area Safety Act, and we have not found a published case specifically deciding whether a collision on a ski slope with a snowmobile is an inherent risk of skiing or snowboarding. Nevertheless, collision with certain vehicles has been included. While Souza involved only stationary equipment, the Michigan Ski Area Safety Act–which Danieley and Connelly accepted as reflecting the common law–included a collision with snow-grooming equipment as an inherent risk. Thus, collisions with some vehicles are recognized as inherent risks of the sports of skiing and snowboarding.
We recognize that assumption [*19] of the risk applies only to risks that are necessary to the sport. (Souza, supra, 138 Cal.App.4th at p. 268.) In Souza, snowmaking equipment was necessary to the sport of skiing because nature had failed to provide adequate snow. (Ibid.) As in Souza, we find the following quote from Verro v. New York Racing Ass’n, Inc. (1989) 142 A.D.2d 396, 400, 536 N.Y.S.2d 262 apt: “As is at least implicit in plaintiff’s argument, if only the risks of ordinary and necessary dangers inherent in a sport are deemed assumed, the doctrine of [primary] assumption of risk . . . would not apply to obvious, known conditions so long as a defendant could feasibly have provided safer conditions. Then, obviously, such risks would not be ‘necessary’ or ‘inherent’. This would effectively emasculate the doctrine, however, changing the critical inquiry . . . to whether the defendant had a feasible means to remedy [the dangers].”
Forrester’s expert Penniman claimed snowmobiles were merely a convenience and a ski resort could operate without them. He also testified, however, that the use of snowmobiles was a standard practice at ski resorts. Although critical of their overuse, Penniman recognized their usefulness in an emergency. He agreed with Sierra’s policy, which permitted snowmobiles to be used on the ski slopes in cases of emergency, [*20] even on the busiest days. Thus Penniman agreed generally that the use of snowmobiles was necessary to ski resorts, although he disputed the specific circumstances under which that use might be warranted.
There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317, 79 Cal. Rptr. 2d 775.
At least one unpublished federal case has found a collision with a snowmobile to be an inherent risk of skiing or snowboarding. In Robinette v. Aspen Skiing Co., L.L.C. (D. Colo., Apr. 23, 2009, No. 08-CV-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, affd sub nom. Robinette v. Aspen Skiing Co., L.L.C. (10th Cir. 2010) 363 Fed.Appx. 547, the court found “the specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the ‘risks of skiing/riding.'” (Id. at p. *7.) The court reasoned that since “the legislature has seen fit to specifically enact safety measures to prevent skier-snowmobile collisions, one can [*21] hardly argue that such a collision somehow falls outside of [plaintiff’s] express assumption of ‘all risks of skiing.'”3 (Ibid.)
3 Although California has no similar regulation of snowmobiles at ski slopes, the requirements of the Colorado law are similar to Sierra-at-Tahoe’s policy for snowmobile operation. “All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following: One lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.” (Colo. Rev. Stat. Ann. § 33-44-108, subd. (3).)
Based on the foregoing, we conclude the trial court did not err in ruling that primary assumption of the risk applies in this case and instructing the jury accordingly. To the extent that the evidence showed a snowmobile was operating at the resort and involved in an collision with Forrester that day, its presence and that of related equipment (here apparently a towed toboggan) on the slope was an inherent risk of snowboarding at the resort. However, that risk may well have been unreasonably increased by Sierra if the specific circumstances alleged by Forrester regarding the snowmobile’s use at the time of the alleged collision were believed by the jury. But the jury was presented with a variety of competing scenarios as to what happened at the resort that day. Although we do not know which evidence it credited and which it did not, we know that it did not consider the specific circumstances of the snowmobile’s operation that day to have unreasonably increased the risk already present from the necessary use of snowmobiles at resorts.4
4 The better practice in cases such as this one, where key facts–here even the preliminary fact as to whether there was a collision at all, let alone a collision between a snowboarder and a snowmobile towing a toboggan–are in dispute, is to craft the special verdict form to require the jury to make preliminary factual findings, here such as whether the alleged accident occurred at all and the particulars, if so. (See CACI No. 410, Directions for Use [“There may also be disputed facts that must be resolved by a jury before it can be determined if the doctrine applies”], citing Shin v. Ahn (2007) 42 Cal.4th 482, 486, 64 Cal. Rptr. 3d 803, 165 P.3d 581.)
In arguing that a collision [*22] with a motorized vehicle is not an inherent risk, Forrester relies on out-of-state cases, some unpublished. We find those cases distinguishable or not persuasive. In Verberkmoes v. Lutsen Mountains Corp. (D. Minn. 1994) 844 F.Supp. 1356, a skier collided with an unmarked all terrain vehicle (ATV) parked on or near a groomed trail. The court denied summary judgment for the defendant, finding the hazard of the parked ATV was within the control of the ski resort, not an obvious risk like a lift tower, and not a hidden risk like a snow-covered stump. (Id. at pp. 1358-1359.) Defendant’s “parking of the ATV on the trail during routine maintenance of the ski slope cannot be deemed, as a matter of law, an inherent risk of skiing.” (Id. at p. 1360.) Rather, it was “a danger that reasonable prudence on the part [of defendant] would have foreseen and corrected or at least placed a warning for skiers.” (Id. at p. 1359.) We find Verberkmoes distinguishable, largely because the decision was based on where the ATV was parked; the ski resort could have easily parked it elsewhere or warned against the hazard. Here, the question was whether the resort’s use of snowmobiles on the ski slopes and consequential possibility of contact with snowboarders was an inherent risk of snowboarding.
In Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (D. Colo. 2015) 132 F.Supp.3d 1310, the defendant had argued that [*23] a collision with a snowmobile is an inherent danger and risk of skiing. The court had rejected this argument twice before, each time concluding “whether a collision with a snowmobile is an inherent danger or risk of skiing is not necessarily a question of law because what is an inherent danger or risk of skiing is not limited to the circumstances specifically enumerated in the [Ski Safety Act].” (Id. at p. 1316.) The court declined to address the argument again. (Ibid.)
We find this conclusory analysis unhelpful. For the reasons stated ante, we find a collision with a snowmobile is an inherent risk of snowboarding. As to whether this particular collision was the result of the inherent risk, the jury was properly tasked with determining whether Sierra’s operation of the snowmobile unreasonably increased the risk already inherent in snowboarding. This determination governed whether this particular collision was barred by the assumption of the risk doctrine.
Forrester also relies on an unpublished case from the state of Ohio, Coblentz v. Peters 2005 Ohio 1102, 2005 Ohio App. LEXIS 1073, that found use of a motorized golf cart was not “an actual part of the sport of golf,” so the risk of being struck and injured by a golf cart “is not an ordinary risk of the game.” [*24] (Id. at ¶ 21.) To the limited extent this case is analogous, we decline to apply its narrow analysis to the sport of snowboarding and the associated risk of encountering the resort’s necessary equipment when on the ski slopes. (See Souza, supra, 138 Cal.App.4th at p. 269 [finding snowmaking equipment necessary to the sport of skiing].)
As we have noted, unlike many assumption of the risk cases, including those cited ante, here there is a genuine factual dispute as to what happened to Forrester and caused his injuries. The jury needed to resolve this factual dispute in order to determine whether Sierra unreasonably increased the inherent risk. Accordingly, the issue of whether recovery is barred by assumption of the risk could not be determined as a matter of law, such as by a motion for summary judgment, as is often the case. Here, we need not decide if Forrester’s specific collision was an inherent risk, but only the broader question of whether a collision with a snowmobile operated on the ski slopes of a resort is an inherent risk of snowboarding. If so, recovery is still possible if Sierra unreasonably increased the risk by the specific circumstances surrounding its operation of the snowmobile.
“Although defendants generally [*25] have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316, 11 Cal. Rptr. 2d 2, 834 P.2d 696.) Numerous cases have pondered the factual question of whether various ski resorts have increased the inherent risks of skiing or snowboarding. (See Vine, supra, 118 Cal.App.4th at p. 591 [redesign of snowboarding jump]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 366, 114 Cal. Rptr. 2d 265 [construction of the unmarked race start area on the ski run]; Van Dyke v. S.K.I. Ltd., supra, 67 Cal.App.4th 1317 [placement of signs in ski run].)
Forrester contends that even if the ski patrol’s use of a snowmobile is necessary to support the sport of snowboarding, the evidence here showed the snowmobile was not used for that purpose. Indeed, he claims that because the members of the ski patrol on duty that day denied being involved in a collision, the evidence established that the snowmobile was driven by a non-safety employee. He argues the trial court was required [*26] to resolve factual questions as to whether a member of the ski patrol was using the snowmobile before it determined whether assumption of risk applied.
We disagree with Forrester that the trial court was required to resolve these factual questions before submitting the case to the jury. Resolution of the factual issues as to how and by whom the snowmobile was operated “requires application of the governing standard of care (the duty not to increase the risks inherent in the sport) to the facts of this particular case–the traditional role of the trier of fact.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 112, 86 Cal. Rptr. 3d 588.) “Our conclusion it is for the trier of fact to determine whether Vela breached his limited duty not to increase the risks inherent in the sport of volleyball finds solid support in the Supreme Court’s most recent sports injury, primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482 . . . . In Shin the Supreme Court affirmed the trial court’s denial of a motion for summary judgment brought by a golfer who had struck one of his own playing partners with a tee shot. The court held the primary assumption of the risk doctrine regulates the duty a golfer owes both to playing partners and to other golfers on the course, found being hit by a stray [*27] golf shot was an inherent risk of the sport and concluded ‘golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.”‘ [Citation.] However, the Court also held whether the defendant had breached that limited duty of care by engaging in reckless conduct was a question for the trier of fact: ‘In determining whether defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. . . . [¶] Many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. . . . [¶] . . . This record is simply too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly. This will be a question the jury will ultimately resolve based on a more complete examination of the facts.’ [Citation.]” (Luna, at pp. 112-113.) “In light of the Supreme Court’s decision in Shin, we conclude as the Luna court did, that resolving the question of whether [defendant] increased the risk of falling is properly decided by the trier [*28] of fact.” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1062, 183 Cal. Rptr. 3d 566.)
Forrester’s argument about the circumstances of the snowmobile’s use that day is premised upon the jury’s accepting his version of events–that a snowmobile hit him from behind, while driven by a non-safety employee who was not responding to an emergency and who was operating without lights, siren, or flag and contrary to numerous safety policies of Sierra. In short, Forrester assumes that the snowmobile had no legitimate reason to be on Broadway at the time of the incident. But the state of the evidence was such that the jury could decide otherwise. Due to Forrester’s failure to report the accident when it happened, the conflicting testimony of Forrester and Medina, the conflict in expert testimony as to how a collision would have occurred and what caused Forrester’s injuries, and the absence of any independent witness who saw or even heard about the accident, the jury could have rationally concluded the accident did not happen at all. Alternatively, the jury could have concluded that Forrester hit the toboggan out of carelessness or recklessness, Forrester’s injuries were not from the collision, or simply that Forrester failed to prove his version of the accident.
This [*29] case turned in large part on the jury’s assessment of credibility. There was evidence from which the jury could conclude that the incident occurred as described by Forrester and Medina, and that Sierra unreasonably increased its visitors’ inherent risk of a collision with a snowmobile accordingly–because a non-safety employee, not responding to an emergency, drove a snowmobile at significant speed across a beginner run on the busiest day of the year without using lights, siren or a flag, and in contravention of numerous safety policies. These circumstances, or any combination thereof, could certainly constitute an unreasonable increase of the inherent risk by Sierra. Forrester’s theory was tendered to the jury and the jury decided adversely to his argument. Forrester does not challenge the sufficiency of the evidence to support the verdict.
The trial court did not err in determining assumption of the risk applied and submitting the case to the jury on the question of whether Sierra unreasonably increased the risk inherent in the sport of snowboarding.
II
Instruction on Secondary Assumption of the Risk
A. Background
As we set forth ante, the jury was also instructed pursuant to CACI No. 405–the comparative [*30] fault instruction modified by the trial court–as to secondary assumption of the risk. The jury was told that in order for Sierra to succeed on its claim that Forrester contributed to his own harm, Sierra would need to prove both that Forrester assumed the risks that led to his injury and that Forrester’s assumption of those risks was a substantial factor in causing his harm.
The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). [Citation.] In the latter class of cases, we concluded, the issue could be resolved by applying the doctrine of comparative fault, and the plaintiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal. Rptr. 3d 103, 75 P.3d 30.)
“Secondary assumption [*31] of risk [arises] where a defendant breaches a duty of care owed to the plaintiff but the plaintiff nevertheless knowingly encounters the risk created by the breach. Secondary assumption of risk is not a bar to recovery, but requires the application of comparative fault principles.” (Connelly, supra, 39 Cal.App.4th at p. 11.)
B. Analysis
Forrester contends the special instruction on secondary assumption of the risk was incorrect because it omitted the requirement that a plaintiff “knowingly” or “voluntarily” accept the increased risk, and because the court failed to set it apart from the instruction related to primary assumption of the risk. Forrester contends the error prejudiced him because it confused the jury on the law.
As Sierra does not defend the instruction, we will assume arguendo that it is incorrect for omitting “knowingly” or “voluntarily.” We reject, however, the argument that it was error to instruct on secondary assumption of the risk immediately after instructing in the language of CACI No. 410 on primary assumption of the risk. Each instruction begins by noting the party whose claim the instruction addresses and what each party must prove to succeed on its claim. The two claims are necessarily related. “Nevertheless, in [*32] certain circumstances primary and secondary assumption of risk are intertwined and instruction is required so the jury can properly determine whether the defendant did, in fact, increase the risks inherent in a hazardous sport so that secondary assumption of risk should be considered.” (Vine, supra, 118 Cal.App.4th at p. 592.)
“Cases like this one, where the plaintiff contends the defendant breached the duty not to increase the risks inherent in a hazardous sporting activity, present both aspects of the assumption of risk doctrine. If the plaintiff fails to show any increase in the inherent risks, or if the trial court determines that the only risks encountered were inherent in the sport, the defendant prevails based on primary assumption of risk. If the jury, properly instructed on the scope of the defendant’s duty, determines the defendant did increase the inherent risk, it then considers the plaintiff’s claim based on secondary assumption of risk as an aspect of the plaintiff’s comparative fault.” (Vine, supra, 118 Cal.App.4th at p. 593.)
“[T]here is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case [*33] ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580, 34 Cal. Rptr. 2d 607, 882 P.2d 298 (Soule).)
“Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule, supra, 8 Cal.4th at p. 580.) Actual prejudice must be assessed in the context of the entire record using a multifactor test. (Ibid.) “Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)
Forrester contends the record demonstrates prejudice because there was strong evidence that Sierra increased the risk by its operation of a snowmobile that day, the jury deliberated for two full days, and the request for a definition of “unreasonable” suggests the jury was confused as to the law.
We disagree that the record shows it was “probable” that the instructional error “prejudicially affected the verdict.” (Soule, supra, 8 Cal.4th at p. 580.) As we have discussed, the evidence raised questions [*34] of witness credibility, and the jury was also called upon to consider conflicting expert testimony. The jury heard five days of evidence and deliberated for two days. In that circumstance, the jury’s two days of deliberation may suggest its “conscientious performance of its civic duty, rather than its difficulty in reaching a decision.” (People v. Walker (1995) 31 Cal.App.4th 432, 439, 37 Cal. Rptr. 2d 167 [six and one-half hours of deliberation after two and one-half hours of presentation of evidence].) The jury’s request for a definition of “unreasonable” and its request for a reread of evidence as to whether there was an emergency that day indicate the jury was most likely focused on Sierra’s conduct, not Forrester’s.
The most useful guide for the jury in sorting through the issues of primary and secondary assumption of the risk was the verdict form that separated the issues. The verdict form asked six questions; only if the jury answered yes to a question was it to proceed to the next question. The questions were: (1) Did Sierra or its employee unreasonably increase the risks inherent in snowboarding? (2) Was this unreasonable increase in the risks a substantial factor in causing harm to Forrester? (3) What are Forrester’s total damages? (4) Did [*35] Forrester assume the risks that led to his injury? (5) Was that assumption of risk a substantial factor in causing his injury? (6) What percentage of responsibility for Forrester’s harm do you assign to Sierra, to Forrester? The jury answered the first question “no” and therefore did not answer any other questions. Accordingly, the jury never reached the issue of secondary assumption of risk and thus never had to apply the challenged jury instruction. Forrester has failed to show prejudicial instructional error. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 206, 48 Cal. Rptr. 2d 448 [error to grant new trial due to instructional error when jury never reached issue covered by instruction]; Vahey v. Sacia (1981) 126 Cal.App.3d 171, 179-180, 178 Cal. Rptr. 559 [purported instructional error on damages was not prejudicial where jury found the defendant was not negligent and never reached the issue of damages].)
III
Refusal to Instruct on Willful Suppression of Evidence
A. Background
At trial, Forrester made much of the fact that the snowmobile’s driver was never identified, which he blamed on Sierra’s failure to retain the daily checklist completed by the driver who had taken out the snowmobile that day. Before trial, Forrester sought to admit Sierra’s special ski permit and winter operation plan from the United States Forest [*36] Service. He argued Sierra was required to maintain the checklist under the document retention policy set forth in that plan. The trial court excluded the document, ruling that whether Sierra had a contractual duty to retain the report was irrelevant, particularly because–given the evidence that the snowmobile could be used by multiple people in the same day–the checklist would not necessarily indicate who was driving a snowmobile at the time of the alleged accident. The court noted that Sierra had provided Forrester with a list of 19 authorized drivers.
Forrester requested that the trial court give CACI No. 204, which provides: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” The request was based on evidence that MacClellan failed to interview all 19 people authorized to use a snowmobile that day and the destruction of the checklist. The court denied Forrester’s request.
Forrester raised the failure to give CACI No. 204 in his motion for a new trial.
B. Analysis
Forrester contends it was error to refuse the requested instruction. For the first time on appeal, he asserts [*37] the snowmobile driver’s leaving the scene of the accident without identifying himself was sufficient evidence to support the instruction. As to the destruction of the checklist, the basis for instruction advanced at trial, Forrester argues there was no evidence the checklist was actually discarded, only that the practice was to discard the checklists daily. He contends he was prejudiced by lack of the instruction because he could not argue the presumption that the destroyed evidence was unfavorable to Sierra to offset the inability to identify the driver.
“A party is entitled to have the jury instructed on his theory of the case, if it is reasonable and finds support in the pleadings and evidence or any inference which may properly be drawn from the evidence.” (Western Decor & Furnishings Industries, Inc. v. Bank of America (1979) 91 Cal.App.3d 293, 309, 154 Cal. Rptr. 287.) An instruction on willful suppression of evidence is appropriate if there is evidence “that a party destroyed evidence with the intention of preventing its use in litigation.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434, 86 Cal. Rptr. 3d 457.)
First, Forrester did not rely at trial on the theory that evidence was destroyed when the snowmobile driver left without identifying himself. “‘A civil litigant must propose complete instructions in accordance with his or her theory of the litigation [*38] and a trial court is not “obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.” [Citations.]’ [Citation.]” (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653, 57 Cal. Rptr. 2d 525.) Thus we need not consider this new theory first advanced on appeal.
Further, the evidence established the checklist had been discarded shortly after the accident, before Forrester made his complaint. While there was no testimony from the person who discarded the checklist for that day and MacClellan testified he did not know if the specific checklist had been discarded, Rice testified the checklists were thrown out on a daily basis and MacClellan testified he knew they were thrown out shortly after they were filled out.
Forrester relies on Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 150 Cal. Rptr. 3d 861, claiming it is “right on point.” In Ventura, a negligent hiring and supervision case, the trial court gave the instruction at issue here based on testimony of the human resources director about redactions in personnel records and the defendant’s failure to interview certain witnesses during the investigation of plaintiff’s complaints. (Id. at p. 273.) The appellate court found no error, noting “Defendants were free to present the jury with evidence that (as counsel represented to the [*39] court), the redactions were only of telephone numbers, and that the failure to interview certain witnesses was proper, and to argue that evidence to the jury.” (Ibid.)
Ventura is distinguishable. There, the actions that supported the instruction occurred during the investigation of plaintiff’s claim, thus permitting an inference there was destruction of evidence to prevent its use in litigation. Here, the evidence was that the snowmobile checklists were routinely discarded each day long before the incident at issue here, unless information on the checklist triggered a need for maintenance. Because Forrester did not report his accident until multiple days had passed, Sierra did not become aware of Forrester’s claim until after the checklist at issue had been discarded. There was no evidence, either direct or from which the inference could be drawn, that the practice of discarding the checklists daily was intended to forestall their use in litigation.
The trial court did not err in declining to give CACI No. 204 on willful suppression of evidence.5
5 Further, Forrester’s claim of prejudice is unconvincing. The instruction permits the jury to draw the inference that the suppressed evidence would have been unfavorable to the party suppressing it. The checklist would have shown, at most, the name of the snowmobile driver. Sierra stipulated that the driver was one of its employees and provided Forrester with a list of authorized drivers.
DISPOSITION
The judgment is affirmed. Sierra shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/ Duarte, J.
We concur:
/s/ Butz, Acting P. J.
/s/ Mauro, J.
Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey
Posted: October 9, 2017 Filed under: Assumption of the Risk, New Jersey, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: actionable, advertised, advertisement, ascertainable loss, Assumption of risk, assumption of the risk, business practice, Camelback Mountain Ski Resort, Cammelback, Cause of action, cognizable, common law, concealment, Consumer, consumer fraud, Downhill, factual allegations, Immunity, Legal Case, material fact, merchandise, misleading, New Jersey, New Jersey Consumer Fraud Act, NJCFA, omission, Pennsylvania, presumed to know, quotation marks omitted, reasonable inference, residents, ski area, Ski Area Statutes, Ski Resort, Skier's Responsibility Act, skiing, Skiing / Snow Boarding, Snow, Sport, tort liability, unlawful practice Leave a commentThe lawsuit failed, this time. However, the failure was due to Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.
Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183
State: Pennsylvania, United States District Court for the Middle District of Pennsylvania
Plaintiff: Gyl Cole, Ronald Cole, her husband
Defendant: Camelback Mountain Ski Resort
Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act
Defendant Defenses: The statute did not apply
Holding: For the defendant
Year: 2017
Summary
In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act.
However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area.
Facts
The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.
While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.
The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear.
The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.
Analysis: making sense of the law based on these facts.
The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.
All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…”
Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the consumer put fraudulent practices or business on notice or out of business.
Under the act, an unlawful practice was defined as:
[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .
An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.”
A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.”
The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act.
The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act.
The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.
Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.
Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)
Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”
There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here.
Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”
The case was dismissed.
So Now What?
I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.
Remember, Marketing makes Promises Risk Management has to pay for©
What do you think? Leave a comment.
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Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183
Posted: October 8, 2017 Filed under: Assumption of the Risk, Legal Case, New Jersey, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: actionable, advertised, advertisement, ascertainable loss, Assumption of risk, assumption of the risk, business practice, Camelback Mountain Ski Resort, Cammelback, Cause of action, cognizable, common law, concealment, Consumer, consumer fraud, Downhill, factual allegations, Immunity, material fact, merchandise, misleading, New Jersey, New Jersey Consumer Fraud Act, NJCFA, omission, presumed to know, quotation marks omitted, reasonable inference, residents, Ski Resort, Skier's Responsibility Act, skiing, Snow, Sport, tort liability, unlawful practice Leave a commentCole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183
Gyl Cole, et al., Plaintiffs, v. Camelback Mountain Ski Resort, et al., Defendants.
3:16-CV-1959
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
2017 U.S. Dist. LEXIS 100183
June 28, 2017, Decided
June 28, 2017, Filed
CORE TERMS: skiing, advertisement, omission, ski resort, consumer, immunity, consumer fraud, presumed to know, residents, quotation marks omitted, downhill, common law, cause of action, factual allegations, assumption of risk, unlawful practice, sport, business practice, ascertainable loss, material fact, merchandise, concealment, advertised, cognizable, actionable, misleading, snow, Skier’s Responsibility Act, tort liability, reasonable inference
COUNSEL: [*1] For GYL COLE, RONALD COLE, her husband, Plaintiffs: EDWARD F. BEZDECKI, LEAD ATTORNEY, TOMS RIVER, NJ.
For CAMELBACK MOUNTAIN SKI RESORT, Defendant: Samuel J. McNulty, LEAD ATTORNEY, Hueston, McNulty, PC, Florham Park, NJ.
JUDGES: Robert D. Mariani, United States District Judge.
OPINION BY: Robert D. Mariani
OPINION
MEMORANDUM OPINION
This matter presents the following question to the Court: Does a plaintiff state a cause of action for violation of the New Jersey Consumer Fraud Act when he or she alleges that a Pennsylvania ski resort advertised its business in New Jersey but failed to include any information in its advertisements regarding the protections from tort liability the business enjoyed under Pennsylvania law? For the reasons that follow, the Court finds that such a claim is not cognizable under the New Jersey Consumer Fraud Act.
I. Introduction and Procedural History
The above captioned matter was first removed from the Superior Court of New Jersey, (Doc. 1), and then transferred by the District Court for the District of New Jersey to this Court, (Docs. 10). Plaintiffs, Gyl and Ronald Cole, represented by counsel, bring a two count Complaint against Camelback Mountain Ski Resort (“Camelback”), and two John [*2] Doe maintenance companies, (Doc. 1-1), concerning injuries that Gyl Cole sustained while skiing at Defendant Camelback’s skiing facility. Plaintiffs, both residents of New Jersey, allege that Defendants are liable both for negligence (Count I), and for violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, (Count II). Defendant Camelback now moves to dismiss Count II of Plaintiffs’ Complaint. (Doc. 20).
II. Factual Allegations
Plaintiffs’ Complaint alleges the following facts:
Plaintiffs, Gyl and Ronald Cole, are husband and wife and reside in Waretown, New Jersey. (Doc. 1-1). Camelback is a snow skiing resort facility located in Pennsylvania. (Id. at 14). According to Plaintiffs’ Complaint, Camelback advertises its business heavily in New Jersey through a variety of forms of media. (Id.). Camelback’s advertisements, however, contain no information that, under Pennsylvania law, skiing facilities enjoy “immunity” from liability for the injuries patrons sustain while skiing. (Id.). On March 15, 2014, presumably after viewing one of Camelback’s advertisements, Gyl and Ronald Cole went skiing at Camelback’s skiing facility. (Id. at ¶¶ 1 , 3-4). While skiing on one of the black diamond slopes, Gyl Cole [*3] slammed into a six inch metal pipe and sustained severe injuries. (Id. at ¶ 3).
III. Standard of Review
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (internal citations and alterations omitted). In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. A court “take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal [*4] require [a court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (internal citations and quotation marks omitted). This “plausibility” determination will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
IV. Analysis
Count II of Plaintiffs’ Complaint alleges a violation of the New Jersey Consumer Fraud Act (“NJCFA”). (Doc. 1-1 at ¶¶ 13-22). The NJCFA was enacted to address “sharp practices and dealings in the marketing of merchandise1 and real estate whereby the consumer could be victimized by being lured [*5] into a purchase through fraudulent, deceptive or other similar kind of selling or advertising practices.” Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566, 569 (N.J. 1978). “The Act creates a private cause of action, but only for victims of consumer fraud who have suffered an ascertainable loss.” Weinberg v. Sprint Corp., 173 N.J. 233, 801 A.2d 281, 291 (N.J. 2002).
1 Under the NJCFA, the term “merchandise” is broadly defined to “include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale.” N.J. Stat. Ann. § 56:8-1
“A consumer who can prove (1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss, is entitled to legal and/or equitable relief, treble damages, and reasonable attorneys’ fees.” Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 25 A.3d 1103, 1115 (N.J. 2011) (quotation marks omitted).
Unlawful practices include
[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .
N.J. Stat. Ann. § 56:8-2. The New Jersey Supreme Court has specified that “[u]nlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 462 (N.J. 1994).
In the case at hand, Plaintiffs assert that the unlawful practice that Defendant Camelback allegedly engaged [*6] in was a failure to inform, i.e., an omission. (Doc. 1-1 at ¶ 14; Doc. 29 at 4). Under the NJCFA, an omission is actionable “where the defendant (1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 297 (D.N.J. 2009). “Implicit in the showing of an omission is the underlying duty on the part of the defendant to disclose what he concealed to induce the purchase.” Id.
Plaintiffs’ Complaint alleges that Defendant Camelback failed to include any information in its advertisements with respect to the protections from tort liability it enjoyed under Pennsylvania law. Specifically, Plaintiffs’ Complaint alleges the following:
Camelback knew that their [sic] advertising heavily in New Jersey induced New Jersey residents to attend Camelbacks [sic] site in Pennsylvania. Camelback knew that it had immunity granted to it through the legislation passed by the Pennsylvania Legislature but at no time did Camelback ever tell New Jersey residences [sic] that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback. Knowing full well that they [sic] had this immunity, Camelback elected not to notify any of [*7] the invitees to their [sic] site about the immunity.
(Doc. 1-1 at ¶ 14).2 Defendant Camelback argues that this is insufficient to state a claim under NJCFA. (Doc. 22 at 7). Plaintiffs respond that they have adequately pleaded that “Camelback knew and should have advised the skiing public [through its advertisements] . . . that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback by the Pennsylvania Legislature.” (Doc. 29 at 4).
2 Additionally, and somewhat confusingly, the Complaint also alleges that “Camelback misrepresented to the New Jersey residents at large through its media blitz that the New Jersey residences [sic] can use Camelback facilities for snow skiing.” (Doc. 1-1 at ¶ 17). This singular statement is in stark contrast with the rest of the Complaint which alleges that Plaintiffs, both residents of New Jersey, did in fact engage in snow skiing at Camelback.
The inaptly described “immunity clause” Plaintiffs refer to is no doubt the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S. § 7102(c). The Act states:
(c) Downhill skiing.–
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth, It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by [42 Pa. C.S. § 7102(a)-(a.1)]
42 Pa. C.S. § 7102, The Pennsylvania Supreme Court has made clear that “the Act did [*8] not create a new or special defense for the exclusive use of ski resorts, but instead kept in place longstanding principles of common law.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (Pa. 2010). The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Id. In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Id.
Thus, the Court arrives at the question of whether Plaintiffs’ state a claim under the NJCFA when they allege that Defendant Camelback advertised its Pennsylvania skiing facility to New Jersey residents but failed to include a disclaimer with respect to the Pennsylvania Skier’s Responsibility Act or the common law doctrine of voluntary assumption of risk. As this is a question of New Jersey state law, this Court must turn to the decisions of that state’s courts for an answer. U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir. 1996). The parties have not directed the Court to any [*9] New Jersey case–and the Court’s own research did not uncover any–that squarely addresses this issue. Nor have New Jersey courts apparently addressed the analogous issue of whether, under the NJCFA, advertisers are ever obliged to educate the public on the law applicable to their product absent other specific authority requiring such disclosures. Accordingly, it falls to this Court to predict how the highest tribunal in New Jersey would rule on the matter. Id. For the following reasons, this Court predicts that the New Jersey Supreme Court would find that such a claim is not cognizable under the NJCFA.
First, this is simply not the type of omission contemplated by the NJCFA. The Court is cognizant of the fact the NJCFA “is intended to be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud, and therefore to be liberally construed in favor of the consumer.” Gonzalez, 25 A.3d at 1115 (internal citations and quotation marks omitted). Additionally, the Court is aware that “[t]he statutory and regulatory scheme is . . . designed to promote the disclosure of relevant information to enable the consumer to make intelligent decisions in the selection of products and services.” Div. of Consumer Affairs v. Gen. Elec. Co., 244 N.J. Super. 349, 582 A.2d 831, 833 (N.J. Super. Ct. App. Div. 1990). [*10] Nevertheless, the NJCFA has limits. To qualify as an unlawful practice under the NJCFA, “[t]he practice must be misleading and outside the norm of a reasonable business practice.” Hughes v. TD Bank, N.A., 856 F. Supp. 2d 673, 680 (D.N.J. 2012); see also Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 110 A.3d 137, 144 (N.J. Super. Ct. App. Div. 2015). Indeed, the “advertisement must have ‘the capacity to mislead the average consumer in order for it to be actionable. Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496, 501 (D.N.J. 2006) (quoting Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617, 801 A.2d 361, 379 (N.J. Super. Ct. App. Div. 2002)). Finally, the omission must concern a material fact. Arcand, 673 F. Supp. 2d at 297. The alleged omission in this case, however, is not one of fact, is not misleading, and does not fall outside the norm of reasonable business practices.
Plaintiffs’ allege that Defendant Camelback failed to provide information in its advertisements concerning the Pennsylvania Skier’s Responsibility Act and the common law doctrine of voluntary assumption of risk. Initially, as omissions of law, these allegations fall outside of the statutory language of the NJCFA. Additionally, the type or nature of legal defenses to liability which a business may assert in the event of a lawsuit is not information normally included in an advertisement, as both parties have equal access to that information. Consequently, Defendant Camelback’s alleged failure to include such information does not imply its nonexistence and is therefore not [*11] misleading nor outside of the norm of a reasonable business practice. As such, omissions of this type are not actionable under the NJCFA.
Second, a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 86 L. Ed. 2d 81 (1985); see also Gilmore v. Taylor, 508 U.S. 333, 360, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (“[A] citizen . . . is presumed to know the law . . . .”); Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986) (“Private citizens are presumed to know the law . . . .”); State v. Moran, 202 N.J. 311, 997 A.2d 210, 216 (N.J. 2010) (“Every person is presumed to know the law.”); Maeker v. Ross, 219 N.J. 565, 99 A.3d 795, 802 (N.J. 2014) (“[E]veryone is presumed to know the law . . . .”); Widmer v. Mahwah Twp., 151 N.J. Super. 79, 376 A.2d 567, 569 (N.J. Super. Ct. App. Div. 1977) (“[T]he principle is well established that every person is conclusively presumed to know the law, statutory and otherwise.”); cf. Commonwealth v. McBryde, 2006 PA Super 289, 909 A.2d 835, 838 (Pa. Super. Ct. 2006) (“[E]veryone is presumed to know the law; an out-of-state driver is not absolved from following the laws of this Commonwealth or any other state in which he or she chooses to drive.”). Thus, as a matter of law, Defendant Camelback’s advertisement did not have the capacity to mislead because the law presumes that Plaintiffs–and everyone else for that matter–already knew the information Defendant Camelback allegedly omitted. Stated otherwise, the law should not obligate Defendant Camelback to inform its prospective customers of what they [*12] already know.3
3 The Court, however, may have come to a different conclusion had Plaintiffs alleged that Defendant Camelback made an affirmative misrepresentation of the law in its advertisements. Nevertheless, such a situation is not presently before this Court.
Finally, if this Court were to come to the opposite conclusion, businesses would have almost unending liability. For example, a Pennsylvania retailor may be liable under the NJCFA if it advertised its clothing outlet to New Jersey residents but failed to include a disclaimer stating that a customer injured at the store by an employee’s negligence may have his or her recovery reduced if the shopper was also negligent. See 42 Pa. C.S. § 7102(a) (“[A]ny damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”). Or a marketer of a curling iron may be liable under the NJCFA for failing to disclose to consumers that, even if they are injured due to a design flaw in the product, the users may not be able to recover for their injuries if “there was no reasonable alternative design” for the curling iron at the time of manufacturing. See Cavanaugh v. Skil Corp., 164 N.J. 1, 751 A.2d 518, 520 (N.J. 2000) (quotation marks omitted); see also N.J. Stat. Ann. § 2A:58C-3(a)(1). Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.
V. Conclusion
For the reasons outlined above, this Court will grant Defendant Camelback Mountain [*13] Ski Resort’s Motion to Dismiss Plaintiffs’ claim for violation of the New Jersey Consumer Fraud Act, (Doc. 20). A separate Order follows.
/s/ Robert D. Mariani
Robert D. Mariani
United States District Judge
ORDER
AND NOW. THIS 29th DAY OF JUNE, 2017, upon consideration of Defendant Camelback Mountain Ski Resort’s partial Motion to Dismiss, (Doc.20), IT IS HEREBY ORDERED THAT the Motion is GRANTED. Count II of Plaintiffs’ Complaint, (Doc. 1-1), is DISMISSED WITH PREJUDICE.
/s/ Robert D. Mariani
Robert D. Mariani
United States District Court Judge
You cannot assume the risk of a recreational activity if the defendant alters the activity and adds risk that he does not inform the guest about.
Posted: September 11, 2017 Filed under: Assumption of the Risk, Minors, Youth, Children, New York, Ski Area, Skiing / Snow Boarding | Tags: #AssumptionoftheRisk, #SkiLaw, Assumption of risk, assumption of the risk, beginner, belt, bunny slope, Chairlift, corral, daughter, netting, novice, OutdoorLaw, OutdoorRecreationLaw, pipes, plumbing, RecreationLaw, Ski, ski area, skier's, Slope, Summary judgment Leave a commentIf you run PVC pipe across the slope that blends in with the slope, a skier coming down the hill does not assume the risk of hitting PVC pipe. PVC does not fall from the sky, is not natural, and in 50 years of skiing it not something I’ve ever seen on a slope.
State: New York
Plaintiff: Judy Zhou, et al
Defendant: Tuxedo Ridge, LLC, et al.
Plaintiff Claims: negligence
Defendant Defenses: assumption of the risk and the mother should have watched her daughter more closely
Holding: for the defendant
Year: 2017
Summary
There are two defenses in this case. The first is assumption of the risk. The standard defense used for injuries arising from activities in outdoor recreational activities. The second is not discussed by the court but one we have all wanted to argue at least once.
The defendant makes several arguments in support of summary judgment, including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk.
The defendant is not at risk because the mother let the child do what the child wanted and did not supervise the child. Ski areas are not baby sitters. If you buy a minor a lift ticket, the ski area knows the lift ticket allows access by the minor to whatever lift the minor wanted to ride and to come down any hill the minor wants to ride.
However, if that child is injured, the ski area should not have allowed that child on the lift because it was too dangerous.
That argument is a landmine to make in court. Mothers of injured children are liked by juries because they feel for the pain the mother is suffering. And who in their right mind would say that a mother is doing a bad job of raising their kids.
The other defense assumption of the risk would have won the case if the defendant had not laid down PVC pipe on the slope in a way that no one could see the pipe. The pipe was there to create a coral to lead skiers back to the lift. However, when you can’t see it, don’t know it’s there, and hit it, it is hard to argue that PVC is a natural risk of skiing.
Facts
The facts are quite simple.
…the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the chairlift. The PVC pipes were as hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts.
Analysis: making sense of the law based on these facts.
The court started its analysis of the case with the famous Cardozo quote that created the defense of assumption of the risk.
The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929)
However, the court quickly shifted its analysis to whether the injured minor plaintiff could have assumed the risk.
A seven-year-old skier could not assume the risk of a risk she was not properly educated about. Unless the risk is inherent, part of skiing, or known, understood and accepted by the plaintiff, or part of the risk of the sport, the plaintiff cannot assume the risk.
So Now What?
If the PVC pipe were visible; fenced, painted red, behind warning signs, this case would have gone the other direction. However, when you hide a risk not only do you lose the assumption of risk defense, but you might also set yourself up for a reckless or willful charge that could lead to greater damages.
Seriously, don’t be stupid is the bigger thing to learn from this case.
What do you think? Leave a comment.
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Zhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)
Posted: September 10, 2017 Filed under: Assumption of the Risk, Legal Case, New York, Ski Area, Skiing / Snow Boarding | Tags: #SkiLaw, Assumption of risk, assumption of the risk, beginner, belt, bunny slope, Chairlift, corral, daughter, netting, novice, OutdoorLaw, pipes, plumbing, RecreationLaw, Ski, ski area, skier's, Slope, Summary judgment Leave a commentZhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)
[**1] Judy Zhou, et al., Plaintiff, against Tuxedo Ridge, LLC, et al., Defendants.
1229/2014
SUPREME COURT OF NEW YORK, QUEENS COUNTY
54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)
February 3, 2017, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, skier’s, chairlift, slope, daughter, novice, pipes, assumption of risk, belt, ski, plumbing, netting, corral
HEADNOTES
Negligence–Assumption of Risk.
JUDGES: [*1] Honorable Salvatore J. Modica, J.S.C.
OPINION BY: Salvatore J. Modica
OPINION
SALVATORE J. MODICA, J.:
The defendant moves for summary judgment in this case where the plaintiff, a nine-year-old child, making her maiden ski trip was injured.
The defendant makes several arguments in support of summary judgment including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk. Almost ninety years ago, Chief Judge Cardozo stated: “The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929) (one stepping on moving belt of amusement device accepts obvious and necessary dangers).
The law has moved from assumption of risk to comparative negligence. As plaintiff’s counsel, Souren A. Israelyan, Esq., cogently and aptly states in his affirmation in opposition to the defense motion, the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the chairlift. The PVC pipes were as [*2] hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts.
Under the foregoing facts, the provident course is to deny the defendants’ motion for summary judgment. See, De Lacy v. Catamount Dev. Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003) (genuine issue of material facts existed as to whether seven-year-old novice skier with limited skiing ability was properly instructed regarding use of chairlift, whether owner/operator of ski facility violated its own policies, and whether chairlift’s design was faulty, precluding summary judgment for owner/operator in negligence action brought by mother and her daughter, seeking to recover damages for injury daughter sustained when she fell from chairlift); accord, Finn v. Barbone, 83 AD3d 1365, 921 N.Y.S.2d 704 (3rd Dept. 2011) (fact issues precluded summary judgment on issue of skier’s assumption of the risk).
This Court, [*3] therefore, denies the motion for summary judgment in its entirety.
The parties are required to appear in the Trial Scheduling Part on February 15, 2017, for trial.
The foregoing constitutes the decision, order, and opinion of the Court.
Dated: Jamaica, New York
February 3, 2017
Honorable Salvatore J. Modica
J.S.C.
To prove gross negligence under Washington State law you have to show intentional or reckless misconduct. Assumption of the risk prevents river tuber for suing for his injuries hitting a strainer.
Posted: August 28, 2017 Filed under: Assumption of the Risk, Paddlesports, Rivers and Waterways, Washington | Tags: Assumption of risk, assumption of the risk, comparative negligence, contributory negligence, Duty to Warn, encounter, fallen, fault, Gross negligence, Hazard, impliedly, Inherent Risks, Inner Tube, Livery, log, negligence claim, Outdoor, peril, Reckless, relieve, Rental, risks inherent, River, River Tubing, site, Sport, Summary judgment, Survive, swift, tuber, Tubing, Tubing Livery, warn, Water Sports Leave a commentWashington defines assumption of the risk the same way most other courts do. However, the names they sue to describe assumption of the risk are different in some cases and confusing in others.
Here, assumption of the risk stopped claims both for negligence and gross negligence for this tubing case.
Summary
Assumption of the risk is growing again as a defense to different types of claims by plaintiffs. In this case, the plaintiff assumed the risk of his injuries for a tubing accident which barred his negligence claim and his gross negligence claim. The standard of proof needed to prove a claim that cannot be defeated by assumption of the risk in Washington is a much higher level of action on the part of the defendant.
Here the plaintiff failed to plead or allege that level of acts by the defendant.
Washington also uses different names for the types of assumption of the risk that are applied to cases, which can lead to greater confusion.
If you are a defendant, instead of attempting to understand what is or is not assumption of the risk. Spend your time educating your customers, so they know and assume the risk they may be facing.
Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525
State: Washington, Court of Appeals of Washington, Division Three
Plaintiff: Brian Pellham
Defendant: Let’s Go Tubing, Inc., et al.
Plaintiff Claims: presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion lo-cation, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed.
Defendant Defenses: that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pelham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence.
Holding: For the Defendant
Year: 2017
Facts
The plaintiff rented an inner tube from the defendant. The rental included delivery to the put in by the defendant. This is commonly described as a livery operation as compared to a pure rental where the renter takes the inner tube and goes wherever.
Upon arrival, the plaintiff signed a release and rented an inner tube. The plaintiff uses releases in his business, although what type of business was never discussed by the court.
The bus driver for the defendant told most of the tubers that upon entry they should push off to the far side of the river to avoid a tree that had fallen into the river immediately downriver but out of sight of the put in.
The plaintiff did not hear this warning. The plaintiff and four friends tied their inner tubes together. The current was swift and they quickly rounded the bend where they saw the tree across the river. The rental company gave each renter a Frisbee to use as a paddle. Everyone used the Frisbee to paddle away from the tree, but the plaintiff hit the tree. Falling into the river the plaintiff broke his ear drum. He went under the tree and upon resurfacing; he struck a large branch which gave him a whiplash.
The plaintiff swam to shore and ended his tubing trip. The plaintiff eventually underwent a neck fusion surgery.
The defendant was legally not allowed to remove the strainer from the river.
The plaintiff sued the defendant. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
Washington has defined four types of assumption of the risk and has identified them slightly differently than most other states.
Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.
The first two, Express Assumption of the Risk and Implied Assumption of the Risk are still complete bars to a claim of negligence. The second two, Implied Unreasonable and Implied Reasonable have merged into contributory negligence and simply reduce the plaintiff’s damages.
Washington defines the types of assumption of the risk the same way most other states do.
Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks.
Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent.
Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk.
Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so.
Washington also names Implied Primary Assumption of the Risk as Inherent Peril Assumption of the Risk.
Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves those known risks. One who participates in sports impliedly assumes the risks inherent in the sport.
How the plaintiff was injured defines whether or not Inherent Peril Assumption of the Risk applies. The court went on to define the inherent peril assumption of the risk as:
One who engages in sports assumes the risks that are inherent in the sport. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport.
Inherent peril assumption of the risk extends to water sports. One who plays in the water assumes the reasonably foreseeable risks inherent in the activity. Water sports include inner tubing and canoe rentals. Inherent risk applies because “Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions.”
For the plaintiff to assume the risk, three elements must be found.
Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk.
Washington also requires the plaintiff to understand the risk. “The rule of both express and inherent peril assumptions of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk.”
However, that does not require knowledge of the specific issues that caused the injury, just knowledge that the injury could occur. Meaning, if the injured party knows that trees fall into rivers, would be enough. There is no requirement that the injured plaintiff knew that a tree fell into the river.
…Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river.
However, even if the plaintiff assumed the risks, a plaintiff cannot assume the risk where the defendant unduly enhanced the risk.
While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks.
This difference places a burden on the plaintiff, in what he or she has to prove to win their claim and a burden on the courts to define what is an increase in the level of danger.
Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages.
However, here any negligence upon the part of the defendant did not increase the risk. The negligence occurred prior to the plaintiff entering the water. The danger was the tree in the river which the defendant could not do anything about.
When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.
The plaintiff also argued in this complaint, that the actions of the defendant were grossly negligent. Gross negligence in Washington is defined as failure to exercise slight care.
Gross negligence claims survive when a release has been signed. The issue before the court was whether gross negligence claims can be stopped if the plaintiff assumed the risk.
At the same time, gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk.
The court then redefined how gross negligence was going to be reviewed in Washington applying an intentional reckless standard as the level required proving gross negligence when a plaintiff assumes the risk.
We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.
There is a difference between gross negligence and reckless misconduct under Washington’s law.
Gross negligence consists of the failure to exercise slight care. Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her.
Because reckless conduct is a higher burden to meet, assumption of the risk becomes a defense that can beat a gross negligence claim in some situations in Washington. The plaintiff never pleaded reckless conduct on the part of the defendant so the plaintiff’s gross negligence claim was also denied.
Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.
So Now What?
Understanding the different slight subtlest between the various forms of assumption of the risk is difficult. Comparing them between states does nothing but create a confusing group of definitions that cross one another and at best confuse one another.
Better, set up a system to educate your guests or clients on the risks they may encounter. That time spent educating the guests can pay dividends both in keeping you out of court and keeping your guests happy and coming back.
What do you think? Leave a comment.
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Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525
Posted: August 27, 2017 Filed under: Assumption of the Risk, Legal Case, Paddlesports, Rivers and Waterways, Washington | Tags: Assumption of risk, comparative negligence, contributory negligence, Duty to Warn, encounter, fallen, fault, Gross negligence, Hazard, impliedly, Inherent Risks, Inner Tube, log, negligence claim, Outdoor, peril, Reckless, relieve, Rental, risks inherent, River, site, Sport, Strainer, Summary judgment, Survive, swift, tuber, Tubing, warn, Water Sports 1 CommentPellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525
Brian Pellham, Appellant, v. Let’s Go Tubing, Inc., et al., Respondents.
No. 34433-9-III
COURT OF APPEALS OF WASHINGTON, DIVISION THREE
199 Wn. App. 399; 2017 Wash. App. LEXIS 1525
March 21, 2017, Oral Argument
June 27, 2017, Filed
SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.
Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.
Superior Court: The Superior Court for Chelan County, No. 13-2-00663-9, Lesley A. Allan, J., on April 14, 2016, entered a summary judgment in favor of the defendants, dismissing all of the plaintiff’s claims.
Court of Appeals: Holding that the defendants did not have a duty to warn the plaintiff about the fallen log because the plaintiff assumed the risk of a fallen log and swift current by voluntarily participating in the activity, the court affirms the judgment.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
[1] Negligence — Assumption of Risk — Sports — River Float — Assumed Risks — Fallen Trees — Swift Current. By voluntarily participating in a float on a wild river, one assumes the inherent risks of fallen trees in the water and a swift current. The assumption of risk may relieve the organizer of the activity of an actionable duty to warn about or to prevent injury from trees in the river.
[2] Negligence — Assumption of Risk — Sports — Nature of Assumed Risk. Assumption of risk in the context of participating in a sport is in reality the principle of no duty to warn of the hazards of the sport, in which case there can be no breach of duty and no actionable claim for negligence.
[3] Negligence — Duty — Necessity — In General. A cause of action for negligence will not lie absent the existence of a duty of care.
[4] Negligence — Assumption of Risk — Effect — Relief From Duty. The tort concept of duty overlaps with the contract and tort principles of assumption of risk. An assumption of risk can sometimes relieve a defendant of a duty.
[5] Negligence — Duty — Question of Law or Fact — In General. Whether a defendant owed a duty to a plaintiff is a question of law.
[6] Negligence — Assumption of Risk — Classifications. The term “assumption of risk” expresses several distinct common law theories, derived from different sources, that apply when one is knowingly exposed to a particular risk. The general rubric of assumption of risk does not signify a singular doctrine but, rather, encompasses a cluster of discrete concepts. The law recognizes four taxonomies of assumption of risk: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.
[7] Negligence — Assumption of Risk — Effect — In General. Express assumption of risk and implied primary assumption of risk operate as complete bars to a plaintiff’s recovery. Implied unreasonable assumption of risk and implied reasonable assumption of risk are merely alternative names for contributory negligence and merely reduce a plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and RCW 4.22.015.
[8] Negligence — Assumption of Risk — Express Assumption — What Constitutes — In General. Express assumption of risk arises when one explicitly consents to relieve another of a duty regarding specific known risks.
[9] Negligence — Assumption of Risk — Implied Primary Assumption — What Constitutes — In General. Implied primary assumption of risk follows from one’s engaging in risky conduct, from which the law implies consent.
[10] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Focus of Inquiry. Implied unreasonable assumption of risk primarily focuses on the objective unreasonableness of one’s conduct in assuming a risk.
[11] Negligence — Assumption of Risk — Implied Reasonable Assumption — What Constitutes. Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that one assumes a risk, but acts reasonably in doing so.
[12] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Implied Reasonable Assumption — Comparison. The gist of implied reasonable and implied unreasonable assumption of risk is that a defendant performed conduct that increased the risk of an activity or situation beyond the inherent risks thereof and the plaintiff reasonably or unreasonably encountered the increased risk. The categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar a plaintiff’s recovery.
[13] Negligence — Assumption of Risk — Inherent Peril — Risk of Activity — Assuming the Dangers. Inherent peril assumption of risk–also known as implied primary assumption of risk–bars a plaintiff’s claim resulting from specific known and appreciated risks impliedly assumed, often in advance of any negligence by the defendant. A plaintiff’s consent to relieve a defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves the known risks.
[14] Negligence — Assumption of Risk — Sports — Implied Assumption. One who participates in a sport impliedly assumes the risks inherent in the sport.
[15] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — In General. Under the theory of inherent peril assumption of risk, a plaintiff assumes the dangers that are inherent in and necessary to a particular activity. To the extent a risk inherent in a sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant does not have a duty to protect a sports participant from dangers that are an inherent and normal part of the sport.
[16] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — Water Sports. Inherent peril assumption of risk extends to water sports. One who engages in a water sport assumes the reasonably foreseeable risks inherent in the activity. This assumption of risk includes inner tubing on water. Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions in the water.
[17] Negligence — Assumption of Risk — Inherent Peril — Test. Inherent peril assumption of risk requires evidence that (1) the plaintiff possessed at least an understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk. In the usual case, a plaintiff’s knowledge and appreciation of a danger is a question of fact, but if it is clear that any person in the plaintiff’s position would have understood the danger, the issue may be decided by a court as a matter of law.
[18] Negligence — Assumption of Risk — Sports — Negligence Enhancing Assumed Risk. While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude recovery for the negligent acts of others that unduly enhance such risks.
[19] Negligence — Assumption of Risk — Inherent Peril — Limited Application. Inherent peril assumption of risk is the exception rather than the rule in assumption of risk situations.
[20] Negligence — Assumption of Risk — Increased Danger — What Constitutes. Increased danger assumption of risk–also known as implied unreasonable assumption of risk and implied reasonable assumption of risk–does not involve a plaintiff’s consent to relieve a defendant of a duty. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Increased danger assumption of risk involves a plaintiff’s voluntary choice to encounter a risk created by a defendant’s negligence. Increased danger assumption of risk arises when a plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. In such a case, the plaintiff’s conduct is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk.
[21] Negligence — Assumption of Risk — Increased Danger — Applicability. Increased danger assumption of risk does not apply in circumstances where the defendant did not create and could not remove the risk and where the plaintiff did not voluntarily take the risk because the plaintiff did not know the precise nature of the risk beforehand and lacked time to avoid the risk once it became apparent.
[22] Negligence — Assumption of Risk — Inherent Peril — Knowledge of Risk — Warning — Statements in Written Release — Sufficiency. A recitation in a release of liability warning of dangers inherent in an activity can be sufficient to notify a person of the risks of the activity that may give rise to inherent peril assumption of risk where the person chooses to engage in the activity and sustains injury from such dangers.
[23] Negligence — Assumption of Risk — Inherent Peril — Scope of Defense — Gross Negligence — Intentional or Reckless Conduct. Inherent peril assumption of risk in a sporting or outdoor activity may allow a defendant to avoid liability for gross negligence but not for intentional or reckless conduct. A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. An actor’s conduct is in “reckless disregard” of the safety of another if the actor intentionally does an act or fails to do an act that it is the actor’s duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to the other. Fearing, C.J., delivered the opinion for a unanimous court.
COUNSEL: Richard D. Wall (of Richard D. Wall PS), for appellant.
Kristen Dorrity (of Andrews o Skinner PS), for respondents.
JUDGES: Authored by George Fearing. Concurring: Kevin Korsmo, Laurel Siddoway.
OPINION BY: George Fearing
OPINION
[*403] ¶1 Fearing, C.J. — This appeal asks: does an inner tube rental company owe a duty to warn a renter about a fallen log in a river when the log is hidden from but near the launch site, the river’s current draws the tuber toward the log, the company knows of the fallen log, the company warns other tubers of the log, and the company chooses the launch site? To answer this question, interests such as exhilarating and uninhibited outdoor recreation, retaining the natural environment, and freedom to contract compete with cautious business practices, full disclosure of risks, and compensation for injury. Based on the doctrine of inherent peril assumption of risk, we answer the question in the negative. We affirm the trial court’s summary judgment dismissal of renter Brian Pellham’s suit for personal injury against the tube [**2] rental company, Let’s Go Tubing, Inc.
FACTS
¶2 Brian Pellham sues for injuries suffered while inner tubing on the Yakima River. Because the trial court dismissed Pellham’s suit on summary judgment, we write the facts in a light favorable to Pellham.
¶3 Melanie Wells invited Brian Pellham and his domestic partner to join her and three others on a leisurely unguided excursion floating the Yakima River. Wells arranged the expedition and reserved equipment and transportation from Let’s Go Tubing, Inc.
¶4 [*404] On July 30, 2011, Brian Pellham met the Wells party at the Let’s Go Tubing’s Umtanum gathering site, where additional tubers waited. Before boarding a bus, each participant signed a release of liability and assumption of risk form. Pellham felt rushed but read and signed the form. The form provided:
I, the renter of this rental equipment, assume and understand that river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants, animals, other people, other water craft, exposure to the elements, variations in water depth and speed of current, along with other structures and equipment, and many other hazards or obstacles exist in the river environment. In using the rental equipment or any facilities [**3] or vehicles related thereto such dangers are recognized and accepted whether they are marked or unmarked. River tubing can be a strenuous and physically demanding activity. It requires walking, bending, lifting, paddling, swimming, and awareness of the outdoor environment. I realize that slips, falls, flips, and other accidents do occur and serious injuries or death may result and I assume full responsibility for these risks … . “IN CONSIDERATION FOR THIS RENTAL AND ANY USE OF THE FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS AND INDEMNIFY LET’S GO TUBING, INC. ITS SUBSIDIARIES AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS RENTAL EQUIPMENT.”
Clerk’s Papers at 46. On other occasions, such as a rafting trip, Brian Pellham has signed a waiver. In his business, he employs release forms.
¶5 Let’s Go Tubing launches its customers from the Umtanum site unless the Yakima River level runs low. With low water, the company buses customers to one of two other Yakima River sites, Big Horn or Ringer Loop.
¶6 On July 30, 2011, Let’s Go Tubing’s shuttle bus, because [**4] of a low river level, transported Brian Pellham, his group members, and other customers eight miles upstream [*405] to Ringer Loop. Ringer Loop maintains a public concrete boat ramp and public restroom. The total number of customers on the excursion approached twenty. During transport, Steff Thomas, the Let’s Go Tubing bus driver, told Melanie Wells and a handful of others seated at the front of the bus to push into the middle of the river once they embarked, because a fallen tree obstructed the river immediately downriver but out of sight from the launch site. We do not know the number of customers the driver warned. Thomas did not warn Pellham of the obstructing tree. Nor did anyone else. Someone, possibly Thomas, warned everyone not to leave the river except at designated spots because private owners own most of the riverbank.
¶7 At the launch site, Let’s Go Tubing handed each person a Frisbee to use as a paddle. Brian Pellham requested a life jacket, but Steff Thomas ignored him. Fifteen inner tubers entered the river first. Pellham and four others followed in a second group with their tubes tied together. They encountered a swift current. As soon as the flotilla of five rounded the [**5] first bend in the river, they saw a fallen tree extending halfway across the river. Many branches extended from the tree trunk. Each paddled furiously with his or her Frisbee, but the fleet of five inner tubes struck the tree. Brian Pellham held the tree with his left hand and attempted to steer around the tree. The current grabbed the inner tubes and Pellham fell backward into the river. The fall broke Pellham’s eardrum. The current forced Pellham under the tree and the water level. When Pellham resurfaced, his head struck a large branch. He sustained a whiplash injury. His chest also hit the branch.
¶8 Brian Pellham swam to shore and ended his river excursion. Pellham told Steff Thomas of his dangerous encounter, and the driver admitted he knew about the fallen tree but laws prevented Let’s Go Tubing from removing the obstacle.
[*406] ¶9 Brian Pellham later underwent a neck fusion surgery. The accident also caused damage to a low back disk, and the damage creates pain radiating to his left foot.
PROCEDURE
¶10 Brian Pellham sued Let’s Go Tubing for negligent failure to warn and Consumer Protection Act, chapter 19.86 RCW, violations. Let’s Go Tubing answered the complaint and raised affirmative defenses, including release of liability and [**6] assumption of the risk. The company filed a motion for summary judgment dismissal based on the release and on assumption of risk. In response to the motion, Pellham argued that he did not waive liability because Let’s Go Tubing committed gross negligence. He also argued he did not expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to dismissal of his consumer protection claim. The trial court granted summary dismissal of all of Pellham’s claims.
LAW AND ANALYSIS
¶11 On appeal, Brian Pellham contends the trial court erred in dismissing his claim because he presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion location, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed. On appeal, he does not argue liability against Let’s Go Tubing for failing to provide a life vest.
[1] ¶12 Let’s Go Tubing responds that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pellham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence. We affirm based on the inherent risks in river tubing. Because of Pellham’s [*407] voluntary participation in the outdoor recreation activity, he assumed the risk of a fallen log and swift current. Conversely, Pellham’s assumption of the risk created no duty for Let’s Go Tubing to warn Pellham of or prevent injury to him from trees in the river. Because we rely on the inherent risks in river tubing, we do not address whether the written agreement signed by Pellham bars his suit.
¶13 Because we hold that Brian Pellham assumed the risk and thereby rendered Let’s Go Tubing dutyless, we do not address whether Pellham created an issue of fact with regard to gross negligence. We conclude that, to avoid application of inherent peril assumption of risk, Pellham needed to show intentional or reckless misconduct of the rental company, and Pellham does not show or argue either.
Summary Judgment Principles
¶14 We commence with our obligatory recitation of summary judgment principles. [HN1] This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Mahoney v. Shinpoch, 107 Wn.2d 679, 683, 732 P.2d 510 (1987). [HN2] Summary judgment is proper if the records on file with the [**8] trial court show “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” CR 56(c). [HN3] This court, like the trial court, construes all evidence and reasonable inferences in the light most favorable to Brian Pellham, as the nonmoving party. Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). [HN4] A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
[*408] Defenses on Review
¶15 Let’s Go Tubing seeks affirmation of the summary judgment dismissal of Brian Pellham’s claim based on both an absence of duty and Pellham’s assumption of risk. In turn, Pellham argues that, under RAP 2.5(a), the rental company may not assert a lack of duty because the company did not raise this defense before the trial court.
[2] ¶16 We need not address Brian Pellham’s objection to Let’s Go Tubing’s argument of lack of duty. We base our decision on inherent peril assumption of risk, and the rental company raised the defense of assumption of risk below. Anyway, assumption of risk in this context is equivalent to a lack of duty. [HN5] Assumption of the risk in the sports participant context is in [**9] reality the principle of no duty and hence no breach and no underlying cause of action. Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 523, 984 P.2d 448 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 401-02, 725 P.2d 1008 (1986).
Assumption of Risk
[3, 4] ¶17 [HN6] A negligence claim requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Thus, to prevail on his negligence claim, Brian Pellham must establish that Let’s Go Tubing owed him a duty of care. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). [HN7] The tort concept of duty overlaps with the contract and tort principles of assumption of risk. As previously mentioned, sometimes assumption of risk relieves the defendant of a duty. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. at 402 (1986).
[5] ¶18 [HN8] The threshold determination of whether a duty exists is a question of law. Tincani v. Inland Empire Zoological [*409] Society, 124 Wn.2d at 128; Coleman v. Hoffman, 115 Wn. App. 853, 858, 64 P.3d 65 (2003). We hold that, because of Brian Pellham’s assumption of the risk of fallen trees in the water, Let’s Go Tubing, as a matter of law, had no duty to warn Pellham of the danger or, at the least, the rental company possessed only a restricted duty to not intentionally injure Pellham or engage in reckless misconduct.
[6] ¶19 We first briefly explore the variegated versions of assumption of risk in order to later analyze the application of inherent peril assumption of risk. [HN9] The term “assumption of the risk” expresses [**10] several distinct common law theories, derived from different sources, which apply when a plaintiff knowingly exposes himself to particular risks. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281 (2002); Francis H. Bohlen, Voluntary Assumption of Risk (pt. 1), 20 Harv. L. Rev. 14, 15-30 (1906); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984). Stated differently, the general rubric of assumption of risk does not signify a singular doctrine but rather encompasses a cluster of discrete concepts. Kirk v. Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285 (1987). Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010) (plurality opinion); Gleason v. Cohen, 192 Wn. App. 788, 794, 368 P.3d 531 (2016); 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 9:11, at 398-99 (4th ed. 2013).
[7] ¶20 Before the enactment of comparative negligence and comparative fault statutes, practitioners and courts encountered little reason to distinguish the four versions of assumption of risk because at common law all assumption of the risk completely barred recovery. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992). [*410] Today, [HN10] the first two categories of assumption of risk, express assumption and implied primary assumption, on the one hand, continue to operate as a complete bar to a plaintiff’s recovery. Kirk v. Washington State University, 109 Wn.2d at 453-54; Gleason v. Cohen, 192 Wn. App. at 794. On the other hand, implied unreasonable and implied [**11] reasonable assumption meld into contributory negligence and merely reduce the plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and .015. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497. The last two types are merely alternative names for contributory negligence. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636 (2010). Our decision relies on implied primary assumption, but we will discuss other renderings of assumption of risk in order to sculpt our decision.
[8-11] ¶21 [HN11] Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636; Kirk v. Washington State University, 109 Wn.2d at 453. [HN12] Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent. Kirk v. Washington State University, 109 Wn.2d at 453; Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). [HN13] Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk. Kirk v. Washington State University, 109 Wn.2d at 454. [HN14] Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so. Kirk v. Washington State University, 109 Wn.2d at 454.
[12] ¶22 We confront difficulty in distinguishing among at least three of the four categories because of the [**12] nondescript identifiers and near homophonic labels of some classifications. Therefore, we recommend that the Supreme [*411] Court rechristen the categories as express assumption, inherent peril assumption of risk, and increased danger assumption of risk. [HN15] The gist of implied reasonable and implied unreasonable assumption of risk is that the defendant performed conduct that increased the risk of an activity or situation beyond the risks inherent in the activity or situation and the plaintiff reasonably or unreasonably encountered this increased risk. The traditional categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar the plaintiff’s recovery, and so we urge combining the two concepts into increased danger assumption of risk. We hereafter use these new terms.
Inherent Peril Assumption of Risk
[13, 14] ¶23 We now focus on inherent peril assumption of risk. [HN16] Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497 (1992); Boyce v. West, 71 Wn. App. 657, 666-67, 862 P.2d 592 (1993). Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision [**13] to engage in an activity that involves those known risks. Egan v. Cauble, 92 Wn. App. 372, 376, 966 P.2d 362 (1998); Gleason v. Cohen, 192 Wn. App. at 797 (2016). [HN17] One who participates in sports impliedly assumes the risks inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Boyce v. West, 71 Wn. App. at 667.
[15] ¶24 [HN18] Whether inherent peril assumption of risk applies depends on whether the plaintiff was injured by an inherent risk of an activity. Gleason v. Cohen, 192 Wn. App. at 797. The plaintiff assumes the dangers that are inherent in and necessary to a particular activity. Tincani v. Inland Empire Zoological Society, 124 Wn.2d at 144 (1994); Scott v. Pacific West Mountain Resort, 119 Wn.2d at 500-01; Gleason [*412] v. Cohen, 192 Wn. App. at 797; Lascheid v. City of Kennewick, 137 Wn. App. 633, 641-42, 154 P.3d 307 (2007); Taylor v. Baseball Club of Seattle, LP, 132 Wn. App. 32, 37-39, 130 P.3d 835 (2006); Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996).
¶25 [HN19] The classic example of inherent peril assumption involves participation in sports when a participant knows that the risk of injury is a natural part of such participation. Gleason v. Cohen, 192 Wn. App. at 798. One who engages in sports assumes the risks that are inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798.
[16] ¶26 [HN20] Inherent peril assumption extends to water sports. One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity. DeWick v. Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592, 594 (2000). This assumption of risk includes inner tubing on water and canoe rentals. Record v. Reason, 73 Cal. App. 4th 472, 86 Cal. Rptr. 2d 547 (1999); Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 39 N.Y.S.3d 522 (2016). Bodies of water often undergo change, and changing conditions in the water [**14] do not alter the assumption of risk. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594. There is no duty to warn of the presence of natural transitory conditions. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594.
¶27 DeWick v. Village of Penn Yan, 275 A.D.2d 1011 is illustrative of the application of inherent peril assumption in the context of water. Trina Kerrick and Daniel DeWick [*413] drowned in Keuka Lake on June 19, 1995. Kerrick allegedly gained access to the lake from the beach at Indian Pines Park, which was owned by defendant Village of Penn Yan. While wading in the water, she stepped from a sandbar where the lake bottom drops off and became caught in an undertow or current. DeWick drowned trying to save her. Neither could swim. The accident occurred on a hot day, four days before the beach officially opened for the season. The plaintiffs alleged that the village failed to warn specifically about the dangers of the drop-off and swift current. The court summarily dismissed the suit. The risk of reaching a drop-off was a reasonably foreseeable risk inherent in wading into a lake.
[17] ¶28 [HN21] Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily [**15] chose to encounter the risk. Kirk v. Washington State University, 109 Wn.2d at 453 (1987). The participant must know that the risk is present, and he or she must further understand its nature; his or her choice to incur it must be free and voluntary. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523. In the usual case, his or her knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his or her position must have understood the danger, the issue may be decided by the court. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523; Keeton et al., supra, § 68, at 489.
¶29 [HN22] The rule of both express and inherent peril assumption of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk. Kirk v. Washington State University, 109 Wn.2d at 453. Depending on how specific the risk must be, this statement of the rule taken literally would abrogate the rule of inherent peril assumption because one rarely, if ever, anticipates the full particulars of an accident producing injury. One can never predict all of the variables that [*414] combine to cause an accident and injury. Also, the doctrine might not apply in wrongful death cases, because the judge or jury will lack evidence of the subjective understanding of the decedent. Washington courts’ applications of the rule suggest, however, that the plaintiff need only know [**16] the general nature of the risk. One case example is Boyce v. West, 71 Wn. App. 657 (1993).
¶30 In Boyce v. West, a mother brought a suit against a college and its scuba diving instructor after the death of her son, who died during a scuba diving accident while engaging in the college course. The mother claimed the instructor negligently taught and supervised her son. The son, Peter Boyce, signed a document acknowledging the possibility of death from scuba diving and assuming all risks in connection with the course, whether foreseen or unforeseen. This court affirmed summary judgment dismissal of the claims against the school and the instructor. The court reasoned that negligent instruction and supervision are risks associated with being a student in a scuba diving course and were encompassed by the broad language of the contract. Although Peter may not have specifically considered the possibility of instructor negligence when he signed the release, this lack of consideration did not invalidate his express assumption of all risks associated with his participation in the course. [HN23] Knowledge of a particular risk is unnecessary when the plaintiff, by express agreement, assumes all risks.
¶31 Boyce v. West entails express assumption of [**17] risk, but [HN24] the same rule of subjective knowledge of risk applies to both express assumption and inherent peril assumption. Based on Boyce v. West and cases involving water sports, we hold that Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any [*415] fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river. He had more reason to know of the dangers that caused his injury when he started his excursion than Peter Boyce had reason to know of the risks that led to his death when Boyce signed his college course form. In the setting of inherent peril assumption, New York courts have ruled that, [HN25] if the participant fully comprehends the risks of the activity or if those risks are obvious or reasonably foreseeable, he or she has consented to those risks and the defendant has performed its duty. Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d at 938 (2016); Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986).
[18] ¶32 [HN26] While participants in sports are generally held to have impliedly assumed the risks [**18] inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 501; Gleason v. Cohen, 192 Wn. App. at 798. This principle leads us to a discussion of increased danger assumption.
[19] ¶33 [HN27] Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages. Barrett v. Lowe’s Home Centers, Inc., 179 Wn. App. 1, 6, 324 P.3d 688 (2013). This court warned long ago that courts must carefully draw the line between these two types of assumption of risk. Gleason v. Cohen, 192 Wn. App. at 795; Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. at 425-26 (1996). A rigorous application of inherent peril assumption of risk could undermine the purpose of comparative negligence. Kirk v. Washington State University, 109 Wn.2d at 455-56. Significantly, [HN28] inherent peril assumption is the exception rather than the rule in assumption of risk situations.
[20] ¶34 [HN29] Increased danger assumption of risk does not involve a plaintiff’s consent to relieve the defendant of a [*416] duty. Gleason v. Cohen, 192 Wn. App. at 796. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Gleason v. Cohen, 192 Wn. App. at 796. Specifically, increased danger assumption involves the plaintiff’s voluntary choice to encounter a risk created [**19] by the defendant’s negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499; Gleason v. Cohen, 192 Wn. App. at 796. Increased danger assumption of risk arises when the plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499 (1992); Gleason v. Cohen, 192 Wn. App. at 798. In such a case, a plaintiff’s conduct is not truly consensual but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk. Gleason v. Cohen, 192 Wn. App. at 796.
¶35 Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 927 P.2d 1148 (1996) presents a good illustration of increased danger assumption of risk. Michael Dorr entered a forest where his friend John Knecht cut trees. Dorr knew of the phenomenon of “widow-makers,” large limbs caught in surrounding trees after a tree is felled. Nevertheless, after Knecht cut a tree, Knecht waved Dorr forward to meet him. As Dorr proceeded, a large limb fell on him. This court affirmed a verdict favoring Dorr. Although Dorr in general assumed the risk of “widow-makers,” Knecht’s misleading directions led to implied unreasonable or secondary assumption of risk. The jury could still find and did find Dorr comparatively at fault for proceeding with the knowledge of “widow-makers,” but Dorr’s fault would be compared with Knecht’s fault. The negligence of Knecht [**20] arose after Dorr entered the forest.
[21] ¶36 Brian Pellham alleges that Let’s Go Tubing was negligent by reason of sending him and others on inner tubes in fast moving water with a downed tree in the middle [*417] of the water without warning to the tuber. Let’s Go Tubing did not create the risk and could not remove the risk. Although Pellham knew of the risks of logs and current, Pellham did not know of the precise risk when he first encountered it. When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.
¶37 Let’s Go Tubing performed no act that created the swift current or felled the log into the water. [HN30] The cases that decline application of inherent peril assumption involve a positive act of the defendant, such as the implanting of a post or snow shack adjacent to a ski run. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992); Brown v. Stevens Pass, Inc., 97 Wn. App. at 521 (1999).
¶38 One might argue that Let’s Go Tubing’s failure to warn increased the risk attended to the fallen log in the Yakima River. [HN31] A defendant may be held liable when a reasonable person would customarily [**21] instruct a plaintiff in respect to the dangers inherent in an activity. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Thus, a defendant may be held liable if the plaintiff alleges that a reasonable person would customarily warn, advise, inform, and instruct regarding the risk of injury to participants and the manner in which such risks could be minimized and their failure to do so caused the plaintiff’s injuries. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Brian Pellham presents no evidence that those who rent out watercrafts customarily warn of fallen natural objects in the water.
[22] ¶39 The document signed by Brian Pellham contained terms in addition to releasing Let’s Go Tubing from liability. In the instrument, Pellham also recognized that the hazards of river tubing included the existence of rocks, logs, plants, and variations in water depth and speed of [*418] current. Pellham agreed to assume full responsibility for all risks involved in river tubing, including serious injuries and death resulting from the hazards. Although we do not base our holding on express assumption of risk, we note that the release’s recitation of dangers warned Pellham of the inherent perils attended to inner tubing and those dangers that led to Pellham’s injuries.
Gross Negligence
¶40 Brian Pellham argues that the waiver [**22] form he signed does not bar a claim for gross negligence. The parties, in turn, devote much argument to the issue of whether Pellham creates a question of fact as to gross negligence. Since we do not rely on express assumption of risk, we need not directly address this argument. Instead, we must ask and answer whether a tuber may overcome the defense of inherent peril assumption of risk by showing gross negligence by the inner tube rental company.
¶41 [HN32] When inherent peril assumption of risk applies, the plaintiff’s consent negates any duty the defendant would have otherwise owed to the plaintiff. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498 (1992); Gleason v. Cohen, 192 Wn. App. at 798 (2016). Based on this premise of inherent peril assumption, the defendant should avoid liability for gross negligence. Gross negligence constitutes the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965). The lack of duty resulting from inherent peril assumption should extend to an absence of any obligation to exercise slight care.
¶42 At the same time, [HN33] gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk. [**23]
¶43 No Washington case directly holds that a claim for gross negligence survives the plaintiff’s express assumption [*419] of risk. Nevertheless, in at least two decisions, Washington courts assumed that a gross negligence cause of action endured. Boyce v. West, 71 Wn. App. 657 (1993); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (1981). In Boyce v. West, the surviving mother failed to present evidence of gross negligence. In Blide v. Rainier Mountaineering, Inc., an injured climber did not argue gross negligence. Other jurisdictions have held that express assumption of risk does not bar a claim for gross negligence since public policy does not allow one to exonerate oneself from gross negligence. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. Hoppe, 128 Nev. 910, 381 P.3d 630 (2012); Perez v. McConkey, 872 S.W.2d 897, 904 (Tenn. 1994).
¶44 [HN34] Since express assumption of risk and inherent peril assumption of risk both result in the bar of the plaintiff’s claim and arise from the plaintiff’s voluntary assumption of risk, one might argue that a gross negligence claim should survive assumption of risk by inherent peril if it survives express assumption of risk. Nevertheless, the two varieties of assumption of risk promote different interests and raise disparate concerns. A signed assumption of all risks could be the result of unequal bargaining power and apply to activities that involve little, or no, risks. The bargaining [**24] power with regard to inherent peril assumption is immaterial. Assumption follows from hazards the plaintiff voluntarily assumes because of the thrill and enjoyment of an activity.
[23] ¶45 We find no foreign decisions in which the court holds that a cause of action for gross negligence survives the application of inherent peril assumption of risk in the context of sports or outdoor recreation. Instead, other courts addressing the question consistently [HN35] limit the liability of the defendant, when inherent peril assumption applies, to intentional or reckless conduct of the defendant. Ellis v. Greater Cleveland R.T.A., 2014-Ohio-5549, 25 N.E.3d 503, 507 (Ct. App.); Custodi v. Town of Amherst, 20 N.Y.3d 83, [*420] 980 N.E.2d 933, 957 N.Y.S.2d 268 (2012); Cole v. Boy Scouts of America, 397 S.C. 247, 725 S.E.2d 476, 478 (2011); Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011); Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 808 (2006); Peart v. Ferro, 119 Cal. App. 4th 60, 13 Cal. Rptr. 3d 885, 898 (2004); Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1281 (2002); Behar v. Fox, 249 Mich. App. 314, 642 N.W.2d 426, 428 (2001); Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1365 (Ct. App. 1997); Savino v. Robertson, 273 Ill. App. 3d 811, 652 N.E.2d 1240, 1245, 210 Ill. Dec. 264 (1995); King v. Kayak Manufacturing Corp., 182 W. Va. 276, 387 S.E.2d 511, 518 (1989). A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Behar v. Fox, 642 N.W.2d at 428 (2001). We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.
¶46 [HN36] Gross negligence consists of the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d at 331 (1965). Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally [**25] does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her. Adkisson v. City of Seattle, 42 Wn.2d 676, 685, 258 P.2d 461 (1953); Brown v. Department of Social & Health Services, 190 Wn. App. 572, 590, 360 P.3d 875 (2015). Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.
[*421] CONCLUSION
¶47 We affirm the trial court’s summary judgment dismissal of Brian Pellham’s suit against Let’s Go Tubing.
Korsmo and Siddoway, JJ., concur.
LexisNexis Practice Guide: Washington Torts and Personal Injury
LexisNexis Practice Guide: Washington Trial and Post-Trial Civil Procedure
Annotated Revised Code of Washington by LexisNexis
Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Posted: July 3, 2017 Filed under: Assumption of the Risk, Ohio, Racing | Tags: assignments of error, Assumption of risk, curve, customary, driver's, Driving, eliminated, Express Assumption of the Risk, finish line, foreseeable, genuine, Go Kart, Go Karting, Guest, headband, host, Implied Assumption of the Risk, inform, Inherent Risks, intentionally, kart, paved, Primary Assumption of the Risk, Reckless, recreational activity, risk of injury, risks inherent, safe, Secondary Assumption of the Risk, Spectator, speed, Sport, Summary judgment, track 1 CommentSpectators are always the biggest risk of many outdoor recreational activities. Even if they are behind fences or lines, the creep closer to the event and if a competitor leaves the track or run, it is the event host who might pay for the damages to the spectators.
Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337
State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County
Plaintiff: Andrea Ochall et al.,
Defendant: William M. McNamer et al.,
Plaintiff Claims: negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium
Defendant Defenses: Assumption of the Risk
Holding: for the Defendants
Year: 2016
This court was almost tedious in its review of the facts and the application of the law to the facts in this case. This case is another one outside of the normal scope of this review; however, it covers assumption of the risk in infinite detail under Ohio’s law and deals with claims of spectators. Spectators are present at most sporting events and in some cases assume the risk, like the baseball rule at baseball games and sometimes do not.
The defendant land owner’s kids built a go-kart track. The decision involves a go-kart track in a homeowner’s back yard. The track was just a simple asphalt track. There were no barriers, no bleachers, nothing else except one bench. The land owner worked for a paving company so the track was paved. There was also a paved driveway from the barn where the go-karts were kept to the track. The track was built for no other purpose than for the use and enjoyment of the landowners and people they might invite over.
The track owner’s next-door neighbors used the track a lot and owned a go-kart that was stored with the landowner’s go-karts. However, the neighbors never used the track without asking permission before hand.
One day, the neighbors wanted to invite their friends to the track. Those friends became the plaintiffs.
Everyone took turns driving go-karts around the track, including the plaintiff. When not driving the go-karts, most of the people seemed to congregate on the asphalt drive between the track and the barn. The plaintiff argued this was a safe environment and the place to stand. There were no barriers between this or any place around the track and the track.
Various times during the day, different people drove off the track. After going off the track people simply drove back on the track and kept racing.
When not racing, the plaintiff was taking pictures. Taking pictures obscured the plaintiff’s view of what was going on sometimes.
During one race, the headband of one of the go-kart drivers slid down over her eyes. She grabbed the headband and through it off. While doing so she drove off the track striking the plaintiff.
The last picture the plaintiff took was the driver throwing her headband off.
The plaintiff’s sued the paving company the landowner worked for, as well as the landowner. The paving company was dismissed earlier on its motion and was not part of this discussion.
The plaintiff’s sued the landowner and the neighbors who invited them. The trial court dismissed the plaintiff’s claims based on various motions filed by the different defendants. The plaintiff appealed. The arguments presented in the various motions were boiled down to two and discussed without regard to the plaintiffs and all defendants even though they filed separate motions.
Analysis: making sense of the law based on these facts.
The appellate court first looked at assumption of the risk and whether it applied to this case. Assumption of the risk means the defendant owes the plaintiff no duty. Therefore, there is no negligence. Ohio recognizes three types of assumption of the risk: express, primary and secondary (implied).
Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” “Express assumption of the risk applies when parties expressly agree to release liability.” “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a known risk that acts as a defense to plaintiff’s action.”
Primary assumption of the risk is the defense that is applied to people who voluntarily engage in sports or recreational activities.
Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.”
The argument for this is some sports or recreational activities cannot be played without risk. If the risk is removed from the sport, then the value in playing or the sport disappears. Another baseball example is the batter assumes the risk of being hit by a badly thrown pitch. If you remove that risk, the batter has nothing to swing at and there is no game of baseball.
By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.”
Ohio law applies the doctrine of primary assumption of the risk to participants and spectators alike [emphasize added].
Thus, courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of owners, operators, and sponsors of recreational activities. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. The doctrine also applies to spectators and participants alike.
Assumption of the risk when applied to a sport or recreational activity is not dependent upon the plaintiff’s knowledge and appreciation of the risks of the sport or activity. Normally to assume the risk a person must know and understand the risk as required in primary assumption of the risk. In sporting or recreational activities, knowledge of the risk is immaterial. Whether a participant assumes the risk is solely based on the risks of the sport, not what the participant knows.
Furthermore, when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” (Noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.”
Those risks that apply are the ones directly associated with the activity. Consequently, a court must proceed with caution when examining the activity and the risks because assumption of the risk is a complete bar because no negligence can be proved. Was the risk that injured the plaintiff a risk of the sport and if so, was that risk increased by the activity of the defendant. If the risks are part and parcel of the sport, then the defendant does not owe a duty to the plaintiff.
[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.”
The doctrine of applying primary assumption of the risk to sports and recreational activities was created to ensure the sport was played vigorously and freely without fear of reprisal.
The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”);…
That doctrine then defines primary assumption of the risk when applied to a sport as:
…where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.’
The test is then applied with a three-part test.
Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists.
Risks that are “foreseeable, common, and customary risks of the activity” are therefore assumed by participants whether they knew of the risks or not. The Ohio Supreme Court further defined the definition to mean “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.’”
Looking at the risks of go-karting the court found that it was an inherent risk of the sport for a go-kart to leave the track. (Since go-karts had been leaving the track all day, this seems pretty implicit and also gives the plaintiff notice of the risk, although not required by the definition of primary assumption of the risk.)
Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object, which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons.
Primary assumption of the risk barred the claims of the plaintiffs.
The court then looked at whether the actions of the driver who left the track and struck the plaintiff where reckless which would defeat the defense of assumption of the risk. The court looked at the definition of recklessness under Ohio’s law.
An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.
That conduct must be measured against how the sport is played.
What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.”
Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.”
The plaintiff argued the defendants were reckless in failing to inform the plaintiff of the rules of the track. The court found there were no rules and there was no obligation to create them. The track was a backyard track built by the songs of the landowner for their enjoyment. There were no rules nor was there a requirement for the landowner to create rules for the use of the track.
Additionally, there is no duty to reduce or eliminate the risks of a recreational activity. The only duty is to not increase the risk of the activity. Consequently, the land owners did not owe a duty to create rules for the track or to inform the spectators of any rules if they were created.
Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity
The son of the landowner who built the track stated he had a ruled that spectators should stay in the barn. However, he had never enforced the rule. The court found that rule of no real value and no duty to create, enforce it or tell the plaintiff about it.
Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.
There was a bench located near the track. The defendant land owner’s son argued it was for racers to sit on between races to rest. The plaintiff argued it was there for spectators and built to entice the plaintiff to stand near it where she was injured. However, the court did not agree with this argument either.
However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.”
The plaintiff’s then argued it was reckless of the defendants to conceal the dangers of the track by failing to warn them of the risks or educating them of the dangers. However, they could not tie these arguments, failing to warn, to the injury received by the plaintiff. The court found even if they had been informed of the risks, it would not have changed anything; the plaintiff would still have probably been injured.
Another recklessness claim was directed at the adults in charge of the minor driver who injured the plaintiff when she drove off the track. However, again, they could not relate those claims to the cause of the accident.
Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident.
Finally, the plaintiff claimed the minor driver was reckless in how she drove.
Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall.
This argument failed because reckless conduct is a conscious act. There was no conscious decision to drive off the track. The decision was to remove the headband when it was blinding her.
…reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man
The court could not find in the plaintiff’s recklessness arguments, a proximate cause or a relationship in the arguments that might have or would have changed the way things happened.
However, every tragic accident does not result in tort liability. Because Mrs. Ochall primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.
The appellate court agreed with the trial court, and the case was dismissed.
So Now What?
The first issue is assumption of the risk applies to spectators. Spectators have always been the unknown possible lawsuit at events. Spectators usually pay to see the event so recreational use statutes provide no protection. They do not sign releases because they are not participating. However, based on this definition of assumption of the risk and the idea that a spectator should assume the risk because they watch the sport, a spectator is prevented from sung when injured under Ohio Law.
The second issue is the clear definitions of assumption of the risk defined in this.
On a side note, the plaintiff hired an expert witness who opined that the landowner should have built a small elevated wooden platform for spectators to stand on next to the track.
Hawn stated that a “reasonable solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.”
The expert also opined that the spectator’s area should have been relocated to the inside of the track and elevated. (So you have a group of people above the track level all turning around together to watch the race……)
Can you see what would happen at backyard playgrounds, sandboxes and every other play or recreational device in backyards? Sand boxes would have to come with sneeze guards you see on salad bars so sand could not accidentally be thrown in a grandparent’s face.
What do you think? Leave a comment.
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Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337
Posted: June 23, 2017 Filed under: Assumption of the Risk, Legal Case, Ohio | Tags: assignments of error, Assumption of risk, curve, customary, driver's, Driving, eliminated, Express Assumption of the Risk, finish line, foreseeable, genuine, Go Kart, Go Karting, Guest, headband, host, Implied Assumption of the Risk, inform, Inherent Risks, intentionally, kart, paved, Primary Assumption of the Risk, Reckless, recreational activity, risk of injury, risks inherent, safe, Secondary Assumption of the Risk, Spectator, speed, Sport, Summary judgment, track Leave a commentOchall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337
Andrea Ochall et al., Plaintiffs-Appellants/Cross-Appellees, v. William M. McNamer et al., Defendants-Appellees, Mark McMillen et al., Defendants-Appellees/Cross-Appellants.
No. 15AP-772
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
2016-Ohio-8493; 2016 Ohio App. LEXIS 5337
December 29, 2016, Rendered
PRIOR HISTORY: [**1] APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 14CV-5498).
DISPOSITION: Judgment affirmed.
COUNSEL: On brief: Kitrick, Lewis & Harris, Co. LPA, Mark Lewis, Mark Kitrick, and Elizabeth Mote, for appellants. Argued: Mark Lewis.
On brief: The Carr Law Office, LLC, Adam E. Carr, and Eric K. Grinnell, for appellees William M. and Elizabeth McNamer. Argued: Adam E. Carr.
On brief: Lane Alton, Joseph A. Gerling, and Monica L. Waller, for appellees/cross-appellants Sharon and Mark McMillen. Argued: Monica L. Waller.
On brief: Hollern & Associates, and Edwin J. Hollern, for appellees James Porter and Jane Doe # 1. Argued: Edwin J. Hollern.
JUDGES: KLATT, J. SADLER, J., concurs. DORRIAN, P.J., concurs in and part dissents in part.
OPINION BY: KLATT
OPINION
(REGULAR CALENDAR)
DECISION
KLATT, J.
[*P1] Plaintiffs-appellants, Andrea Ochall, her husband Robert Ochall, and their two minor children, appeal from a judgment of the Franklin County Court of Common Pleas, granting the motions for summary judgment of defendants-appellees, Sharon and Mark McMillen, James Porter and his minor daughter, Jane Doe, and William and Elizabeth McNamer (“Liz”). For the reasons which follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
[*P2] On May 23, 2014, appellants [**2] filed a complaint against the McNamers, the McMillens, Porter, Doe, McMillen Paving and Sealing, Inc. (“MP&S”), and McMillen Paving, Inc. The complaint asserted claims for negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium. The events giving rise to the complaint occurred on September 20, 2013, when Mrs. Ochall was seriously injured while watching a go-kart race on the McMillens’ property.
[*P3] On the day of the incident, the McNamers had invited the Ochalls to their home in Hilliard, Ohio, for the purpose of using the go-kart track located on the McMillens’ property. The McNamers and the McMillens are next-door neighbors and very good friends. Liz McNamer and Robert Ochall are co-workers, and Liz McNamer had previously invited the Ochalls over to use the McMillens go-kart track in 2011. The Ochall family, both the adults and their two children, drove go-karts on the McMillens’ track during their visit in 2011. The Ochalls, however, had never met the McMillens before filing the [**3] present lawsuit.
[*P4] The McMillens’ son, Brian McMillen, with assistance from his younger brother Scott, constructed the go-kart track in the McMillens’ backyard between 1994-1995, when Brian was between the ages of 18 and 19-years-old. The McMillens own and operate a paving and sealing company, MP&S. Brian is now the vice president of MP&S, but was not when he originally constructed the track.
[*P5] Brian and his brother built the track in their spare time, and used some company equipment to build it. The McMillens routinely used company equipment on their home projects. Brian explained that the track “basically is a twisted up driveway.” (Jan. 5, 2015 Brian McMillen Dep. at 62.) The McMillens have never charged anyone money to use the track and they do not operate the track commercially, it is something they simply use “to [their] liking.” Id. at 88.
[*P6] Although the McNamers and the McMillens are close frends, the McNamers would always ask the McMillens for permission before bringing guests over to use the track. Thus, prior to the Ochalls’ 2013 visit, Liz McNamer asked the McMillens if they could bring the Ochalls over to use the track. The McMillens said yes, and Mark McMillen opened the McMillens’ [**4] barn and prepared the go-karts for the group’s use.
[*P7] The McMillens own five go-karts and the McNamers own one go-kart, but the go-karts are all the same make and model. Brian McMillen purchased all the go-karts from the same vendor shortly after he constructed the track, and the McNamers paid the McMillens directly for their one go-kart. Brian explained that he selected these specific go-karts because he “didn’t want to go so fast out there” so that people would “need helmets.” Id. at 109. Brian noted that the go-karts have “a bumper, * * * a full harness and had a roll cage,” and could reach a maximum speed of 28 miles per hour. Id. Brian also noted that he could not “recall whether or not we actually got a manual for the karts,” noting that he did not “remember even seeing a manual.” Id. at 115. The go-karts all have stickers on the back which advise the drivers that there is no bumping.
[*P8] The McMillens store their go-karts in their barn, and there is a paved driveway which connects the barn to the track. The driveway connects with the track at the track’s start/finish line. Porter explained that people would generally congregate on the paved area next to the start/finish line in order “to trade positions [**5] with the drivers or to watch people driving by.” (Dec. 30, 2014 James J. Porter Dep. at 41.) Liz McNamer stated that she “always stood” on the paved area near the start/finish line when she was at the track. (Feb. 10, 2015 Elizabeth G. McNamer Dep. at 56-57.) Mrs. Ochall stated that, during her visit in 2011, she was “instructed to stand in that — that particular area” by Liz McNamer. (Dec. 4, 2014 Andrea L. Ochall Dep. at 29.) No one told Mrs. Ochall where to stand during the 2013 visit. Id. at 135-36.
[*P9] Brian McMillen testified that he designed the track “not to have any spectators.” (B. McMillen Dep. at 168.) Brian explained that, when he took “people out there, that’s part of my deal: Stay up in the barn until you come up and get in a kart.” Id. at 175. He also noted that anyone at the track had to “be aware. You’ve got cars going around the track. You have to be aware that that’s an issue.” Id. Mark McMillen had placed a bench at the back edge of that paved area next to the start/finish line. Brian explained that the bench was “by no means a bleacher,” as it was there simply for drivers to rest on between and after races. Id. at 170-71.
[*P10] There are no barriers around the McMillens’ go-kart track, only painted edge lines. [**6] Brian McMillen explained that he purposely did not construct barriers because barriers “would just be something for a kart to hit,” and would “give a much greater probability of making a car go airborn and possible flipping.” Id. at 168, 232. Accordingly, when driving on the McMillens’ go-kart track, “there are times you go off the track on a turn or you veer off for some reason or another. * * * And that happens regularly.” (J. Porter Dep. at 38.) Liz McNamer noted that she “went off into the grass” the first time she drove on the track. (L. McNamer Dep. at 40, 42.) She explained that it was “safe” for a driver to “go off the track and come back on.” Id. at 108-09. Porter noted that he had seen go-karts go off the track on the “big turns, * * * on the little turns, * * * on the straightaways,” and specifically stated that he had seen go-karts go off the track “coming out that final turn into the start/stop” area. (J. Porter Dep. at 38-39; 45-46.)
[*P11] On the day of the incident, the Ochalls arrived with their two minor children, and two of their children’s friends. The McNamers’ son-in-law, Porter, was also present with his daughter, and the McNamers’ granddaughter, Doe. Doe was 11 years old; the Ochall children [**7] and their friends were all 13 years old. The group met at the McNamers’ house, and walked through the adjoining backyards to the McMillens’ go-kart track. The McMillens were not present at the track; Sharon McMillen was at the grocery store and Mark McMillen was inside his home watching a football game.
[*P12] Liz McNamer gave the group instructions regarding how to operate the go-karts, telling them, “the gas was on one side, the brake was on the other, the steering wheel.” (L. McNamer Dep. at 103.) Liz McNamer observed the children as they drove, noting that “[t]hey seemed to be doing pretty well. They seemed like they were able to manage going around the track.” Id. at 106. Liz McNamer noted that she watched the children driving to make sure that no one was “at risk,” and noted that she “didn’t see that.” Id. at 117.
[*P13] There were more people than go-karts during the 2013 event, so both the adults and the children rotated using the go-karts throughout the day. As was typical at the McMillens’ track, multiple drivers drove off the track that day. Doe’s go-kart came all the way off the track and went into the grass, and Porter’s go-kart came partially off the track. One of the Ochall children drove off the track, “[a]ll [**8] four wheels were off the track,” and Porter “had to push him out.” (J. Porter Dep. at 93, 95-96.) Liz McNamer stated that she “observed that day each child went off the track at some capacity.” (L. McNamer Dep. at 109.) Liz McNamer testified that, when Doe’s go-kart left the track earlier in the day, she spoke to her granddaughter and “cautioned her and advised her just to be careful. The ground was pretty saturated. * * * There was water standing, so I just wanted her to be aware and, you know, just cautioned her.” (L. McNamer Dep. at 129.)
[*P14] Mrs. Ochall was aware that there were “no barriers, there’s no safety barriers” around the track. (A. Ochall Dep. at 137.) Mrs. Ochall also witnessed go-karts driving off the track on the day of the incident, and admitted that she knew “that [a go-kart] could come off the track.” Id. at 139. Indeed, two photographs Mrs. Ochall took that day depict go-karts which had driven partially and completely off the track. (See A. Ochall Dep; Defs.’ Exs. 3 and 4.) However, Mrs. Ochall believed that the paved area next to the start/finish line was “a safe environment. That is a safe zone.” (A. Ochall Dep. at 137.) No one ever told Mrs. Ochall that the paved area was [**9] a safe zone. (See Dec. 4, 2014 Robert W. Ochall Dep. at 13; A. Ochall Dep. at 191.)
[*P15] Mrs. Ochall drove a go-kart on the day of the incident. After driving, she stood around the track taking pictures. Mrs. Ochall’s camera had a telephoto lens, and there was a cup she had to put her eye up to in order to use the camera. Because she was taking pictures “one right after the other,” Mrs. Ochall admitted that she was “[n]ot always” able to see what was going on around her. Id. at 139-40. She admitted that her vision was “[p]robably” obstructed by her camera. Id. at 140.
[*P16] After one to two hours at the track, the group decided they would hold one last race. Porter, Mr. and Mrs. Ochall, Mr. and Mrs. McNamer, and an Ochall child were all standing in the paved area adjoining the track near the start/finish line; the others participated in the race. During the second lap of the race, as Doe came into the turn which approached the start/finish area, “her hair band went over her eyes. She had grabbed it and thrown it off to get better vision. So as she grabbed it and thrown it off, * * * she went straight through” the paved area next to the track and struck Mrs. Ochall. (J. Porter Dep. at 117.) Mrs. Ochall was standing “10-12 feet to [**10] the south of the painted edge line which delineated the marked boundary of the track surface” when the accident occurred. (Pls.’ Ex. C., Apr. 9, 2013 Choya R. Hawn Acc. Reconstruction Report at 8.) Porter noted that, the cars are “hard to steer with one hand,” so when Doe threw her headband “she kind of jerked as well,” which caused her to veer off the track. (J. Porter Dep. at 117.) Doe confirmed these events and told her father immediately after the incident that her “headband slipped over her eyes, and she threw it out and lost control.” Id. at 130.
[*P17] Doe’s go-kart struck Mrs. Ochall directly and flung her into the air. When Mrs. Ochall landed, she suffered a serious spinal cord injury. The last photograph Mrs. Ochall took that day depicts Doe throwing her headband. (See A. Ochall Dep.; Defs.’ Ex. 5.) Prior to Mrs. Ochall’s injury, no one had ever been injured at the McMillens’ go-kart track. (L. McNamer Dep. at 44-45.)
[*P18] Although each defendant filed separate motions for summary judgment, all defendants alleged that the doctrine of primary assumption of risk barred appellants’ negligence claims, and that there was no evidence of reckless or intentional misconduct. The McMillens further asserted [**11] that, as they did not invite the Ochalls to their property, they could not be considered the social hosts of the Ochalls. The McNamers asserted that, as they were not the property owners, they could not be held liable for any condition on the McMillens property. MP&S and McMillen Paving, Inc. argued that McMillen Paving, Inc. was a shell corporation with no assets, and that MP&S did not design or construct the track.
[*P19] Appellants filed a memorandum contra the defendants’ motions for summary judgment, asserting that “[n]othing occurred to alert [Mrs. Ochall] to any danger of go-karts driving into spectators in the seating area.” (Apr. 14, 2015 Pls.’ Memo. Contra at 8.) Appellants argued that primary assumption of the risk did not apply to the facts of this case, because the track was designed defectively and because all of the defendants had acted recklessly.
[*P20] Appellants supported their memorandum contra with the report of their accident reconstruction expert, Choya Hawn. Hawn observed that, “[i]n the absence of any persons afoot the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) (Acc. Reconstruction Report at 13.) Hawn stated that a “reasonable [**12] solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Id. at 16. Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.” Id. at 16, 18.
[*P21] On May 6, 2015, the court issued a decision and entry denying the McMillens’ motion for summary judgment, in part, and granting the business entities’ motion for summary judgment. The court concluded that, as the McNamers had asked the McMillens if they could bring the Ochalls to the McMillens property, and the McMillens had granted the McNamers permission to do so, “an implied invitation between the McMillens and Plaintiffs occurred.” (May 6, 2015 Decision & Entry at 4.) As such, the court concluded that the Ochalls were the social guests of the McMillens. Regarding the entities, the court determined that McMillen Paving, Inc. had “never performed any business nor held assets, and never acted in the creation of the go-kart [**13] track,” such that the company was an “inappropriate party to the suit.” Id. at 5. Regarding MP&S, the court concluded that the company “was not employed to create or maintain the go-kart track,” and that Brian McMillen was not acting in his capacity as an employee of the company when he constructed the track. Id.
[*P22] On July 31, 2015, the trial court issued a decision and entry granting the McMillens’, the McNamers’, and Porter’s and Doe’s motions for summary judgment. The court observed that go-karting is a recreational activity, and concluded that, “[s]ince the risk of being injured by a go-kart leaving the track [was] a foreseeable risk of go-kart racing on the McMillen track,” the risk was “inherent to go-kart racing on a private, barrier-less backyard track.” (July 31, 2015 Decision & Entry at 7-8.) As such, the court concluded that primary assumption of the risk applied to bar appellants’ negligence claims, and that appellants could only recover if the defendants acted intentionally or recklessly to cause Mrs. Ochall’s injuries.
[*P23] The “parties agree[d] that no one acted intentionally to injure Andrea Ochall on that day.” Id. at 8. Accordingly, the court addressed whether any of the defendants engaged in reckless [**14] misconduct. Appellants argued that the defendants were reckless because they failed to enforce Brian McMillen’s no-spectator rule. The court observed that, while Brian McMillen had a no-spectator rule when he was at the track, Brian was not the property owner, and neither the McMillens nor Brian McMillen acknowledged Brian’s personal rule as a track rule. As such, the court concluded that “not allowing adult spectators at or near the track for races [was] not a rule, regulation, custom, or common practice of the track or races conducted at the McMillen track.” Id. at 11. The court also addressed appellants’ argument that the defendants were reckless because they had not read or implemented safety guidelines from the go-kart manufacturer’s or owner’s manuals. The court concluded that no defendant had a duty to inform appellants about those safety guidelines.
[*P24] Regarding the McMillens, the court noted that, as the property owners, the McMillens had no duty to improve their track, as they only had a duty to “exercise ordinary care to prepare the property for social guests.” Id. at 12. Accordingly, the McMillens did not have “a duty to instruct guests on how to go-kart race or to implement any rules other [**15] than those which the family uses on their land.” Id. at 14. The court observed that the McMillens merely allowed their neighbors and their neighbor’s guests to use their go-kart track. As such, the court did not find any evidence of reckless conduct by the McMillens.
[*P25] Regarding the McNamers, the court noted that the McNamers similarly “did not have a duty to instruct guests on how to drive a go-kart.” Id. at 16. Regarding the McNamers supervision of Doe, the court noted that Liz McNamer told her granddaughter once to slow down. The court observed that “[a] single admonishment by a grandparent in the presence of the child’s parent” was “not sufficient evidence of recklessness.” Id. at 19. As there was no evidence indicating that the McNamers told appellants “they ‘had to’ stand on the adjacent asphalt area,” and as Liz McNamer also stood on the adjacent asphalt area, the court could not find that the “McNamer’s action of standing on the adjacent area rose to the level of reckless required by the theory of primary assumption of the risk.” Id. at 20.
[*P26] Regarding Doe, the court concluded that Doe was not reckless, “because removing a hand from the steering wheel to clear one’s vision is the lesser of two evils. * * * [Doe] [**16] did not intentionally drive into the spectator area, but was unable to correct her kart’s path in time to not strike Plaintiff.” Id. at 21. Regarding appellants claim that Porter was reckless by not removing Doe from the track earlier in the day, the court concluded that, as there was no evidence demonstrating that Doe was driving recklessly throughout the day, there was no reason why Porter should have removed Doe from the track.
[*P27] Accordingly, the court concluded that primary assumption of the risk applied to the case, and that there was no evidence of reckless or intentional misconduct. As such, the court found the defendants entitled to summary judgment as a matter of law.
II. ASSIGNMENTS OF ERROR
[*P28] Appellants appeal, assigning the following two assignments of error for our review:
1. THE TRIAL COURT ERRED APPLYING PRIMARY ASSUMPTION OF THE RISK TO HOLD THAT DEFENDANTS-APPELLEES WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW.
2. THE TRIAL COURT ERRED IN HOLDING THAT THERE EXISTED NO GENUINE ISSUES OF MATERIAL FACT CONCERNING DEFENDANTS-APPELLEES’ RECKLESS-NESS, THUS ENTITLING THEM TO JUDGMENT AS A MATTER OF LAW.
The McMillens have also filed a contingent cross-appeal, asserting the following sole, [**17] assignment of error:
The Trial Court erred in denying in part the Motion for Summary Judgment of Appellees/Cross-Appellants Sharon McMillen and Mark McMillen and concluding that Appellants were social guests of the McMillens rather than licensees. The McMillens’ assignment of error is conditional upon the Courts’ ruling on the assignment of error of Appellants. If the Court overrules Appellants’ assignment of error, the McMillens will withdraw the cross-appeal.
III. STANDARD OF REVIEW
[*P29] [HN1] Appellate review of summary judgment motions is de novo. Helton v. Scioto County Bd. of Comm’rs, 123 Ohio App. 3d 158, 162, 703 N.E.2d 841 (4th Dist.1997). “When reviewing a trial court’s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc Corp., 122 Ohio App. 3d 100, 103, 701 N.E.2d 383 (12th Dist.1997). We must affirm the trial court’s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327 (9th Dist.1995).
[*P30] [HN2] Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse [**18] to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party’s favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St. 3d 181, 183, 1997 Ohio 221, 677 N.E.2d 343 (1997).
[*P31] [HN3] When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party’s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264 (1996). A moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. Id. If the moving party meets this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.
IV. FIRST ASSIGNMENT OF [**19] ERROR — PRIMARY ASSUMPTION OF RISK
[*P32] Appellants’ first assignment of error asserts that the trial court erred by applying the doctrine of primary assumption of the risk to the instant dispute. Appellants asserted various negligence claims against the defendants, and [HN4] “in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981), citing Feldman v. Howard, 10 Ohio St.2d 189, 193, 226 N.E.2d 564 (1967). “[A] successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law.” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996).
[*P33] [HN5] “Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 21 (10th Dist.), citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 10, 924 N.E.2d 906 (10th Dist.). “Express assumption of the risk applies when parties expressly agree to release liability.” Crace at ¶ 11. “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987). “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a [**20] known risk that acts as a defense to plaintiff’s action.” Id.
[*P34] [HN6] “Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 13, citing Crace at ¶ 13, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, ¶ 12, 857 N.E.2d 1255 (10th Dist.). See also Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), paragraph one of the syllabus. “The rationale is that certain risks are so inherent in some activities that the risk of injury is unavoidable.” Crace at ¶ 13, citing Collier at 37. By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” Santho at ¶ 12.
[*P35] Thus, [HN7] courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of [**21] owners, operators, and sponsors of recreational activities. Crace at ¶ 12, 20. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 8, 802 N.E.2d 1116. The doctrine also applies to spectators and participants alike. Id. at ¶ 10.
[*P36] Furthermore, [HN8] when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” Crace at ¶ 16, citing Gentry at ¶ 9. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 10 (noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997). See Rees v. Cleveland Indians Baseball Co., 8th Dist. No. 84183, 2004-Ohio-6112, ¶ 20, quoting Gum v. Cleveland Elec. Illuminating Co., 8th Dist. No. 70833, 1997 Ohio App. LEXIS 503 (Feb. 13, 1997) (explaining that “‘the baseball fan assumes the risk of being hit by a foul ball when [**22] he takes his place in the stands, not at the moment the foul ball comes flying his way'”). Accordingly, Mrs. Ochall’s personal belief that the paved area next to the track was a safe zone is irrelevant to the primary assumption of the risk analysis.
[*P37] [HN9] “‘[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Gallagher at 432. “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.” Morgan at ¶ 14, citing Crace at ¶ 15. See also Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-4744, ¶ 11. “Because of the great impact a ruling in favor of a defendant on primary assumption of risk grounds carries, a trial court must proceed with caution when contemplating whether primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher at 432.
[*P38] [HN10] The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” Marchetti at 99. See also Ferrari v. Grand Canyon Dories, 38 Cal. Rptr. 2d 65, 32 Cal. App. 4th 248, 253 (observing [**23] that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 33 Cal. Rptr. 2d 777, 28 Cal. App. 4th 558, 565 (noting that “[d]uty is constricted in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).
[*P39] [HN11] Whether to apply the affirmative defense of primary assumption of the risk presents an issue of law for the court to determine. Crace at ¶ 12, citing Gallagher at 435. We therefore review the trial court’s application of the doctrine de novo. Id.
[*P40] Appellants contend that the trial court disregarded relevant authority when it “looked only to ‘foreseeable’ and ‘common’ risks to invoke the doctrine.” (Appellant’s brief, at 16.) Appellants assert that the trial court “misunderstood and misapplied Ohio law” when it held that the risks which are foreseeable and common in the course of a sport or activity are the inherent risks of the activity. Id. at 16-17. The trial court observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part of the activity.'” [**24] (Decision & Entry at 4, quoting Gentry at 144.)
[*P41] In Gentry the Supreme Court of Ohio held that [HN12] “where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.'” Id. at ¶ 10, quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104, 559 N.E.2d 705 (1990), modified on other grounds by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The court in Gentry noted that, “[o]bviously,” in Thompson, the court had “applied ‘primary’ assumption-of-risk principles in limiting the defendant’s liability.” Id. at ¶ 11. See Thompson at 106 (noting that, because “[s]hanking the ball is a foreseeable and not uncommon occurrence in the game of golf,” the plaintiff primarily assumed the risk of being hit by a golf ball by playing the game of golf).
[*P42] [HN13] Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. See Santho at ¶ 13 (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists. See id. (noting that it is “foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with [**25] the barriers that set the perimeter of the skating surface”); Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 180-81, 3 Ohio Law Abs. 164, 147 N.E. 86 (1925) (noting that it is “common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof”).
[*P43] Thus, [HN14] for primary assumption of the risk purposes, the risks inherent in an activity are the foreseeable, common, and customary risks of the activity. See also Foggin v. Fire Protection Specialists, Inc., 10th Dist. No. 12AP-1078, 2013-Ohio-5541, ¶ 9 (noting that the “types of risks associated with the activity are those that are foreseeable and customary risks of the activity”); Deutsch v. Birk, 189 Ohio App.3d 129, 2010-Ohio-3564, ¶ 13, 937 N.E.2d 638 (12th Dist.). Accordingly, the trial court did not err by concluding that the foreseeable and cutomary risks of an activity are the inherent risks of the activity. See Gentry at ¶ 10, quoting Thompson at 104 (primary assumption of the risk applies to “‘conduct that is a foreseeable, customary part’ of the activity”).
[*P44] Appellants further contend that the the “trial court improperly applied the doctrine when it failed to analyze whether the risks that injured Plaintiff-Appellant were inherent, necessary or unavoidable, [**26] i.e., whether they could be eliminated.” (Appellant’s brief, at 17.) Appellants assert that the trial court “ignored” the “various ways” the danger to spectators “could have been eliminated.” Id. at 23. Relying on the accident reconstruction report, appellants assert that “the ‘potential’ danger to spectators could have been easily eliminated by (1) moving the spectator area, (2) elevating the spectator area by wooden deck, (3) installing simple barriers between the track and spectators, or (4) warning guests about the no-spectator rule.” Id. Appellants, however, misconstrue the meaning of risks which “cannot be eliminated.”
[*P45] [HN15] The Supreme Court of Ohio has held that “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath at ¶ 19, quoting Konesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). In Horvath, the court observed that “collisions between skiers are an inherent risk of skiing,” as “‘other skiers are as much a part of the risk in downhill skiing, if not more so than the snow and ice, elevation, contour, speed and weather conditions.'” Id. at ¶ 20, quoting Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 511, 762 A.2d 339 (2000). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 25 (noting that, “by its very nature, karate, [**27] as a martial art, is an inherently dangerous activity from which the risk of harm cannot be eliminated”). To determine the risks which are so inherent in an activity that they cannot be eliminated, a court must “focus[] exclusively upon the activity itself.” Schnetz at ¶ 28. See also Crace at ¶ 25.
[*P46] For example, in Brumage v. Green, 2d Dist. No. 2014-CA-7, 2014-Ohio-2552, the court observed that “‘[l]osing control and flipping an ATV is a foreseeable and customary risk associated with the activity of driving or riding on an ATV.'” Id. at ¶ 14, quoting Curtis v. Schmid, 5th Dist. No. 07 CAE 11 0065, 2008-Ohio-5239, ¶ 56. The plaintiff argued that certain factors specific to the incident, including that he was driving the ATV on a public roadway, made the risks he faced “greater than are customary in the recreational activity of riding ATVs.” Id. at ¶ 15. The court refused to address the plaintiff’s incident specific arguments, because “flipping off an ATV and getting injured is a risk that is inherent in the recreational activity of riding an ATV.” Id. at ¶ 16. The Brumage court observed that, “‘[w]hat causes the driver to lose control is better addressed when determining whether the driver acted intentionally, [or] recklessly.'” Id. at ¶ 16, quoting West v. Devendra, 7th [**28] Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 26, 985 N.E.2d 558. See also Morgan v. Kent State Univ. at ¶ 22, 25.
[*P47] Accordingly, in analyzing the risks inherent to go-karting, we must focus exclusively on the activity of go-karting, and not on the actions or omissions of the defendants in this case. See Crace at ¶ 25 (observing that, if the law treated participants differently from nonparticipants, the primary assumption of the risk analysis would shift “away from the activity and its inherent risks,” and would “unnecessarily focus upon the extent of the defendant’s involvement and the defendant’s classification as a participant, non-participant, * * * sponsor, provider, or otherwise,* * * with no regard for the inherent risks of the activity”). Appellants’ contentions regarding the things the defendants could have done to alter the McMillens’ track for the benefit of spectators essentially amount to claims that the various defendants were reckless. See Morgan v. Church of Christ at ¶ 16.
[*P48] Additionally, appellants’ arguments regarding the “risks to spectators” at the McMillens’ track improperly attempts to shift the focus of the analysis away from the risks inherent in the activity. (Appellant’s brief, at 20.) [HN16] Because the primary assumption [**29] of the risk analysis focuses on the risks inherent in the activity at issue, spectators and participants are treated the same. Indeed, “spectators as well as participants ‘must accept from a participant conduct associated with that sport’ or activity.” Gentry at ¶ 10, quoting Thompson at 104. See also Taylor v. Mathys, 3rd Dist. No. 14-04-32, 2005-Ohio-150, ¶ 10, citing Gentry at ¶ 6 (noting that primary assumption of the risk’s “limitation on liability extends to the spectators of a recreational activity as well as the participants”); Crace at ¶ 25. “‘[T]hose entirely ignorant of the risks of a sport, still assume the risk * * * by participating in a sport or simply by attending the game.'” Gentry at ¶ 12, quoting Gilles, From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law, 75 Temple L.Rev. 231, 236 (2002).
[*P49] Focusing on the activity at issue herein, we observe that go-karting is a recreational activity involving motorized go-karts which are propelled forward around a racetrack by a driver. During a race, a go-kart driver will attempt to drive their go-kart past the other go-karts in the race in order to be the first go-kart to cross the finish line. The joy of go-karting derives from attempting to maintain control over one’s go-kart while maneuvering, [**30] at speed, around the go-kart track and the other go-karts present on the track. Accordingly, [HN17] the inherent risks of go-karting include running into other go-karts on the track, or deviating from the track and running into any object present around the track. See Loewenthal v. Catskill Funland, 237 A.D.2d 262, 263, 654 N.Y.S.2d 169 (1997) (where the plaintiff’s “go-kart veered off its intended course, striking the wall in the pit area head on,” the court observed that, “[i]n riding the go-cart, the plaintiff * * * assumed the risks inherent in the activity,” which included that the “go-cart would bump into objects”); Garnett v. Strike Holdings LLC, 131 A.D.3d 817, 820, 15 N.Y.S.3d 786 (2015) (noting that “the operator of the track does not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart”). Compare Jussila v. United States Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn.App.1996) (noting that “a snowmobile takes on a more dangerous character when operated on a racetrack by competitors attempting to win races”).
[*P50] Accordingly, [HN18] the risk that a go-kart may veer off the track and strike any object present nearby is a risk inherent to go-karting. As such, Mrs. Ochall assumed that risk in the primary sense when she stood 10 to 12 feet away from the McMillens’ go-kart track while a go-kart race was in process.
[*P51] Appellants [**31] assert that the trial court erred “by conflating the duty analysis under primary assumption of the risk with the social host duty of care in premises liability cases.” (Appellant’s brief, at 27.) The trial court noted appellants’ argument that “a risk is not inherent if it can be eliminated with due care,” but concluded that, because “[d]efendants, as social hosts, did not have an additional duty to make adjustments to the private, residential track, * * * the risk in question [was] a risk inherent to go-kart racing on a private, barrier-less backyard track.” (Decision & Entry at 5, 7-8.) Appellants contend that the trial court’s analysis improperly mixed “duty with breach.” (Appellant’s brief, at 27.) We agree.
[*P52] The trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. Instead, the trial court wrongly focused on the defendants, and the duty they owed to appellants, rather than focusing on the activity at issue. See Schnetz at ¶ 30 (finding that the trial court erred by concluding that primary assumption of the risk did not apply “to inmate claims against a prison because a prison owes a duty of care to inmates in its custody and [**32] control,” as such a “holding shift[ed] the focus of the analysis away from the activity and its inherent risks and improperly focuse[d] upon the extent of the defendant’s involvement and the defendant’s classification”).
[*P53] Although the trial court erred by considering the defendants’ duty under the primary assumption of the risk analysis, this error does not amount to reversible error. Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons. See Phillips v. Dayton Power & Light Co., 93 Ohio App.3d 111, 115, 637 N.E.2d 963 (2d Dist.1994) (noting that, since the reviewing court must independently determine, as a matter of law, whether summary judgment was properly granted, “[a] summary judgment based on a legally erroneous analysis of the issues must be affirmed if the appellate court independently determines that upon the record summary judgment should have been rendered [**33] as a matter of law, albeit for different reasons”).
[*P54] Appellants assert that the trial court disregarded the two Ohio go-karting cases, Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999) and Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002), in reaching its summary judgment decision. The trial court noted the cases, but correctly found the cases inapplicable to the present dispute. (See Decision & Entry at 5-6.)
[*P55] In Reed the plaintiff was injured at a charity go-kart race being held on city streets. The race organizers had placed a four-foot high fence and bales of hay around the race perimeter to separate the sidewalk from the racetrack. The plaintiff was “initially watching the race from a spectator area,” but had moved to another area to watch the race, which was still “protected by the orange fencing” but had “fewer hay bales.” Id. Two go-kart drivers collided during the race, causing one go-kart to veer off the track and strike the plaintiff. The court stated that it was “not convinced that injury to a spectator [was] the kind of risk so inherent to the sport of go-kart racing that the appellant could be deemed to have consented to it.” Id. The court noted that the plaintiff “testified that she observed [**34] other accidents during go-kart races and that there had, in fact, been several other accidents on the day she was hit.” Id. The court concluded that simply observing other go-karts run into each other did “not mean that injury to spectators as a result of karts leaving the track [was] inherent to racing,” but stated that it “raise[d] a question of fact as to whether such risk was obvious to appellant.” Id.
[*P56] As Reed is a decision from the Third District Court of Appeals, it holds no precedential value in this district. Furthermore, as the Reed court failed to engage in a proper primary assumption of the risk analysis, we do not find the decision persuasive. Reed did not attempt to ascertain the risks inherent to the activity of go-karting. Instead, the court simply concluded that injury to spectators was not an inherent risk of go-karting. In so concluding, the court treated spectators differently from participants, in violation of Gentry. The Reed court also inappropriately considered the plaintiff’s subjective understanding of the risk, in further violation of Gentry.
[*P57] Unlike the present case which concerns a private, free, backyard go-kart track, in Goffe the plaintiff was a business invitee [**35] at a commercial go-kart track. The plaintiff was injured exiting her go-kart at the end of the ride when another driver accidently accelerated and “struck a parked go-cart in the off-loading area of the track,” which then “struck Ms. Goffe in the leg.” Id. The plaintiff alleged defective design had caused her injury because, at the end of the ride, a gate would funnel the go-karts “into a confined pit area so that a runaway go-cart had no option but to strike go-carts in the unloading area.” Id. The court observed that “[o]ne who rides an amusement device assumes the ordinary risks inherent in the ride, insofar as those risks are obvious and necessary, but only so long as the device is properly designed and the operator has used proper care in its construction and operation.” Id., citing Pierce v. Gooding Amusement Co., 55 Ohio Law Abs. 556, 90 N.E.2d 585 (1949). The court concluded that the business had breached its “duty of ordinary care to Ms. Goffe by desiging an amusement ride which created an unreasonable danger that the rider would be injured while exiting the ride but before reaching a place of safety.” Id.
[*P58] Relying on Goffe, appellants contend that primary assumption of the risk cannot apply in this matter, because defendants “enhanced the unusual risk [**36] to spectators by operating a defective track.” (Appellant’s brief, at 23.) Appellants assert that defendants “failed to design, build and operate the track to account for spectator safety by, among other steps, moving the spectator area inside the track and elevating it.” Id. at 24. Appellants argue that the track was defective because defendants “built and maintained a ‘short chute’ at the final high-banked turn to create faster go-kart speeds approaching the spectator area.” Id. However, there is no evidence in the record indicating that either the short-chute or the high-banked turn created faster go-kart speeds, or that these aspects of the track caused the accident.
[*P59] Brian McMillen explained that, in 2010-11, he “raised the elevation” on the curve approaching that start/finish area in order to “control flooding from the pond and the ground water.” (B. McMillen Dep. at 135.) The alteration resulted in the track “dropping three or four inches over that 30-40 feet” as a kart approached the straightaway into the start/finish line. Id. at 149. Brian referred to the straightaway as a “short chute,” explaining that a “short chute” is just a “small piece of straightaway between two turns.” Id. at 150. Notably, Brian [**37] confirmed that this alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” Id. at 149.
[*P60] Hawn concluded that “it was mathematically possible for a kart to be driven successfully through the high-banked curve at the south end of the track” approaching the start/finish area “at full (maximum) speed,” and explained that “[t]he laws of Newtonian physics dictate that if a kart were to exceed the critical speed of the high-banked curve or fail to maintain a traversable line through the curve, the kart will break tracation and likely slide towards the outside of the curve beyond the apex.” (Acc. Reconstruction Report at 10, 13. ) Hawn stated that Doe’s go-kart was travelling between 18 to 25 miles per hour when it struck Mrs. Ochall, “which was consistent with the critical speed calculations for the kart traversing the high-banked curve.” Id. at 11. Thus, Doe did not exceed the critical speed of the high-banked curve. Although Hawn referred to the high-banked curve as the “fastest curve of the track,” he did not find that the curve created unreasonably fast go-kart speeds or that the curve would cause a driver to lose control of their go-kart. Id. at 13.
[*P61] Indeed, Hawn [**38] concluded that the “design, layout, construction and overall environment of the track facility (with the generous clear zone) was reasonably safe for the ‘operators of the karts.'” Id. at 17. Hawn also stated that the “the original track design was in [his] opinion reasonably safe for the ‘go-kart operators.'” (Emphasis sic.) Id. at 15. Thus, appellants own expert concluded that the design of the track was safe. Appellants have failed to demonstrate a genuine issue of material fact regarding whether the track was designed defectively.
[*P62] Appellants’ contention that the McMillens’ track was defectively designed because there was no infield, elevated, spectator platform, does not amount to an argument that the track was designed defectively. An elevated viewing platform would not be part of the track itself; rather, it would be a separate structure near the track. Appellants’ contention that defendants should have constructed a viewing platform for spectators, or taken other actions for spectators, do not allege that the track itself was designed defectively, but are essentially claims that the defendants were reckless by failing to build a spectator platform.
[*P63] Based on the foregoing, we find that Mrs. Ochall [**39] primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track. Appellants’ first assignment of error is overruled.
V. SECOND ASSIGNMENT OF ERROR – RECKLESSNESS
[*P64] Appellants’ second assignment of error asserts that the trial court erred in finding no genuine issues of material fact regarding defendants’ recklessness.
[*P65] [HN19] An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.'” Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). “What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.” Thompson at 105.
[*P66] Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, [**40] it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.” Id. Conversley, “any conduct which is characterized by the strong probability of harm that recklessness entails, and which occurs outside the normal conduct and customs of the sport, may give rise to liability.” Id. In assessing recklessness, courts must recognize the “inverse relationship between duty and dangerousness,” as the “‘quid pro quo of an “assumed greater risk” is a diminished duty.'” Id., quoting Hanson v. Kynast, 38 Ohio App. 3d 58, 64, 526 N.E.2d 327 (5th Dist.1987).
[*P67] Appellants assert that the trial court “wrongly construed evidence regarding Defendants’ failure to warn Andrea Ochall about the track builder Brian McMillen’s design and rule prohibiting spectators in a light most favorable to [plaintiffs].” (Appellant’s brief, at 34.) Appellants assert that, construing the evidence in their favor, there are genuine issues of material fact regarding whether McMillens and/or McNamers disregarded Brian McMillen’s rule and “knowingly failed to warn or inform Andrea Ochall about the Brian McMillen’s design and policy.” Id. at 38.
[*P68] As noted above, Brian McMillen testified that he did not design the track to account for spectators. (B. McMillen Dep. [**41] 169.) Brian explained that he “rarely” had spectators at the track, but that when he did, he told them to “[s]tay up in the barn.” Id. at 172, 175. However, Brian also did not enforce his no-spectator rule when he was at the track. Brian noted that when the track was first built his “dad may come out or one of [his] friends may come out and stand somewhere in that vicinity,” of the paved area next to the start/finish line, “and watch us turn a couple laps.” Id. at 172. Brian stated that he had never kicked any spectator of the paved area next to the start/finish line. Id. at 182-83.
[*P69] Sharon McMillen noted that Brian told her “[a] couple of years ago” that he had a no-spectator rule when he was at the track, but she clarified that he never told her that the track wasn’t designed for spectators. (Feb. 10, 2015 Sharon McMillen Dep. at 104-05. Sharon noted that, when she was out at the track, she would stand “[u]sually in the grass out by the corner where the bench sits,” explaining that’s “just where we stand.” Id. at 100, 102. Sharon stated that she previously stood on the paved area next to the start/finish line when Brian was also present at the track, and that he never told her to move from that location. Id. at 130.
[*P70] Indeed, for adult spectators at the McMillens’ [**42] go-kart track, there “was no rule” regarding where they had to stand. Id. at 108-09. Sharon McMillen noted, “[t]here’s seven acres they can stand on. They can stand anywhere.” (S. McMillen Depo. 108.) Sharon believed it was safe for people to stand on the paved area next to the start/finish line at the track, “[a]s long as they’re watching what’s going on.” Id. at 102, 108.
[*P71] The McMillens, as the property owners who granted the McNamers permission to bring the Ochalls upon their land, were the implied social hosts of the Ochalls. See Estill v. Waltz, 10th Dist. No. 02AP-83, 2002-Ohio-5004, ¶ 32 (noting that, [HN20] to be classified as a social guest, “the evidence must show the host extended to the guest an actual invitation, express or implied”). As social hosts, the McMillens owed their guests the following duties: (1) to exercise ordinary care not to cause injury to their guests by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will [**43] not discover such dangerous condition. Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951), paragraph three of the syllabus. Accordingly, the McMillens had a duty to warn the Ochalls of any dangerous condition on their premises which the McMillens had reason to believe the Ochalls did not know about and could not discover.
[*P72] As the lack of barriers around the McMillens’ track was readily apparent, there was no dangerous condition about the track which the McMillens should have had any reason to believe the Ochalls did not know about or could not discover. Indeed, Mrs. Ochall saw go-karts driving off the track throughout the day, and admitted that she knew that there “was no barrier in front of [her] * * * to protect [her] from getting hit by a car if it left the track.” (A. Ochall Dep. at 172-73.) Accordingly, the McMillens had no duty to warn appellants about Brian McMillen’s personal track rule. As such, viewing the evidence in a light most favorable to the Ochalls, we are unable to find a genuine issue of material fact regarding whether the McMillens intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Section 500, at 587 (1965). As such, the McMillens were not reckless by failing to inform [**44] appellants about Brian’s rule.
[*P73] Regarding the McNamers, appellants assert that the McNamers were reckless because they “knew of [Brian McMillen’s] prohibition and failed to inform guests.” (Appellant’s brief, at 36.) Liz McNamer stated that she could not recall if Brian McMillen ever told her about his no-spectator rule, noting that “[h]e could have told [her] husband, but * * * [she didn’t] recall.” (L. McNamer Dep. at 66.)
[*P74] During Brian McMillen’s deposition, counsel asked him if he ever told “people, including the McNamers or anybody, that if you’re not driving a go-kart, then you better not be standing anywhere on this track, whether it’s the access road, sitting on that bench, anywhere on this asphalt period?” (B. McMillen Dep. at 175.) Brian responded, stating:
Absolutely. Absolutely we’ve talked about that with the McNamers, with Michael, their son, with my brother, myself, my dad, we’ve all discussed the common sense rules of the road that we’re going to follow out here on this go-kart track. Absolutely.
* * *
And, again, you know, it’s not like we sat down and said, hey, let’s write a rule book for the track. I’m talking about general guys hanging out in the garage, garage talk, hey, [**45] these are the rules of the road we’re going to follow. Again, we’re not putting together a commercial facility here. We’re going — we’re putting together a little backyard toy here.
Id. at 175-76.
[*P75] When asked if he told the McNamers that he “didn’t build this track for there to be any bystanders. And that if you’re not racing, no one is allowed to be standing around watching people racing or in go-karts going around the track on any part of this asphalt,” Brian stated “[t]hat’s just generally speaking what we have always gone with.” Id. at 177.
[*P76] Liz explained that everytime she had ever been to the track people would be standing in the paved area adjacent to the start/finish line. (L. McNamer Dep. at 67.) Liz also always stood in that area and believed it was safe to stand there as long as “you’re observing and — and paying attention and watching what’s occurring.” Id. at 56-57. Porter similarly testified that whenever he had been to the track, people always stood on the asphalt near the start/finish line. (J. Porter Dep. at 44.)
[*P77] To determine whether the McNamewrs were reckless in failing to inform the Ochalls about Brian McMillen’s personal track rule, we ask whether the McNamers intentionally failed to inform the Ochalls about [**46] Brian’s rule when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). As noted, [HN21] primary assumption of the risk “‘relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity.'” Lykins v. Fun Spot Trampolines, 172 Ohio App.3d 226, 2007-Ohio-1800, ¶ 34, 874 N.E.2d 811 (10th Dist.), quoting Whisman v. Gator Invest. Properties, Inc., 149 Ohio App.3d 225, 236, 2002 Ohio 1850, 776 N.E.2d 1126 (1st Dist.2002).
[*P78] The parties do not direct us, and our independent research has failed to produce, an Ohio case delineating the duty which a non-landowner, sponsor or organizer of a free activity owes to the participants of the activity. [HN22] Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recereational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity.” Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 1162, 150 Cal. Rptr. 3d 551, 290 P.3d 1158 (2012).1 See also Saville v. Sierra College, 36 Cal. Rptr. 3d 515, 133 Cal. App. 4th 857 (2005) (noting that an “organizer of an activity is under a duty not to increase the risk of injury inherent in the activity”); Estate of McNeil v. FreestyleMX.com, Inc., 177 F.Supp.3d 1260 (S.D.Cal. 2016) (noting that the “organizer and promoter of the freestyle motocross event” owed the plaintiff a limited duty of care, “breached only if they increased the risk beyond that which is inherent to the activity itself”); Amezcua v. Los Angeles Harley-Davidson, Inc., 132 Cal. Rptr. 3d 567, 200 Cal. App. 4th 217 (2011) (concluding that the sponsor of the activity, had not “increased the inherent danger [**47] of riding in an organized motorcycle ride,” because “traffic slowing and other drivers not paying attention are inherent risks of riding in an organized motorcycle ride on public highways,” and to close down the freeway in order to eliminate these risks “would alter the parade-like nature of riding in a motorcycle procession on a public highway”).
1 In Nalwa the plaintiff argued that sponsors of recreational activities should owe a greater duty to participants. The court disagreed, holding as follows:
[HN23] A rule imposing negligence duties on sponsors, organizers and operators of recreational activities would encompass not only commercial companies like defendant but also noncommercial organizations without extensive budgets or paid staff. Such groups might not easily afford insurance to cover injuries that are inherent risks of the activity; nor could they readily collect large fees from participants to cover that cost. The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury.
Nalwa at 1162.
[*P79] Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. [**48] Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.
[*P80] Appellants next assert that the trial court “ignored factual issues regarding Defendants’ concealing the danger from Andrea Ochall by installing a bench to entice her to congregate on the paved area next to the track not designed for spectators.” (Appellants’ brief, at 38-39.) Mr. McMillen had placed a light, moveable, park style bench on the back of the paved area adjoining the start/finish line. (S. McMillen dep. at 106.) Brian McMillen explained that the bench was for drivers to [**49] sit on following a race, noting that, after a race, “you’re tired, your back hurts, your legs are sore, you’re sweating. * * * A guy will sit on that bench and relax for a minute.” (B. McMillen Dep. at 170.)
[*P81] Sharon McMillen agreed with counsel that someone might think “if there’s a bench around, that that may be a safe place to be because there’s a bench where you could sit.” (S. McMillen Dep. at 106.) However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.” (J. Porter Dep. at 107.) Compare Kacsmarik v. Lakefront Lines Arena, 8th Dist. No. 95981, 2011-Ohio-2553, ¶ 10, 13 (concluding that the “bench was not the proximate cause of [plaintiff’s] injuries,” as the plaintiff was not “sitting on the bench when she was injured” as she had “left the bench, [and] opened the ice rink door”).
[*P82] Construing the evidence in appellants’ favor, [**50] we cannot find that the McMillens knew or had reason to know of facts which would have lead them to realize that placing a bench near their go-kart track created an unreasonable risk of physical harm to another, or amounted to conduct substantially greater than negligent conduct. Simply placing a bench by the track did not create an unreasonable risk of physical harm to others, as the bench did not obsecure anyone’s ability to appreciate the barrier-less nature of the go-kart track.
[*P83] Appellants also state that Hawn concluded that Brian McMillen’s 2010-11 alteration to the track, “enhanced the danger to spectators by creating greater risk go-karts would lose control.” (Acc. Reconstruction Report at 13-14.) (Appellant’s brief, at 41.) Appellants assert that “[t]his remodeling and the enhanced risk were not known to Andrea Ochall, whereas McMillens knew that they had made the track faster for go-karts approaching the spectator area where they had placed the bench.” (Appellant’s brief, at 41.) Although appellants do not directly argue that the McMillens acted recklessly by altering their track, we observe that the McMillens were not reckless in this regard, as there is no evidence linking the [**51] 2010-11 alteration to an increased risk that a driver would lose control of their go-kart.
[*P84] Hawn stated that the paved area next to the start/finish line, and “just beyond the exit to the fastest curve of the track,” would be a danger zone to persons afoot, but only “if a driver should experience such a loss of control and deviate from the track.” (Acc. Reconstruction Report at 13.) Similarly, Hawn stated that the paved area next to the track was dangerous for spectators, but only in the event that “a kart deviated from the track, at speed, due to driver loss of control in the curve.” Id. at 14. Thus, Hawn’s opinion that the paved area next to the start/finish line was unsafe for spectators was based on if a driver should lose control of their go-kart. Hawn did not find that the elevation of the curve, or that the straightaway itself, would cause a driver to lose control of their go-kart. Brian confirmed that the 2010-11 alteration did not affect a driver’s “ability to change speed or how they had to maneuver that part of the track.” (B. McMillen Dep. at 149.)
[*P85] Furthermore, Hawn opined, and the record supports, that it was Doe’s act of “discarding an unwanted headband” which caused her to fail [**52] to “maintain steering control [which] was a significant causative factor” of the accident. (Acc. Reconstruction Report, 14-15.) Thus, it was Doe’s act of removing her hand from the steering wheel to remove her headband from her face, and not the elevation of the high-banked curve, which caused the accident.
[*P86] Appellants also state that “an easy, inexpensive precaution” for the McMillens was to “relocate the spectator area to the inside of the track and raise the elevation where their guests stood.” (Appellant’s brief, at 41.) Appellants do not directly assert that the McMillens acted recklessly by failing to construct an elevated spectator platform. Regardless, the McMillens were not reckless by failing to construct a spectator platform, because they had no duty to do so. [HN24] “‘There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratuitously extended. The guest assumes the ordinary risks which attach to the premises.'” Scheibel at 315, quoting 38 American Jurisprudence 778, Section 117.
[*P87] Appellants next assert that defendants concealed the “danger by failing to educate themselves about [**53] safety or warn guests of known danger.” (Appellant’s brief, at 43.) Appellants observe that Sharon McMillen instructed drivers, “don’t be bumping into anybody,” but assert that she was reckless because she did not know how fast the go-karts traveled, wasn’t aware of the go-kart’s maintenance schedule, and did not follow the go-kart manufacturer’s height or age restrictions. Id. at 44-45. Appellants similarly assert that Liz McNamer was reckless because she did not know the make or model of the go-karts, did not know the go-kart manufacturer’s age or height restrictions, and did not know how fast the go-karts traveled. Id. at 45-46.
[*P88] Appellants, however, fail to explain what any of these facts have to do with the accident. The accident did not result from unsafe go-kart operation; it occurred because Doe’s headband slipped into her eyes. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855 (1st Dist.), ¶ 43, 830 N.E.2d 1252 (observing that, although the plaintiffs “presented evidence that the handrail was deteriorating and that a 1 to 50 instructor-to-student ratio was too high to be considered safe, they presented no evidence that either of these factors played even the slightest role in causing Eric’s injury”). Appellants fail to establish a genuine issue of material fact regarding whether [**54] the defendants intentionally failed to educate themselves about go-kart safety when they had a duty to do so, or that they intentionally failed to warn appellants about the dangers of go-karting when they had a duty to do so. Marchetti at 96, fn. 2, quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965). Accordingly, the record fails to demonstrate that any of the defendants acted recklessly by failing to educate themselves about safe go-kart operation or by failing to warn guests of the dangers of go-karting.
[*P89] Appellants lastly assert that the trial court “construed evidence regarding [Doe’s] driving and supervision of her by Liz McNamer and James Porter in a light most favorable to Defendants.” (Appellant’s brief, at 48.) Appellants note that, earlier in the day before the accident, Doe drove off the track, and that “[o]ther children came partially off the track as well.” Id. at 48. McNamer went and spoke to Doe after she drove off the track, and “cautioned her and advised her to be careful.” (L. McNamer Dep. at 129.) McNamer explained that “all the children had went off” the track that day, but that she only spoke to Doe because she was Doe’s “grandparent.” Id. at 131. McNamer noted that, “[n]o one else said anything to me that anyone was driving reckless or [**55] that [Doe] wasn’t in control.” Id. Porter testified that Doe’s driving that day was “[t]ypical for past driving and typical of the driving of all of the other children who were racing that day.” (J. Porter Dep. at 105.) Porter stated that he never told his daughter, or anyone, to slow down. Id. at 152.
[*P90] Mrs. Ochall testified that Doe “had been asked numerous times to slow down and watch her speed. * * * She was warned by her father, by Liz.” (A. Ochall Dep. at 27.) Mrs. Ochall characterized Doe’s driving as “out of control,” because she had “gotten off the track” and “was just driving aggressively.” Id. at 45-46. Mr. Ochall stated that Doe was “driving aggressively,” by “[p]assing other cars.” (R. Ochall Dep. at 53.) However, Mrs. Ochall explained that she took no precautions for her own personal safety in light of Doe’s allegedly aggressive driving, because she “felt that [Doe’s] grandmother and father addressed the behavior with [Doe].” (A. Ochall Dep. at 48.)
[*P91] Accordingly, construing the evidence in appellants’ favor, Porter and McNamer watched the children driving, all the children drove off the track that day, and McNamer and Porter cautioned Doe about her driving. Although Mrs. Ochall characterized Doe’s driving as aggressive, [**56] she felt that McNamer and Porter adequately addressed Doe’s behavior by speaking to her. Appellants fail to demonstrate how Porter or McNamer engaged in conduct which was substantially greater than negligent conduct by keeping an eye on Doe and cautioning her.
[*P92] Appellants assert that the trial court “ignored the Ochalls’ testimony that [Doe] was driving aggressively.” (Appellant’s brief, at 50.) The trial court, however, did not ignore this evidence. The court noted appellants’ contention that Doe was driving aggressively by “passing other karts and veering off the track.” (Decision & Entry at 20.) The trial court observed that Mr. Ochall admitted that “he passed other karts while driving on the track that day,” and that Doe “was not the only child to veer off the track that day, as one of [apppellants’] children also veered off the track while driving.” Id. at 21. The court concluded that there was no evidence that Doe’s “actions prior to the accident amounted to aggressive driving.” Id.
[*P93] Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand [**57] from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident. See Thompson v. Park River Corp., 161 Ohio App.3d 502, 2005-Ohio-2855, ¶ 43, 830 N.E.2d 1252 (1st Dist.).
[*P94] Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall. See West v. Devendra, 7th Dist. No. 11 BE 35, 2012-Ohio-6092, ¶ 37, 985 N.E.2d 558, quoting 2 Restatement of the Law 2d, Torts, Section 500, Comment g (1965) (noting that [HN25] “reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man”).
[*P95] Because appellants fail to establish any genuine issues of material fact regarding whether the defendants engaged in reckless misconduct, appellants’ second assignment of error is overruled.
VI. CONCLUSION
[*P96] The incident at the McMillens’ go-kart track which caused Mrs. Ochall’s injury was, unquestionably, a terrible and tragic accident. However, every tragic accident does not result in tort liability. Because Mrs. Ochall [**58] primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.
Judgment affirmed.
SADLER, J., concurs.
DORRIAN, P.J., concurs in and part dissents in part.
CONCUR BY: DORRIAN (In Part)
DISSENT BY: DORRIAN (In Part)
DISSENT
DORRIAN, P.J., concurring in part and dissenting in part
[*P97] I respectfully concur in part and dissent in part.
[*P98] I concur with the majority that primary assumption of the risk requires an examination of the recreational activity or sport itself. For this reason, and pursuant to Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, ¶ 10, 802 N.E.2d 1116, I also agree with the majority that spectators and participants are to be treated the same and appellants’ arguments regarding the “risks to spectators” improperly attempt to shift the focus of the analysis away from the risks inherent in the activity. (Lead opinion at ¶ 48.) Consistent with [**59] this, I concur with the majority and am not persuaded by the Third District Court of Appeals’ decision in Reed v. Cassidy, 3d Dist. No. 2-01-36, 2002-Ohio-1672 (Apr. 10, 2002).
[*P99] I concur with the majority that the trial court erred when it conflated the duty analysis under primary assumption of the risk with the social host duty of care under premises liability.
[*P100] I concur with the majority that the trial court did not err when it observed that “[a] risk is found to be ordinary or inherent to the recreational activity when it arises from conduct that is ‘a foreseeable, customary part[‘] of the activity.” (Emphasis added.) (July 31, 2015 Decision at 4, quoting Gentry at ¶ 10.) (Lead opinion at ¶ 43.) However, I would find further, notwithstanding the trial court’s correct legal statement, that the trial court erred by concluding that “foreseeable risks are inherent risks of recreational activities” and in not conducting the additional analysis of whether the risk is ordinary or customary to the game. (July 31, 2015 Decision at 7.) Given this court’s three part test in Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255 (10th Dist.), which requires that in order to be considered inherent, a risk be both ordinary and foreseeable, I would interpret the term “customary” [**60] in this context as “ordinary.” To interpret “customary” as “common” or “foreseeable” would merge the doctrines of primary and implied assumption of the risk.
[*P101] I concur with the majority that the Supreme Court of Ohio has held that “‘[t]o be covered under the * * * doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19, 979 N.E.2d 1246, quoting Knoesky v. Wood Cty. Agricultural Soc., 164 Ohio App.3d 839, 2005-Ohio-7009, ¶ 19, 844 N.E.2d 408 (6th Dist.). (Lead opinion at ¶ 45.) I would note further that contrary to appellees’ suggestion that courts do not typically conduct a detailed analysis of whether a risk cannot be eliminated, a survey of Tenth District case law reveals that this court adheres to this requirement. “If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of risk is appropriate.” Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527 (June 12, 1997) (finding the plaintiff’s “injuries occurred as a result of a commonly known danger ordinary to the sport of thoroughbred horse racing”). See also Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 13, 15, 25 (noting that, “by its very nature, karate, as a martial art, is an inherently dangerous activity from which [**61] the risk of harm cannot be eliminated”); Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, ¶ 35, 924 N.E.2d 906 (10th Dist.) (noting that in cheerleading, “the risk [of injury] is forever present and may only be reduced to manageable levels. Manageable risks are nevertheless risks. It necessarily follows that the risk of injury is incapable of being completely eliminated”); Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. No. 11AP-405, 2012-Ohio-453, ¶ 16 (affirming the trial court’s finding “that hiking is a recreational activity to which the doctrine [of primary assumption of the risk] applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night”); Main v. Gym X-Treme, 10th Dist. No. 11AP-643, 2012-Ohio-1315, ¶ 9, 12-13 (noting “[t]he rationale behind the doctrine [of primary assumption of the risk] is that certain risks are so intrinsic in some activities that the risk of injury is unavoidable,” and finding that “tripping, slipping, and falling are all normal inherent risks” with “‘play time and gymnastic activities'”); Schnetz v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App. 3d 207, 959 N.E.2d 554, 2011-Ohio-3927, ¶ 30, 49 (10th Dist.) (noting that “[i]f that activity is one that is inherently dangerous and from which the risks cannot be eliminated, a finding of primary assumption of the risk is appropriate” and finding that “[i]njury resulting [**62] from colliding with another player on the field of play, even accidentally, is an ordinary danger of the sport of football”).
[*P102] I concur with the majority that to determine the risks that are so inherent in an activity that they cannot be eliminated, a court must “‘focus[] exclusively upon the activity itself.'” (Lead opinion at ¶ 45, quoting Schnetz at ¶ 28.) I would clarify further that the contention that a risk must be one that is so inherent to the sport or activity that it cannot be eliminated is appropriately considered in the context of the ordinary or customary analysis. I would also suggest that in determining the same, a court should consider the goal of the primary assumption of the risk doctrine as discussed by the majority: “‘to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.'” (Lead opinion at ¶ 38, quoting Marchetti v. Kalish, 53 Ohio St.3d 95, 99, 559 N.E.2d 699 (1990), and Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248, 253, 38 Cal. Rptr. 2d 65 (3d Dist.1995) (observing that the “overriding consideration in the application of primary assumption of the risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”); Yancey v. Superior Court, 28 Cal.App.4th 558, 565, 33 Cal. Rptr. 2d 777 (5th Dist.1994) (noting that “[d]uty is constricted [**63] in such settings because the activity involves inherent risks which cannot be eliminated without destroying the sport itself”).)
[*P103] Finally, I concur with the majority’s ultimate conclusion that the trial court erred in its primary assumption of the risk analysis because it failed to ascertain the risks inherent in the activity of go-karting. I dissent, however, with the majority’s consideration and determination, in the first instance, of the same.
[*P104] Because the Supreme Court in Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 1996 Ohio 320, 659 N.E.2d 1232 (1996), instructs that courts must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery and because of the great impact a ruling in favor of a defendant would have, I would not determine the issue in the first instance on appeal. Rather, I would remand this case to the trial court with instructions to consider whether the risk of a go-kart veering off the track and striking objects/persons in its path meets the criteria that “(1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.” (Emphasis added.) Santho at ¶ 12. In considering whether [**64] such risk is ordinary to the game, I would instruct the court to (1) focus on the activity of go-karting itself; and (2) consider whether such risk can be eliminated without inhibiting vigorous and free participation, fundamentally changing or destroying the activity of go-karting. Such consideration necessarily involves an examination of the nature of the activity, the purpose or goals of the activity, and the rules or customs of the activity, where applicable.
[*P105] Finally, I dissent from the majority’s consideration of the second assignment of error. Because I would reverse and remand this case for the trial court to determine, in the first instance, whether primary assumption of the risk applies, I would find to be moot the second assignment of error regarding whether the trial court erred in holding appellees did not act recklessly.2
2 I would note that appellants’ argument, pursuant to Goffe v. Mower, 2d Dist. No. 98-CA-49, 1999 Ohio App. LEXIS 308 (Feb. 5, 1999), that primary assumption of the risk cannot apply because appellees “enhanced” the risk by defective design or operation, would be appropriately addressed when considering whether the exception of recklessness or willfull or wanton conduct applies to application of primary assumption of the risk.
Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Posted: June 19, 2017 Filed under: Uncategorized | Tags: Animal, Assumption of risk, broken, counter, entity, enumerate, Equine, Equine Liability Act, exculpatory, Exculpatory clause, faulty, genuine, Happy Trails and Riding Center, Horse, horseback riding, Immunity, Inc., Inherent Risk, material fact, recklessness, recreational, Rental, ride, rider, riding, Ski, Skier, skiing, Sport, stable, stirrup, Summary judgment, Trail 1 CommentBetween a poorly written release, an Equine statute that requires proof the rider assumed the risk and the “cavalier” attitude of the defendant; the plaintiff will proceed to trial.
Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576
State: Pennsylvania, United States District Court for the Middle District of Pennsylvania
Plaintiff: Wilberto Melendez
Defendant: Happy Trails and Riding Center, Inc.
Plaintiff Claims: Negligence and Recklessness
Defendant Defenses: Release and Pennsylvania Equine Liability Protection Act
Holding: For the plaintiff
Year: 2016
The plaintiff was part of a group ride. Upon arrival he was told, he had to sign a release which he did. At the office where the plaintiff signed, the release signs were posed as required by the Pennsylvania Equine Activities Immunity Act. During the ride, the plaintiff asked the guides if he could gallop the horse and was told no several times. Eventually at the end of the ride, the plaintiff was allowed to gallop his horse.
Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail. At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.
While galloping the horse, the stirrup broke causing the plaintiff to fall incurring injuries.
The defendant filed a motion for summary judgment based on the release signed by the plaintiff and the Pennsylvania Equine Activities Immunity Act. The court denied the motion because the issue of the stirrup breaking could be considered reckless under Pennsylvania law.
Analysis: making sense of the law based on these facts.
The decision first looks at releases or exculpatory agreements under Pennsylvania law.
An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.
Under Pennsylvania, the language of the release must be clear in relieving notifying the possible plaintiff, he or she is releasing the defendant of negligence. “However, a valid exculpatory clause will nevertheless, be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”
As in most states, releases are not favored and must conform to contract law. However, the term “not favored” is a term of art rather than a term used to determine if the release will be valid.
Contracts immunizing a party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.”
In that regard Pennsylvania, courts have set up standards on how releases will be governed.
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 ex-press 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 immunity is upon the party invoking protection under the clause.
As in most other states, Pennsylvania does not allow a release to relieve a defendant for intentional or reckless acts. “Further, exculpatory clauses may not immunize a party for intentional or reckless behavior.”
The plaintiff did not argue that the release was not valid. The court reviewed the release on its own and find it valid.
First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them.
Second, the agreement was between two private parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. (“The signer I 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.”). Thus, the agreement is facially valid.
The court also found Pennsylvania law allowed the use of releases for inherently dangerous activities. Horseback riding in Pennsylvania is an inherently dangerous activity.
The plaintiff’s argument centered on the inherent risks of horseback riding. Inherent, a limiting word, defines the risks that are part of horseback riding no matter what. Inherent risks are part of horseback riding and can rarely be reduced or modified by someone because of the horse. However, there are more than just inherent risks in any activity and the plaintiff argued that a stirrup breaking was not an inherent risk and not covered by the release or the statute.
How the bridle or saddle is attached to the horse is under the control of the stable, thus not an inherent risk of horseback riding in must states. How the horse responds; maneuvers or acts is an inherent risk of riding a horse.
Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment.
Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could not appreciate the risk and could therefore not assume it.
(For other articles on the use of “inherent” in a release see: Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release and 2015 SLRA – Inherent Risk: Should the Phrase be in your Release?)
The court looked at the issue and rephrased it to a contract analogy. A contract must state the intention of the parties. A release is a contract.
…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”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before.
The court then looked at the issue and found that defective equipment was not an inherent risk of horseback riding. This means if you use the term “inherent risk” in your release to describe all of the risks, claims based defective equipment would not be covered by your release in Pennsylvania. However, the release in this case was written broadly so it was not an issue.
Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.”
Pennsylvania courts have held that a release protects against claims for inherent as well as non-inherent risks if written to include those risks, and this release was written broadly.
The plaintiff argued the release should be read narrowly because the release did not identify defective equipment as a risk to be covered. However, the court found that every risk needs not be reviewed or identified in a release.
Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory agreement. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use.
The next point the plaintiff argued was the actions of the defendant amounted to recklessness and as such voided the release. The court defined recklessness under Pennsylvania law as:
Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”
Pennsylvania uses the term recklessness to define acts of the defendant that exceed the scope of a release. The majority but not all states use the term gross negligence.
This argument the court did accept. The court found that it was the defendant’s responsibility to inspect the equipment, and the defendant could not provide any evidence of any inspection.
Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident.
The court on this same topic went on looking at the facts to determine other reckless acts of the defendant. In that review, the court added a comment about the attitude of the defendant/owner of Happy Trails and described his attitude as “cavalier.”
He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness
Finding a lack of knowledge about the age or condition of the defendant’s equipment, no record of inspecting or maintaining the equipment and the attitude of the defendant allowed the court to reach a conclusion that the actions of the defendant would be found by a jury to be reckless. As such, a motion for summary judgment could not be granted if there were “genuine dispute as to any material fact.”
The next issue was the application of the Pennsylvania Equine Activities Immunity Act to the case. The court could find no other case law in Pennsylvania that looked at the application of the Pennsylvania Equine Activities Immunity Act to defective equipment. Consequently, the court had to interpret the statute to see if the language of the statute covered defective equipment.
The Pennsylvania Equine Activities Immunity Act like most equine liability protection acts provides immunity to horse owners, stables, etc., for the actions of the animals. (Since Equine Acts have been created, they have been 100% effective. No horses have been sued. Lawsuits against horse owners have increased.) However, the Pennsylvania statute places a burden on the stable or horse owner to prove knowledge of the risk for the immunity to apply.
Most equine protection acts are written to say that when on a horse, or at places where horses, llamas, mules, etc., are, you assume the risk of the actions of the animal. By assuming the risk, the defendant owner is immune from liability for the plaintiff’s injuries. The Pennsylvania statute is different. The Pennsylvania statute states “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.”
This requirement puts a burden upon the horse owner to provide additional education to the rider.
The court looked at the definition of assumption of risk as defined in the Restatement of Torts, which found four different definitions or as the Restatement defines them doctrines of assumption of the risk.
The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.”
The first type of assumption of risk the court found that applied here was express assumption of risk. Express assumption of risk occurs when the plaintiff has consented to the risk. Usually, this consent is given by writing, if written property as part of a release.
The second type applicable in this case was implied assumption of the risk. Implied assumption of the risk has no exactness to the risk assumed. The plaintiff knows there is risk, and the defendant hopes the plaintiff knows of the explicit risk that may injure the plaintiff or that caused the plaintiff’s injuries. If the plaintiff had no knowledge of the risk, then the plaintiff cannot assume the risk.
It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”
In this case, there was no evidence that the plaintiff knew of the risk. That risk was of equipment failure that the stirrup would break. Consequently, the plaintiff could not assume the risk.
Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.”
In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge.
Because the risk that injured the plaintiff was outside of the risks assumed by the plaintiff, the defense of assumption of the risk did not apply. As such, the Pennsylvania Equine Activities Immunity Act did not provide the defendant with any protection.
With the release not valid and the Pennsylvania Equine Activities Immunity Act not providing any protection both defenses of the defendant failed. The defendant’s motion for summary judgment was denied.
So Now What?
This case would not have meant anything if the plaintiff had simply fallen off the horse. Both the release and the Pennsylvania Equine Activities Immunity Act would have prevented recovery if a claim had even been made.
But broken equipment always creates a different issue. Here it created an issue of whether the actions of the defendant were reckless and proved the plaintiff did not assume the risk.
Another important issue is courts put into their decision the facts they find persuasive or at least interesting. There were several facts in the decision that did not alter or affect the decision on its face, but important enough for the court to identify them anyway. I always find these facts as instructional and a good indication of something that was not enough for the judge to argue but important anyway.
I also believe that they may not have any legal value, but if written into the decision by the judge, they had to have an impact on the judge’s thinking, and consequently, those issues did affect the outcome of the case.
In this decision those facts included:
After his group arrived, Plaintiff went into the stable’s office to register. Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part….
Combined with the next sentence:
An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. Plaintiff signed the agreement.
Meaning, the plaintiff was not told in advance he was going to be required to sign a release.
Another one was the plaintiff being told galloping was too dangerous yet he was eventually allowed to gallop his horse.
On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail.
Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.
If galloping the horse was too dangerous earlier, what changed? More importantly, galloping the horse led to the broken stirrup which led to the injury.
And then there are the straight out in your face statements a court rarely makes.
Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal.
If this statement or something like it has been at the beginning, you would have known immediately that the defendant was going to lose. Never walk into a courtroom looking like the bad guy and never give the court proof, such as this, that you are.
For other Equine Liability Act articles see:
$1.2 M award in horseback riding fatality in Wyoming http://rec-law.us/1fE4ncB
$2.36 M awarded to boy kicked by horse during inner-city youth program http://rec-law.us/1lk7cTP
A specific statute, a badly written release and an equine liability statute sink instructors and business in horse riding accident. http://rec-law.us/SJZCkU
Decisive Supreme Court Decision on the Validity of Releases in Oklahoma http://rec-law.us/19gxvkT
Equine laws stop suit against horse, outfitter still sued http://rec-law.us/XjgJvw
Good News ASI was dismissed from the lawsuit http://rec-law.us/131HKWH
Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release http://rec-law.us/1nvfCV5
Hawaii’s deceptive trade practices act sends this case and release back to the trial court http://rec-law.us/Z3HdQj
Indiana Equine Liability Statute used to stop litigation http://rec-law.us/12UFp1N
Lying in a release can get your release thrown out by the court. http://rec-law.us/11ysy4w
Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant http://rec-law.us/1ZicaQs
Parental control: should you, are you accepting responsibility for kids and when you should or can you not. http://rec-law.us/1fteMth
Release saves riding school, even after defendant tried to show plaintiff how to win the case. http://rec-law.us/14DC7Ad
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Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576
Posted: June 6, 2017 Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: Animal, Assumption of risk, broken, counter, entity, enumerate, Equine, Equine Liability Act, exculpatory, Exculpatory clause, faulty, genuine, Happy Trails and Riding Center, Horse, horseback riding, Immunity, Inc., Inherent Risk, material fact, recklessness, recreational, Rental, ride, rider, riding, Ski, Skier, skiing, Sport, stable, stirrup, Summary judgment, Trail Leave a commentMelendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576
Wilberto Melendez, Plaintiff, v. Happy Trails and Riding Center, Inc., Defendant.
3:14-CV-1894
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
2016 U.S. Dist. LEXIS 131576
September 26, 2016, Decided
September 26, 2016, Filed
CORE TERMS: trail, summary judgment, exculpatory, recklessness, equine, stirrup, stable, immunity, genuine, horse, horseback riding, recreational, animal, material fact, skiing, ride, assumption of risk, faulty, broken, ski, rider, inherent risk, exculpatory clause, riding, sport, skier, enumerate, counter, rental, entity
COUNSEL: [*1] For Wilberto Melendez, Plaintiff, Counterclaim Defendant: Robin A. Feeney, LEAD ATTORNEY, FINE & STAUD LLP, PHILADELPHIA, PA.
For Happy Trails and Riding Center, Incorporated, Defendant, Counterclaim Plaintiff: Dennis M. Marconi, Barnaba & Marconi, LLP, Trenton, NJ.
JUDGES: Robert D. Mariani, United States District Judge.
OPINION BY: Robert D. Mariani
OPINION
MEMORANDUM OPINION
I. Introduction and Procedural History
On September 30, 2014, Plaintiff, Wilberto Melendez, filled a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, lnc.1 (Doc. 1). The Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of fact discovery, Defendant filed a Motion for Summary Judgment (Doc. 19) and supporting brief (Doc. 20) on October 29, 2015. Plaintiff filed a Brief in Opposition (Doc. 22) and Defendant filed a Reply. (Doc. 23). Oral argument on the matter was held on April 4, 2016.
1 Defendant points out that the business is owned and operated by Randolph Bennett, d/b/a Happy Trails Stables, and was incorrectly pleaded as Happy Trails Riding [*2] Center, Inc. For the purposes of this motion, the error, if any, is immaterial and the opinion will refer to Defendant as “Defendant” or “Happy Trails.”
The motion is now ripe for decision. For the reasons set forth below the Court will deny Defendant’s motion in its entirety.
II. Statement of Undisputed Facts
In accordance with Local Rule 56.1, Defendant submitted a Statement of Material Facts in Support of its Motion for Summary Judgment, (Doc. 20), as to which it contends that there is no genuine dispute for trial. Plaintiff submitted a response, a Counter Statement of Facts, (Doc. 22), with the result being that the following facts have been admitted, except as specifically noted:
Plaintiff, Wilberto Melendez, went to Defendant’s stable on May 31, 2014, for the purpose of going horseback riding. (Doc. 20, ¶¶ 1, 2). After his group arrived, Plaintiff went into the stable’s office to register. (Id. at ¶ 5). Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part:
AGREEMENT FOR PARTICIPATION AND\OR VOLUNTEERS [sic] I RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE [sic] OF RISK:
IN CONDERATION [sic] FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT [*3] OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING, AND ALL RELATED ACTIVITIES.
….
1. I understand and acknowledge that the activity I am voluntarily engage [sic] in as a participant and/or [sic] bears certain know [sic] risk [sic] and unanticipated risks which could result in jury, [sic] death, illness, or disease, physical or mental, or damage to myself, to my property, or to spectators or other third parties. I understand and acknowledge those risk [sic] may result in personal claims against “HAPPY TRAILS STABLES” or claims against me by spectators or other third parties.
1. [sic] The nature of the activity itself, including the possible risks to you the rider.
A. The animal may be startled by unforeseen or unexpected noises from other animals, people, vehicles, activities and as a result you the rider may be hurt or injured should the animal react to said noises or activity, by running, bucking, rolling, or kicking, etc.
B. That you as the rider realizes [sic] that the animal is reacting to your physical instructions, conduct, and verbal instructions and commands, and therefore, the animal will respond in accordance with your reactions or commands. However, there are [*4] times when the animal may be confused or distracted during course [sic] of your instructions and/or commands.
C. You the rider understands [sic] that an animal may kick or bite you the rider, or you the pedestrian, and that other animals which may be on tour, could kick or bite you the rider and/or pedestrian.
D. You the rider are aware that physical conditions of the trails may cause injury or risk to you, should these physical conditions such as low tree limbs, bushes, or other type of natural growth come in contact with animal [sic] or yourself.
2. I hereby release and discharge Happy Trails Stables, instructors, trail guides, stable managers, employees, owners of the horses and related equipment and land utilized for Happy Trails Stables activities, hereinafter referred to as the “Released Parties,” from any and all claims, demands, or cause of action that I, or any of my heirs, successors or assigns, [sic] may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence of the released parties.
3. I further agree that I, my heirs, successors, or assigns, [sic] will not sue or make claim [*5] against the Released Parties for damage or other loses sustained as a result of my participation in Happy Trails activities.
….
4. I understand and acknowledge that Happy Trails activities have inherent dangers that no amount of cares, [sic] caution, instruction, or expertise can eliminate and I expressly and voluntarily assume all risk of personal injury or death sustained while participating in “Happy Trails Stables” activities weather [sic] or not caused by negligence of the Released Parties ….
….
6. I hereby expressly recognize that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence of the Released Parties. I also assume the risk of the equine activities pursuant to the [sic] Pennsylvania law.
(Id. at ¶¶ 5, 11; Doc. 20-7) (emphasis original). An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. (Doc. 20, 5). Plaintiff signed the agreement. (Id. at ¶ 8). In addition to the agreement, there were signs posted inside the office, outside [*6] the office, and by the stable which read “You assume the risk of equine activities pursuant to Pennsylvania Law.” (See id. at ¶¶ 12-15; Doc. 20-8).
After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. (Doc. 20, ¶ 17). Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. (Id. at ¶¶ 19, 21). On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. (Id. at ¶¶ 22, 23). Plaintiff was told it was too dangerous to do on the trail. (Id.). At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. (Id. at ¶ 26). Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal. (id. at ¶¶ 27-29).
Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. (Doc. 22 at 1). Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax. (Id. at 3).
III. Standard of Review
Through summary adjudication, the court may dispose of those [*7] claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality, ….[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record…or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences [*8] 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.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).
However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,
its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
Id. (internal quotations, citations, and alterations omitted).
IV. Analysis [*9]
Plaintiffs complaint alleges that Defendant was negligent in providing broken or defective equipment–the stirrup–to Plaintiff, which directly resulted in his injury. (Doc. 1, ¶ 20). Defendant puts forth two arguments that it maintains are separate and independent grounds for summary judgment. First, Defendant argues that the agreement that Plaintiff signed prior to the horseback ride insulates Defendant from liability under these facts. (Doc. 20 at 9). Second, Defendant argues that, pursuant to 4 P.S. §§ 601-606 (hereinafter “Equine Activities Immunity Act,” “EAIA,” or “the Act”), Happy Trails is immune from liability as a provider of equine activities. (Id.).
A. Exculpatory Agreement
An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)). However, a valid exculpatory clause will nevertheless be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. (quoting Topp Copy Prods., 626 A.2d at 99). Contracts immunizing a [*10] party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (Pa. 1963). Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses:
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 immunity is upon the party invoking protection under the clause.
Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1196 (Pa. 2012) (quoting Topp Copy Prods., 626 A.2d at 99). Further, exculpatory clauses may not immunize a party for intentional or reckless behavior. Id. at 1202-03.
Defendant contends that the agreement Plaintiff signed is valid, enforceable, and encompasses broken equipment. (Doc. 20 at 13-16). Therefore, Defendant argues, Plaintiffs negligence [*11] claim is barred and Happy Trails is entitled to summary judgment. (Id. at 16).
Plaintiff does not appear to argue that the agreement is not valid on its face. Nor should he, considering that the agreement easily satisfies the validity requirements under Chepkevich. First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them. Cf. Chepkevich, 2 A.3d at 1191 (finding that, in light of a statute that preserves the assumption of risk defense in the context of downhill skiing, it is “the clear policy of this Commonwealth . . .to encourage the sport and to place the risks of skiing squarely on the skier.”). Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities. See, e.g., id. (downhill skiing); Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110, 113-14 (Pa. Super. Ct. 2007) (snow tubing); Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492, 492-93 (Pa. Super. Ct. 1985) (auto racing); Nissley v. Candytown Motorcycle Club, Inc., 2006 PA Super 349, 913 A.2d 887, 889-91(Pa. Super. Ct. 2006) (motorcycle riding).
Second, the agreement was between two private [*12] parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. See Chepkevich, 2 A.3d at 1190-91 (“The signer I 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.”). Thus, the agreement is facially valid.
Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment. (Doc. 22 at 11). Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. (Id. at 12-13). Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could [*13] not appreciate the risk and could therefore not assume it. (Id. at 13).
Plaintiffs argument essentially states that the second element from Tayar –that “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”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before. See Chepkevich, 2 A.3d at 1193-94.
In Chepkevich, a skier, Lori Chepkevich, sued a ski resort after she fell from a ski lift and was injured. Id. at 1175-76. She claimed her injury occurred because an employee promised to stop the ski lift briefly to allow Chepkevich to help a child board the lift and then the employee failed to do so. Id. Prior to the accident, Chepkevich had signed a document titled “RELEASE FROM LIABILITY” which stated, in pertinent part,
Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to [certain enumerated risks]…. I agree to accept all these risks and agree not to sue Hidden Valley [*14] Resort or their employees if injured while using their facilities regardless of any negligence on their part.
Id. at 1176. The Pennsylvania Supreme Court first rejected Chepkevich’s argument that she did not assume the specific risk that caused her injury and instead found that a fall from a ski lift was an inherent risk in the sport of skiing. Id. at 1188. Therefore, the Court found that the suit was barred by the Skier’s Responsibility Act, 42 PA. Cons. Stat. Ann. § 7102(c), which preserves the common law assumption of the risk defense in the context of downhill skiing. Chepkevich, 2 A.3d at 1187-88.
Turning to an alternative ground for summary judgment–the release–the Chepkevich Court held that the term “negligence” did not require any definition or illustration to be given effect. Id. at 1193. Indeed, reversing the court below on that point, the Court found “no reason to require the drafters of exculpatory releases to provide definitions and context for commonly used terms such as ‘negligence.”‘ Id. The Court then found that the plain language of the release encompassed Chepkevich’s claim for negligence and therefore barred the claim. Id. at 1194-95. Because the Court had already found that the risk involved was inherent, the Court found it unnecessary to address the merits of Chepkevich’s [*15] final argument “that the Release exempted Hidden Valley from liability only when its negligence gave rise to a risk otherwise inherent to the sport of skiing.” Id. at 1193-94.
Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.” Nissley, 913 A.2d at 892 (footnote and internal citations omitted). Thus, as long as the language of the exculpatory agreement applies, any inherent risk analysis is superfluous. The fact that the court in Chepkevich found it unnecessary to its holding to address the plaintiffs argument that non-inherent risks cannot be released in exculpatory agreements does not affect this analysis. As that court saw no need to overturn the language in Nissley, this Court sees no reason not to follow it.
As for enforceability of the agreement, in the realm of recreational [*16] activities, Pennsylvania has upheld expansive language in exculpatory agreements. See, e.g., Nissley, 913 A.2d at 890-91 (upholding motor cycle club’s exculpatory agreement in a negligence action when the release stated that plaintiff “hereby give[s] up all my rights to sue or make claim”); Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. Ct. 1978), aff’d per curiam, 416 A.2d 1010 (1980) (upholding ski rental shop’s exculpatory agreement in a negligence action when the release stated that skier released defendant from “any liability”); Valeo, 500 A.2d at 492-93 (upholding race track’s exculpatory agreement in a negligence action where race car driver signed an agreement releasing “defendants ‘from all liability …for all loss or damage'”).
Here, Plaintiff signed an agreement that he knew to be a waiver. (Doc. 20-2 at 51-53; Doc. 20-7). Paragraph two of the agreement stated that Plaintiff released Happy Trails “from any and all claims, demands, or cause of action that I…may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence.” Further, paragraph six states that Plaintiff “hereby expressly recognize[s] that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the [*17] Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence.” Plaintiff has alleged that Defendant was negligent in providing him defective equipment during his trail ride. The plain language of the agreement signed by Plaintiff releases Defendant from “all claims” including those “caused by negligence.” Thus, Plaintiffs claim, in as much as it is alleging that Defendant acted negligently, is encompassed by the exculpatory language of the agreement and therefore barred.2
2 This Court notes that there is some language in Chepkevich that seems to support Plaintiffs argument. As an aside, the Chepkevich Court states that “the risk [in this case] was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release.” Chepkevich, 2 A.3d at 1194. Plaintiff has pointed out that a broken stirrup is a very uncommon, and therefore unexpected, occurrence. (Doc. 22 at 12-13). Nevertheless, because Chepkevich does not give any standards for what type of risks fall beyond the realm of the plain language of an exculpatory agreement, this Court must turn to other cases. This Court finds [*18] Zimmer v. Mitchell and Ness instructive.
In Zimmer, a skier, Joseph Zimmer, sued a ski rental company after the bindings on the skis he rented failed to release as they were supposed to during a fall, causing him substantial injury. Zimmer, 385 A.2d at 438. Zimmer argued that the rental company was negligent in renting him skis without testing and fitting the bindings. Id. at 440. The court granted the ski rental company’s motion for summary judgment based on an exculpatory agreement that Zimmer signed when he rented the skis that released the rental company “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment.” Id.
Thus, while the specific issue of a broken stirrup may be very uncommon, Pennsylvania courts have enforced exculpatory agreements in the case of a released party negligently providing the releasing party with defective or broken equipment.
Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory [*19] agreement. See Chepkevich, 2 A.3d at 1193. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use. Plaintiff agreed to release Defendant from “all claims” including those that arose from Defendant’s negligence. Plaintiff cannot now protest that he did not know what “all claims” included.3
3 At oral argument, Plaintiff advanced a slightly different argument. Plaintiff argued, in effect, that because paragraph one of the agreement enumerates risks associated with horseback riding, the rest of the agreement is limited to those enumerated lists. This argument was also advanced in Chepkevich. See Chepkevich, 2 A.3d at 1194. There, the court rejected the plaintiff’s argument that “by enumerating risks inherent to downhill skiing and then requiring the skier to accept those risks, the Release only bars suits that arise out of the listed risks.” Id. The court found that the release, which stated that skiing “is a dangerous sport with inherent and other risks,” was not limited to the enumerated the risks, but clearly included “other risks.” Here, as in Chepkevich, Plaintiff’s argument [*20] fails on textual grounds. It is true that the agreement, in paragraph one, lists some risks inherent to horseback riding. However, in paragraph two and six, the agreement states that Plaintiff relinquishes “any and all claims.” There is no limiting language in paragraph two or six that would indicate that Plaintiff was only relinquishing claims arising out of the enumerated risks in paragraph one.
Plaintiff finally argues that Defendant’s conduct amounts to recklessness and exculpatory agreements cannot immunize reckless conduct. (Doc. 22 at 14); see Tayar, 47 A.3d at 1202-03. Defendant concedes that the agreement only releases it from suits for negligence, not recklessness, and counters that its “conduct at most amounts to ordinary negligence.” (Doc. 23 at 10). “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar, 47 A.3d at 1200.
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [*21] man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Id. at 1200-01 (quoting Restatement (Second) of Torts § 500).
Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. (Doc. 22-5 at 35-36, 39-40). It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident. (Id. at 13, 53-55, 58, 60). Happy Trails’ owner testified that he bought used saddles on the internet and also from individuals who walk into his business. (Id. at 18). He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. (Id. at 18-19, 58, 60). Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards [*22] safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. (Id. at 32-33). Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness.
Defendant goes on to argue that Plaintiff failed to plead recklessness and that if “recklessness is the standard to apply in this case, plaintiffs compliant must be dismissed with prejudice.” (Doc. 23 at 10). This argument, however, runs counter to the holding in Archibald v. Kemble, 2009 PA Super 79, 971 A.2d 513 (Pa. Super. Ct. 2009).
Archibald involved a lawsuit stemming from Robert Archibald’s participation in a “no-check” adult hockey league. Id. at 515. In his complaint, Archibald alleged that another player, Cody Kemble, checked him into the boards of the ice hockey rink. Id. The complaint went on to say that
Cody Kemble’s negligence consisted of the following:
a. failing to assure that Robert Archibald was aware and/or warned that the check was going to be attempted before checking him into the boards;
b. failing to assure that Robert Archibald was willing [*23] to be checked;
c. checking Robert Archibald when not safe to do so;
d. failing to understand and learn the rules, prohibition and limitation on any checking prior to participating in the non-checking league and game.
Id. at 516. First determining that Archibald would only be able to recover if he showed that Kemble acted recklessly, the Court went on to hold that recklessness “may be averred generally.” Id. at 517, 519. Thus, “merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations.” Id. at 519. Instead, “Archibalds’ cause of action was…subsumed within the negligence count pled in their Complaint.” Id.; see also M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 629 (E.D. Pa. 2015) (construing a separately pleaded recklessness claim “simply as a mechanism to recover punitive damages under [the] negligence claim” because “[t]here is no cause of action for recklessness under Pennsylvania law” and “recklessness is a heightened standard of care required to potentially recover punitive damages”).
Consequently, under Archibald, the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim. In his Complaint, Plaintiff alleged that, among other things, [*24] Defendant “provid[ed] equipment or tack that defendant knew or should have known was faulty.” This statement encompasses the allegation that Defendant recklessly provided Plaintiff with defective or faulty equipment. The fact that Plaintiffs Complaint does not contain the word “reckless” is immaterial.
In sum, because the agreement that Plaintiff signed is only enforceable to immunize Defendant for its negligence, and not for its recklessness, and because there is a genuine dispute as to the material fact of whether Defendant acted recklessly in this case, the Court finds that the agreement is not a sufficient basis for summary judgment.
B. Equine Activities Immunity Act
Defendant next points to the Equine Activities Immunity Act, 4 P.S. §§ 601-606, as an alternative, independent basis for summary judgment. The EAIA limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that, as a provider of a qualifying equine activity who has complied with the EAIA’s statutory requirements, it is entitled to immunity from suit. (Doc. 20 at 10-11). Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside of the EAIA’s [*25] protections. (Doc. 22 at 4).
The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such, this Court must engage in statutory interpretation. For this Court to interpret state law, it “must determine how the highest court of the State would decide an issue.” Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 249, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Pennsylvania interprets statutes according to the Statutory Construction Act of 1972, 1 Pa.Cons. Stat. Ann. §§ 1501-1991. “When interpreting statutory language, the Pennsylvania Supreme Court is guided by the ‘plain meaning’ rule of construction.” Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 371 (3d Cir. 1996) (citing Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 587 (Pa. 1982)). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa. Cons. Stat. Ann. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b).
The EAIA provides immunity for “an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity” including “[r]ecreational rides or drives which involve riding or other activity [*26] involving the use of an equine.” 4 P.S. §§ 601, 602(b)(6). The EAIA, however, only provides immunity where signs of at least a certain size are “conspicuously posted on the premises…in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.” Id. at § 603. For covered entities in compliance with the signs requirement, “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.” Id. at § 602(a). Finally, the Act is clear that “[t]he immunity provided for by this act shall be narrowly construed.” Id. at § 606.
Plaintiff does not argue that Defendant, as a provider of recreational horseback riding activities, is not a covered entity under the statute. Additionally, Plaintiff does not argue that Defendant did not have the appropriate signs as prescribed under the EAIA. Plaintiffs sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment. (Doc. 22 at 6). Stated otherwise, Plaintiff argues that because he did not know he might be given defective or faulty [*27] equipment, he could not knowingly assume the risk of such. Defendant counters that “[o]nce plaintiff entered the stables property and took part in recreational horse riding, he assumed the risk of harm associated with such activities.” (Doc. 20 at 11).
The EAIA states that “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.” 4 P.S. § 602(a). The Act, therefore, appears to preserve the common law assumption of risk doctrine in the context of equine activities. In delineating the contours of this doctrine, the Pennsylvania Supreme Court has looked to the Restatement Second of Torts. See Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341-42 (Pa. 2000). The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. See Restatement (second) of Torts § 496A cmt. c. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has [*28] entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Id. (emphasis added).
It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” Rutter v. Ne. Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1204 (Pa. 1981) (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”‘ Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 532 (Pa. Super. Ct. 1988) (alteration in original) (quoting Crance v. Sohanic, 344 Pa. Super. 526, 496 A.2d 1230, 1232 (Pa. Super. Ct. 1985)); See also Restatement (second) of Torts § 496D.4 Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996) (citing Struble v. Valley Forge Military Acad., 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. Ct. 1995)). Finally, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 572 (Pa. Super. Ct. 2000).
4 Of course, a plaintiff’s own assertion about whether he knew of and understood [*29] the risk is not conclusive.
There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height, in the absence of any special circumstances which may conceal or appear to minimize the danger.
Restatement (Second) of Torts §496D cmt. d.
In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could be inferred. The owner of Happy Trails testified that, in the approximately ten years he operated [*30] the stable, he never remembered a single stirrup breaking. (Doc. 20-3 at 20-21). Given that it is not a common occurrence, it strains credibility to argue that a recreational participant would know that being provided broken equipment was likely.
Therefore, because there has been no showing that Plaintiff knew of the risk and voluntarily disregarded it, the EAIA provides no relief for Defendant.5
5 At oral argument, counsel for the Defendant conceded that, even under the broad interpretation of the Act that Defendant argued for, the Act would not immunize a covered entity for acts of recklessness or gross negligence. As this Court has already found that there is a genuine dispute as to the material fact of whether the Defendant acted recklessly, this provides an alternative ground for the finding that the Act does not provide immunity under these facts.
V. Conclusion
For the reasons stated above, the Court will deny Defendant’s Motion for Summary Judgment (Doc. 19). A separate Order follows.
/s/ Robert D. Mariani
Robert D. Mariani
United States District Judge
ORDER
AND NOW, THIS 26th DAY OF SEPTEMBER, 2016, upon consideration of Defendant’s Motion for Summary Judgment (Doc. 19), IT IS HEREBY ORDERED [*31] THAT:
1. Defendant’s Motion for Summary Judgment (Doc. 19) is DENIED.
2. A telephone scheduling conference will be held on Wednesday, October 5, 2016, at 4:00 p.m. Counsel for Plaintiff is responsible for arranging the call to (570) 207-5750, and all parties should be ready to proceed before the undersigned is contacted.
/s/ Robert D. Mariani
Robert D. Mariani
United States District Judge
Lotz et al., v. The Claremont Club et al., 2013 Cal. App. Unpub. LEXIS 5748
Posted: December 12, 2014 Filed under: Assumption of the Risk, California, Health Club, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Ambiguous, Assumption of risk, Day Care, Dodgeball, Gross negligence, Gym, Health club, Release, Summary judgment Leave a commentLotz et al., v. The Claremont Club et al., 2013 Cal. App. Unpub. LEXIS 5748
Nicholas, a Minor, etc., Plaintiffs and Appellants, Defendants and Respondents.
B242399
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
August 15, 2013, Opinion Filed
NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KC061412, Peter J. Meeka, Judge.
DISPOSITION: Reversed and remanded.
CORE TERMS: dodgeball, triable, membership, ball, summary judgment, issues of fact, gross negligence, sport, playing, racquetball, played, inherent risk, hit, childcare, assumption of risk, ambiguity, risk of injury, risk of harm, rubber ball, matter of law, participating, aggressively, supervised, training, thrown, riding, player, risk doctrine, risk doctrine, evidence showed
COUNSEL: Magaña, Cathcart & McCarthy and Charles M. Finkel for Plaintiffs and Appellants.
Manning & Kass, Ellrod, Ramirez, Trester, Anthony J. Ellrod and David J. Wilson for Defendants and Respondents.
JUDGES: FERNS, J. *; ASHMANN-GERST, Acting P. J., CHAVEZ, J. concurred.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
OPINION BY: FERNS, J.
OPINION
The trial court granted summary judgment in favor of defendants and respondents The Claremont Club (Club) and Adam Qasem (Qasem) on the complaint brought by minor Nicholas Lotz (Nicholas) by and through his guardian ad litem Deborah Lotz (Deborah) and Deborah individually (sometimes collectively appellants). 1 Nicholas was injured in a dodgeball game that took place while he was in the Club’s childcare program. The trial court ruled that a release signed by Nicholas’s father barred appellants’ claims and there was no evidence showing the Club’s conduct amounted to gross negligence beyond the scope of the release. It further ruled the primary assumption of risk doctrine [*2] barred appellants’ claims.
1 We use first names for convenience only; no disrespect is intended.
We reverse. The evidence offered by appellants showed there were triable issues of material fact regarding the scope and application of multiple releases, whether the Club’s and Qasem’s conduct constituted gross negligence and whether their conduct increased the risk of harm inherent in the game of dodgeball.
FACTUAL AND PROCEDURAL BACKGROUND
Club Membership.
In 2001, Thomas Lotz (Thomas) signed The Claremont Club Membership Agreement (Membership Agreement) and completed a membership information form indicating that he was seeking a family membership for himself, Deborah and their two children. On the information form, Thomas put a check mark by some of the specified sports and activities in which he and his family were interested in participating. Dodgeball was not included among the list of activities.
The Membership Agreement included a section entitled “Waiver of Liability” that provided in relevant part: “IT IS EXPRESSLY AGREED THAT USE OF THE CLUB FACILITIES, PARTICIPATION IN CLUB-SPONSORED OUTSIDE ACTIVITIES OR EVENTS AND TRANSPORTATION PROVIDED BY THE CLUB SHALL BE UNDERTAKEN BY A MEMBER [*3] OR GUEST AT HIS/HER SOLE RISK AND THE CLUB SHALL NOT BE LIABLE FOR ANY INJURIES OR ANY DAMAGE TO ANY MEMBER OR GUEST . . . .” The provision further stated that the member voluntarily assumed the risk of personal injury and released the Club and its employees from every demand, claim or liability on account of any personal injury.
On the same day he signed the Membership Agreement, Thomas signed a separate document captioned Waiver of Liability, Assumption of Risk and Indemnity Agreement (Waiver) that contained a provision stating: “This Agreement constitutes my sole and only agreement respecting release, waiver of liability, assumption of the risk, and indemnity concerning my involvement in The Claremont Club.” The Waiver further provided in part: “I, for myself, my spouse, if any, my heirs, personal representative or assigns, and anyone claiming through or under me do hereby release, waive, discharge, and covenant not to sue The Claremont Club . . . for liability from any and all claims including the negligence of the Claremont Club, resulting in damages or personal injury . . . .” The Waiver further identified certain activities provided at the Club–again excluding dodgeball–together [*4] with the risks arising therefrom, and required Thomas to assert that his participation was voluntary and “that I knowingly assume all such risks.” The Waiver’s concluding paragraph provided for Thomas’s understanding “THAT I AM GIVING UP SUBSTANTIAL RIGHTS, INCLUDING MY RIGHT TO SUE.”
Together with a Club attorney, Club president and chief executive officer Mike Alpert helped prepare the Waiver. According to Alpert, only the Waiver–not the waiver of liability contained in the Membership Agreement–was in full force and effect at the time Thomas signed both documents. None of the documents that Thomas and Deborah signed in connection with their Club membership informed them that dodgeball would be played on Club premises.
Nicholas Is Injured in a Dodgeball Game at the Club.
The “InZone” was part of the Club’s childcare department; it provided a clubhouse environment for older children that included ping pong, foosball and video games. In-house sports and a specialized fitness room were also available as part of the InZone. A document provided to parents describing InZone activities identified a number of sports in which a child might participate; it did not mention dodgeball.
On April 13, [*5] 2005, Deborah checked 10-year-old Nicholas into the InZone between 4:30 and 5:00 p.m. No one advised Deborah or Thomas that Nicholas might be playing dodgeball as part of the InZone activities. That day, Club employee Qasem was scheduled to work at the front desk. Eighteen-year-old Qasem had worked part-time at the Club for approximately one year as a lifeguard, weight room attendant and at the front desk. He had never worked in the InZone and the Club had not provided him with any training to work with children.
At some point during his shift, Qasem left the front desk to work in the children’s fitness room. He was the only individual supervising approximately eight to 15 children, including Nicholas. One of the children suggested the group play dodgeball, and Qasem agreed. He took the children to the Club’s racquetball court because he had observed dodgeball being played there once or twice. The Club’s written policies, however, stated “[o]nly racquetball, handball, squash and Wally ball may be played on the racquetball courts.” Qasem had never played dodgeball at the Club, nor had he ever seen any written rules concerning dodgeball.
Though Qasem was uncertain whether he provided the [*6] children with any rules before they began playing the game, he may have told them to throw the ball below their waists. During the game, anywhere from three to six balls were being thrown at one time; each rubber ball was filled with air and was about the size of a soccer ball. About 20 minutes into the game, Qasem threw a ball using a sidearm motion hard and fast toward Nicholas. The ball hit Nicholas’s face and slammed his head into the wall behind him, leaving tooth marks on the wall. Nicholas suffered multiple dental injuries as a result of being hit by the ball.
At the time of the game, Qasem was six feet tall and weighed approximately 145 pounds. According to Nicholas, Qasem had been playing aggressively throughout the game. By playing in the game, Qasem had also violated the Club’s then unwritten policy that supervisors not participate in dodgeball games with the children. No one had previously been injured in a dodgeball game at the Club. After that game, Qasem was disciplined for failing to follow childcare policies and procedures, and one of his superiors instructed him not to play dodgeball at the Club.
Nicholas had previously played dodgeball at school. Though the players [*7] were instructed to not throw the ball at other players’ heads, he understood there was some risk of being hit in the head with the ball. The balls used at school, however, were similar to a Nerf ball and softer than those used at the InZone. Had Thomas and Deborah been advised that Nicholas would be playing dodgeball on a racquetball court with rubber balls, they would not have given their permission for him to do so.
The Intramural Rules of Dodgeball provide the game is one in which players try to hit others with a ball and avoid being hit themselves. “The main objective is to eliminate all members of the opposing team by hitting them with thrown balls, catching a ball thrown by a member of the opposing team, or forcing them outside of the court boundaries.” The National Dodgeball League Rules and Regulations of Play specify that a player committing a “headshot”–hitting another player in the head by a high thrown ball–will be deemed out of the game.
The Pleadings and Summary Judgment.
In June 2011, appellants filed their complaint alleging negligence and gross negligence and seeking general and special damages. They alleged that Nicholas was injured as a result of the Club’s negligently [*8] and recklessly “a. hiring, employing, training, entrusting, instructing, and supervising defendant ADAM QASEM; [¶] b. failing to adequately [] protect children under the care of defendant ADAM QASEM; [¶] c. participating in a game of dodge ball in an unreasonably forceful and dangerous manner so as to endanger the health, safety and welfare of children placed by their parents into the care of defendants.”
In December 2011, the Club and Qasem moved for summary judgment. They argued that appellants’ negligence claims were barred by Thomas’s execution of a release and express assumption of risk, and according to the assumption of risk doctrine. They further argued their actions did not rise to the level of gross negligence. In support of their motion, they submitted the Membership agreement, appellants’ discovery responses, deposition excerpts and Qasem’s declaration. They also sought judicial notice of several principles related to dodgeball rules and manner of play.
Appellants opposed the motion and filed evidentiary objections. They argued that triable issues of material fact existed concerning the scope of the Waiver, whether the Club’s conduct amounted to gross negligence and whether [*9] Nicholas’s injury was the result of an inherent risk of the game of dodgeball. They offered deposition excerpts, Club policies, medical records and several declarations in support of their arguments. Sports and Recreational Consultants president Steve Bernheim opined that the Club “did not take the proper measures to protect the children who were in its care, custody and control during the dodgeball game in which Nicholas Lotz was injured.” More specifically, the children were not provided with game-appropriate rules, the racquetball court was an insufficient space, use of the rubber balls was inappropriate and an adult should not have been playing with the children. He further opined that Qasem acted recklessly and that his conduct, coupled with the other conditions of the game, increased the risks inherent in the game of dodgeball and were outside the range of ordinary activity associated with the sport.
The Club replied and also filed evidentiary objections. At a March 2012 hearing, the trial court granted the motion. Though the trial court edited the proposed judgment to eliminate any reasons for its ruling, at the hearing the trial court first referred to childhood dodgeball experience [*10] as the basis for its decision: “When I went to school, we called it Warball, and we didn’t use Nerf balls because there weren’t any. It was a ball. When it hit you, it stung. And we all knew that. Everybody knew it. And it was just one of those games you played in school, and high school for that matter.” Turning to the evidence, the trial court construed the Waiver to apply to Thomas’s family members as well as Thomas, reasoning that the Club would have expected Thomas to be executing a release on behalf of all family members when he joined. The trial court further explained that even if it were to ignore the Waiver, appellants’ claims would be barred by the assumption of risk doctrine. It further found that the Club’s and Qasem’s conduct did not rise to the level of gross negligence as a matter of law, reasoning there was no evidence that Qasem was trying to injure Nicholas and that such an injury could have occurred in the context of any type of sport. It did not rule on any of the evidentiary objections.
Judgment was entered in June 2012, and this appeal followed.
DISCUSSION
Appellants maintain that the trial court erred in granting summary judgment and assert they offered evidence [*11] sufficient to create triable issues of fact concerning the scope and application of the Waiver, the existence of gross negligence and the application of the assumption of risk defense. We agree that triable issues of fact preclude the granting of summary judgment.
I. Standard of Review.
We review a grant of summary judgment de novo and independently determine whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.) To secure summary judgment, the moving defendant must show that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action, and that it “is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) Once that burden is met, the burden “shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.)
We assume the role of the trial court and redetermine the [*12] merits of the motion. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) “In doing so, we must strictly scrutinize the moving party’s papers. [Citation.] The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. [Citation.] All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. [Citation.]” (Ibid.; accord, Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) “Because a summary judgment denies the adversary party a trial, it should be granted with caution. [Citation.]” (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1292.) The court’s role is to focus “on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Ibid.)
II. Appellants Raised Triable Issues of Fact as to Whether the Waiver Applied to Release Their Claims.
At the hearing on the motion, the trial court indicated that one basis for its ruling was the application of [*13] a written release. It stated: “Here, dad is signing the release on behalf of the family. Mom could have signed the release on behalf of the family and had a check and paid for the membership. And even though there are some slight twists and turns here, I guess nothing is ever completely crystal clear. I think the release really hurts the plaintiff or plaintiffs here.” Though the trial court’s comments fail to demonstrate whether it relied on the Membership Agreement or the Waiver as providing the operative release, the Club argues on appeal that the release contained in the Membership Agreement was clear and unambiguous, and applied to release appellants’ claims.
“California courts require a high degree of clarity and specificity in a [r]elease in order to find that it relieves a party from liability for its own negligence.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488 (Cohen).) Thus, “to be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party’s own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, [*14] must clearly notify the prospective releaser or indemnitor of the effect of signing the agreement.” (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318.) Waiver and release forms are strictly construed against the defendant. (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738.) But “a release need not achieve perfection” to be effective. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.) A release is sufficient if it “‘constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence.'” (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.)
Here, Thomas represented in his membership application that he sought Club membership on behalf of his family. The release contained in the Membership Agreement provided that the member and guests assumed the risk of Club activities and released the Club from liability for participation in Club activities. A contract in which a party expressly assumes a risk of injury is, if applicable, a complete defense to a negligence action. (See Knight v. Jewett (1992) 3 Cal.4th 296, 308, fn. 4 (Knight); Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304.) [*15] Moreover, it is well settled a parent may execute a release on behalf of his or her child. (Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1120 (Aaris); Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1565.) By offering evidence of the Membership Agreement, the Club met its threshold burden to demonstrate a complete defense to appellants’ negligence claims.
In contrast to the trial court, however, we conclude the evidence offered by appellants showing that the release was not “crystal clear” satisfied their burden to demonstrate triable issues of material fact. As summarized in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357: “The determination of whether a release contains ambiguities is a matter of contractual construction. [Citation.] ‘An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.’ [Citation.] The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. [Citation.] [*16] If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter. [Citations.]”
Here, appellants demonstrated an ambiguity by offering evidence that the Waiver–not the Membership Agreement–contained the operative release. The Waiver contained language effectively negating any other release, providing: “This Agreement constitutes my sole and only agreement respecting release, waiver of liability, assumption of the risk, and indemnity concerning my involvement in The Claremont Club. Any prior written or oral agreements, promises, representations concerning the subject matter contained in this Agreement and not expressly set forth in this Agreement have no force or effect.” Club president Alpert testified that only the Waiver was the operative agreement at the time Thomas joined the Club. The Waiver, however, inconsistently provided in one paragraph that Thomas was giving up his right to sue on behalf of his spouse and heirs, and in another paragraph that he was relinquishing only his personal right to sue. Other language in the Waiver that “I hereby assert that my participation is voluntary and that I knowingly assume all such risks” likewise [*17] suggested that the Waiver was intended to be personal only. Given appellants’ identification of an “alternative, semantically reasonable” construction of the Waiver, the evidence created a triable issue of fact concerning whether and to what extent the Waiver applied to appellants’ claims. (See Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.)
Beyond the issue of whether the Waiver or the Membership Agreement contained the operative release, appellants demonstrated a triable issue of fact as to whether the language of either document contemplated the type of injuries suffered by Nicholas. Both the Membership Agreement and the Waiver released the Club from liability for personal injury from Club activities. “‘Where a participant in an activity has expressly released the defendant from responsibility for the consequences of any act of negligence, “the law imposes no requirement that [the participant] have had a specific knowledge of the particular risk which resulted in his death [or injury.]” . . . Not every possible specific act of negligence by the defendant must be spelled out in the agreement or discussed by the parties. . . . Where a release of all liability for any [*18] act of negligence is given, the release applies to any such negligent act, whatever it may have been. . . . “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.“‘ [Citation.]” (Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, 1234-1235 (Leon).) 2
2 The Leon court separately evaluated an assumption of risk provision and a general release in a health club membership agreement. (Leon, supra, 61 Cal.App.4th at pp. 1234, 1235.) It reasoned that for an assumption of the risk provision to be effective, “‘it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm.'” (Id. at p. 1234.) We find this analysis sufficiently similar to that required for a general release to engage in a single evaluation.
Appellants offered evidence creating a triable issue of fact as to whether an injury from a child playing dodgeball was sufficiently related to the purpose of the release. Neither Thomas nor Deborah were ever informed that Nicholas would be playing dodgeball at the Club. Dodgeball [*19] was not identified as a Club activity in any of the Club materials. It was not listed as an activity in either the Membership Agreement or the Waiver. It did not appear on the list of Club activities in the membership information form. According to the Club’s written policies, it was not among the activities permitted to be played on the Club’s racquetball courts. Likewise, the Club maintained a policy to preclude supervisors from engaging in dodgeball games with children.
These circumstances are analogous to those in Cohen, supra, 159 Cal.App.4th 1476. There, the plaintiff was injured during a horseback ride when the guide unexpectedly caused his horse to gallop, knowing that it would cause the horses following to do the same, and the plaintiff was unable to control her galloping horse. (Id. at p. 1480.) Before riding, the plaintiff had signed a release that described some but not all of the risks inherent in horseback riding and provided that she agreed “‘to assume responsibility for the risks identified herein and those risks not specifically identified.‘ (Italics added.)” (Id. at p. 1486.) Finding this language unambiguous, the trial court granted summary judgment. (Id. at pp. 1482-1483.) [*20] The appellate court reversed, reasoning the exculpatory provision was problematic, as “[t]he ‘risks not specifically identified’ could refer to the risks inherent in horseback riding left unidentified by the phrase ‘some, but not all,’ which seems to us the most reasonable assumption, but it might also refer to risks arising out of respondent’s negligence that increase[] the inherent risks.” (Id. at p. 1486.) Stated another way, the court explained that “[t]he Release presented to appellant clearly does not unambiguously, let alone explicitly, release respondent from liability for injuries caused by its negligence or that of its agents and employees which increase a risk inherent in horseback riding.” (Id. at p. 1488.)
At a minimum, appellants’ evidence that dodgeball was an undisclosed risk and an activity contrary to the Club’s written policies raised a triable issue of fact as to whether it was a risk that was reasonably related to the purpose for which any release was given. Evidence of Qasem’s conduct likewise raised a triable issue of fact as to whether such a risk was encompassed by the Waiver. (See Cohen, supra, 159 Cal.App.4th at p. 1489 [“Nothing in the Release clearly, unambiguously, [*21] and explicitly indicates that it applies to risks and dangers attributable to respondent’s negligence or that of an employee that may not be inherent in supervised recreational trail riding,” italics omitted]; see also Sweat v. Big Time Auto Racing, Inc., supra, 117 Cal.App.4th at p. 1308 [release in favor of racetrack owner for injuries suffered while in a racetrack’s restricted area did not apply to injuries sustained after defectively constructed bleachers collapsed]; Leon, supra, 61 Cal.App.4th at p. 1235 [release that allowed the plaintiff to engage in fitness activities at a health club did not apply to injuries from a collapsed sauna bench].)
On the other hand, the circumstances here bear no similarity to those in Aaris, supra, 64 Cal.App.4th 1112, a case on which the Club relies. There, the court found that a high school cheerleader and her family assumed the risk of injuries resulting from cheerleading activities. On the basis of that finding, the court also affirmed summary judgment on the ground that a release of liability for school activities barred any claim for injuries. The court reasoned that the assumption of risk doctrine “embodies the legal conclusion that defendant [*22] owed no duty to protect appellant from the risk of harm inherent in the athletic activity. [Citation.] There being no duty, there was no negligence.” (Id. at p. 1120.) Ignoring that the Aaris court’s holding was based on a finding of no negligence rather than any application of the release, the Club emphasizes that the release applied notwithstanding its failure to specify “cheerleading,” and argues that the Membership Agreement’s and Waiver’s references to Club activities must therefore similarly be construed to encompass dodgeball. But in Aaris, the only reasonable inference to be drawn from the evidence was that the sole purpose of the release was to address injuries resulting from cheerleading. Here, Thomas and Deborah did not even know that Nicholas would be participating in a dodgeball game. Moreover, the trial court in Aaris ruled that the undisputed evidence showed “‘that the instructor did not increase the risk of harm inherent in the activity, the participants received adequate and proper[] training in technique and safety, and they were properly and reasonably supervised.'” (Id. at p. 1117.) In sharp contrast, appellants’ evidence showed that Qasem should not have been playing [*23] dodgeball and played aggressively, he violated the Club’s written policy concerning use of the racquetball court and no one else was supervising the game.
Finally, appellants offered evidence to show that the InZone was part of the Club’s childcare department. On the day of the dodgeball game, Deborah signed Nicholas in to the Club’s InZone program. Club wellness director Denise Johnson testified that she was aware children played dodgeball on the racquetball courts while being supervised under the childcare department. To the extent that the Club’s Membership Agreement or Waiver purported to release it from liability for injuries occurring in its childcare program, appellants raised a triable issue of fact as to whether such an agreement would be void against public policy. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 676 [“we hold that exculpatory agreements that purport to relieve child care providers of liability for their own negligence are void as against public policy”].)
In sum, the evidence offered on summary judgment demonstrated that the Membership Agreement and/or the Waiver did not clearly and explicitly release the Club from liability for Nicholas’s [*24] injuries. In view of the ambiguities concerning whether the Membership Agreement or the Waiver applied, whether the language in either document was sufficient to cover the Club’s conduct and whether any release violated public policy, a trier of fact could find that the Club was not released from liability. (See Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1288 [“if a release is ambiguous, and it is not clear the parties contemplated redistributing the risk causing the plaintiff’s injury, then the contractual ambiguity should be construed against the drafter, voiding the purported release”].) The undisputed evidence failed to show the Club and Qasem were absolved from liability as a matter of law according to the Membership Agreement or the Waiver.
III. Appellants Raised Triable Issues of Fact Whether the Club Was Liable for Gross Negligence.
In City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751 (Santa Barbara), our State’s highest court held “that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” Relying on Santa [*25] Barbara, appellants opposed the Club’s summary judgment motion on the alternative ground that, even if the Club’s most comprehensive release language was unambiguous, there was a triable issue of fact as to whether the Club’s conduct amounted to gross negligence. The trial court ruled: “It is not gross negligence. He wasn’t trying to injure the child on purpose, any more than a child would be injured playing hockey or soccer, or anything like that.” Again, we disagree.
California courts define “‘gross negligence'” “as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘ [Citations.]” (Santa Barbara, supra, 41 Cal.4th at p. 754; accord, Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 857.) Gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results.” (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729, disapproved on other grounds in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) In contrast to willful misconduct, gross negligence does not require an intent to do harm or to act with absolute disregard of the consequences. (Meek v. Fowler (1935) 3 Cal.2d 420, 425; [*26] see also Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal.2d 656, 662 [“While gross negligence may involve an intent to perform the act or omission, wilful misconduct involves the further intent that the performance be harmful or that it be done with a positive, active and absolute disregard of the consequences”].) Though not always, “[g]enerally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence. [Citations.]” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358; accord, Santa Barbara, supra, at pp. 767, 781.)
Appellants offered sufficient evidence to create a triable issue of fact as to whether the Club’s and Qasem’s conduct amounted to gross negligence. According to the undisputed evidence, while the Club’s policies prohibited dodgeball being played on the racquetball courts, Club employees–including the childcare director–knew the courts were used for children’s dodgeball games. Nonetheless, none of the Club’s materials identified dodgeball as an available activity. Consistent with the Club’s failure to acknowledge dodgeball as an ongoing activity, it failed to promulgate rules to insure the game was played [*27] safely. When Nicholas was dropped off at the InZone program, no one advised his parents that he might play dodgeball. In this particular instance, children initiated a dodgeball game while being supervised by an 18-year-old front desk clerk who had no childcare training. Qasem selected inflated rubber balls for the game and participated aggressively in the game with the children, even though the Club’s policy was that supervisors not play dodgeball. Nicholas was injured after Qasem threw the ball extremely hard and extremely fast, using a sidearm motion.
On the basis of this evidence, appellants offered Bernheim’s expert opinion that “the injury to Nicholas Lotz occurred during an extreme departure from what must be considered as the ordinary standard of conduct when children are playing dodgeball and are supposed to be . . . supervised.” We agree that appellants’ evidence was sufficient to raise a triable issue of fact as to whether the Club’s and Qasem’s conduct was an extreme departure from ordinary care or, at a minimum, demonstrated passivity and indifference toward results. A trier of fact could find gross negligence on the basis of the Club’s failure to address the repeated violation [*28] of its own policy prohibiting dodgeball play on the racquetball courts, failure to implement rules or policies designed to protect those playing dodgeball and failure to provide any training to individuals assigned to supervise the children in its childcare program. Triable issues existed as to whether the Club’s and Qasem’s conduct was grossly negligent and therefore outside the scope of any release in either the Membership Agreement or the Waiver.
IV. Appellants Raised Triable Issues of Fact Whether the Assumption of Risk Doctrine Barred Liability.
As a further basis for granting summary judgment, the trial court determined that the Club met its burden to show the primary assumption of risk doctrine was a viable defense and that appellants failed to offer any effective rebuttal. It analogized the circumstances here to those in a previous case in which it found the doctrine barred recovery to a high school student injured during a soccer game. We fail to see the analogy.
“Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended [*29] elbow in basketball are considered inherent risks of those respective sports. [Citation.] Primary assumption of risk is a complete bar to recovery. [Citation.] [¶] Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature. [Citation.]” (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751-752, citing Knight, supra, 3 Cal.4th 296.) “Knight however does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.‘ ([Knight, supra,] 3 Cal.4th at pp. 315-316, italics added.) Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood of injury above that which is [*30] inherent. (Id. at p. 315.)” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827.) Thus, “when the plaintiff claims the defendant’s conduct increased the inherent risks of a sport, summary judgment on primary assumption of risk grounds is unavailable unless the defendant disproves the theory or establishes a lack of causation. [Citations.]” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 740.)
Much of appellants’ evidence that we deemed sufficient to raise a triable issue of fact on the question of gross negligence likewise created a triable issue as to whether the Club and Qasem increased the risk of harm inherent in the game of dodgeball. 3 Certainly, being hit by a ball is one of the objectives of and hence an inherent risk in the game of dodgeball. But appellants’ evidence tended to show that the Club and Qasem increased that risk in a number of ways, including by playing on an enclosed racquetball court which was neither intended nor permitted to be used for dodgeball; by selecting rubber balls for the game; by allowing an adult untrained in childcare not only to participate in the game with the children but also to abdicate any supervisory role over them during the game; and by enabling [*31] that adult to play aggressively with the children. Given the totality of the circumstances, we cannot say, as a matter of law, that Nicholas assumed the risk of being hit in the head with a ball.
3 We acknowledge that the application of the primary assumption of risk doctrine is a question of law. (Knight, supra, 3 Cal.4th at p. 313.) But where a defendant engages in conduct that is not an inherent risk of the sport and the imposition of a duty of care will neither alter the nature of nor chill participation in the sport, the question becomes one of ordinary negligence, with the remaining elements beyond duty to be determined by a trier of fact. (Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 565-567.)
Other courts have similarly reversed a grant of summary judgment where the plaintiff’s evidence raised a triable issue of fact as to whether the defendant’s conduct increased the inherent risks in a sport or other recreational activity. Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112 is particularly instructive. There, the plaintiff filed suit after he was injured by a foul ball while watching a baseball game, and the trial court granted summary judgment, finding [*32] the doctrine of primary assumption of risk barred his claims. (Id. at p. 120.) In reversing, the appellate court relied on evidence showing the plaintiff was hit when he turned toward a team mascot who had repeatedly tapped his shoulder. (Id. at pp. 117-118, 123.) The court explained that while foul balls represent an inherent risk to spectators attending a baseball game, “we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.” (Id. at p. 123; see also Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 591 [though skiers assume the risk of injury from the sport, triable issue of fact existed whether ski resort’s jump design increased the risk of harm]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134 [while a golfer assumes the risk of being hit by a golf ball, golf course owner owes a duty to minimize that risk, and the plaintiff raised a triable issue of fact as to whether that duty was breached where evidence showed the design [*33] of certain holes may have increased that risk].)
We find no merit to the Club’s and Qasem’s argument that appellants’ evidence demonstrated merely that their conduct may have increased the severity of Nicholas’s injuries as opposed to increasing the risk of injury. In Calhoon v. Lewis (2000) 81 Cal.App.4th 108, the plaintiff suffered injury when he fell off his skateboard and hit a metal pipe protruding from a planter in the defendants’ driveway. Finding the primary assumption of risk doctrine barred his claims, the court rejected the plaintiff’s argument that the concealed metal pipe increased his risk of harm: “[The plaintiff] was injured because he fell. As [he] concedes, falling is an inherent risk of skateboarding, and the presence of the pipe or the planter had nothing to do with his falling down. The fact that [his] injuries were more severe than they would have been if the pipe had not been in the planter does not make the assumption of risk doctrine inapplicable. The Knight exception applies when the defendant increased the risk of injury beyond that inherent in the sport, not when the defendant’s conduct may have increased the severity of the injury suffered.” (Id. at p. 116.) [*34] Here, in contrast, appellants’ evidence showed that the Club and Qasem increased the risk of injury by initiating the dodgeball game in which Nicholas participated. This was not the type of situation where Nicholas would have been playing dodgeball absent the Club’s and Qasem’s involvement. Moreover, the evidence raised a triable issue of fact as to whether the Club and Qasem increased the risk of injury by permitting dodgeball play on the racquetball court, by failing to adopt rules for safe play, by Qasem’s failing to act as a supervisor during the game, by his selecting rubber balls for the game and by his participating aggressively in the game. The Club and Qasem were not entitled to summary judgment on the ground the primary assumption of risk doctrine barred appellants’ claims.
DISPOSITION
The judgment is reversed and the matter is remanded with directions for the trial court to vacate its order granting summary judgment and to enter a new order denying summary judgment. Appellants are entitled to their costs on appeal.
, J. *
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
FERNS
We concur:
, Acting [*35] P. J. ASHMANN-GERST , J. CHAVEZ
Colorado District court judge rules a ski area release does not cover the back entrance to a restaurant
Posted: December 3, 2014 Filed under: Colorado, Release (pre-injury contract not to sue), Ski Area | Tags: Alpine skiing, ASC, Aspen Highlands, Aspen Skiing Company, Assumption of risk, backdoor, Cloud 9, Cloud 9 restaurant, Release, restaurant, Ski Resort, SkiCo, skiing, Winter sport Leave a commentSeason pass holder went in the back door of restaurant to warm up. Slipped and fell in kitchen on way back out. Ski area sued for broken elbow.
This case has a long way to go as the trial has not even occurred. However it is sort of interesting based on the limited information available. Basically the language of the release was not enough to stop a lawsuit over a slip and fall in a building on the mountain.
The basis for the judge’s ruling, based on the article, is the term “facility” is not defined in the release to include restaurants. More importantly no release probably covers the back door entrance.
Bigger will be the response by the ski area.
· Will they put “employee only signs” on the back doors of all their buildings?
· Will they modify their release to provide better coverage for their buildings
· Will they put signs and mats down as the court seems to want?
Let me know your picks!
See Judge rules against SkiCo’s waiver in lawsuit
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Good advice but bad releases can be found at this website.
Posted: June 25, 2014 Filed under: Insurance, Release (pre-injury contract not to sue) | Tags: Assumption of risk, Business, K&K Insurance, Law, Lawyer, Release, Saddler, Saddler Sport Insurance, Sport Insurance, Waiver Leave a commentThe disclaimers at the bottom of the free documents are the most important part; you need YOUR attorney to write your release.
I check out this site for information I can pass on: Sadler Sports & Recreation Insurance. A couple of times a year, I pass on good information. At the same time, all websites (even this one) can pass on bad information and Sadler Sports & Recreation Insurance is no exception. They are offering free releases. Here is the disclaimer.
This is a SAMPLE WAIVER FORM only. Final wording should be as directed by the insured’s counsel, but must observe the principles represented within the above. This form provided courtesy of K&K Insurance Group.
The releases are from K&K Insurance Group. K&K is a great insurance company in the outdoor recreation industry. At the same time, by providing bad releases, they are creating their own claims.
The first release offered is a release for a parent to waive a minor’s claims. That only work in a few states. (See States that allow a parent to sign away a minor’s right to sue.) So in every other state, you need an assumption of risk form. This “release” is not that. In those few states that do accept a release to stop a minor’s claims, this release does not meet the requirements of two of the states.
Neither release has a jurisdiction and venue clause. That would allow the injured plaintiff to bring a suit and argue the lawsuit should be in a state where releases are not supported. (See States that do not Support the Use of a Release.) The adult release also includes a place for a parent to sign for a child. (???)
Find an attorney that knows what you do, understands release law and can write a release for you. If you want to print and hand the attorney, these releases (as a joke) do so. If the attorney uses them…..find another attorney.
See Sadler Sports & Recreation Insurance
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What do most attorneys think of extreme sports? ABA article provides some idea of their thinking.
Posted: June 10, 2014 Filed under: Racing, Release (pre-injury contract not to sue), Sports | Tags: ABA, American Bar Association, Assumption of risk, Death Waiver, Extreme Sports, Obstacle Course, Plaintiff, Release, Spartan, Sport, Tough Mudder, Waiver Leave a commentHowever, even the American Bar Association (ABA) article is almost evenly written. What it does is bring up additional way’s plaintiff’s attorneys are attacking releases. It is well worth the read.
Here are some interesting quotes from the article.
However, unlike in other sports, the inherent risks aren’t always obvious; indeed, they are often intentionally magnified to titillate participants and crowds. This pushes the new sport somewhat outside the traditional framework of negligence and assumption of risk.
There seems to be a theory that the inherent risks are part of the necessity of a release. I’m not sure I agree, but I always suggest you include the risks, inherent and otherwise in your release.
Indeed, Tough Mudder racers often brag about having “survived” the event after signing what they like to call the “death waiver,” essentially a catchy phrase for any liability waiver that encompasses death. Obstacle course racing companies routinely tout the fact that participants could die during their event, upping the ante for thrill-seekers.
You can die doing anything. Consequently, you should point out in any release that a participant can die. I’ve known of a two lawsuits where someone had a heart attack while rafting, then fell in the river.
But critics argue that the waivers don’t adequately disclose the full panoply of dangers, and that many of the obstacles are made unnecessarily perilous.
The issue here is if the injured plaintiff can argue and prove that you purposely left out risks your release may be void. You are always at risk if you increase the risk of an activity and do not inform your guests.
“Lines have to be drawn between what the participants are signing up for and what they’re actually getting,” says Sengupta’s attorney, Robert J. Gilbert of the Andover, Mass.-based firm Gilbert & Renton. “Participants sign up for the challenge, but it’s less clear that they sign up for the dangers—particularly the undisclosed dangers or gratuitous dangers.”
Here again, this is another argument showing that you cannot mislead your guests or participants.
For example, defendants typically cannot escape liability in the event that their conduct in any way increased the risk of the activity, say, purposely shaping a ski jump to be wantonly dangerous or failing to put water stations on a marathon course. Another question pertaining to the enforceability of a waiver is whether the risk could be removed without changing the nature of the activity.
The first issue is obvious. The second, whether the increased risk can be changed, is where people, in these case writers and attorneys get lost. They do not understand the personal and emotional goals someone receives when they reach these goals or participate in these sports.
The following quote sums up the legal issues that you must be aware of!
On the one hand Tough Mudder holds up signs saying ‘Remember you signed a death waiver’ … while trying to downplay the same risk that they’re encouraging their participants to accept. That leads to questions of fraudulent inducement.”
Fraudulent inducement voids a release, and in some states would make you liable for additional damages and/or claims of negligence greater than ordinary negligence.
What I did get a kick out of was the sign from the Tough Mudder events.
Based on the sign, I think you opted out of death, right?
Read the article and read the comments both are enlightening.
See: Extreme sports are more popular than ever, prompting questions about legal liability.
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Whitewater rafting, 13 injuries one death and release in WV are upheld. Management-level employees of DC health care company rafted river in allegedly high water causing injuries.
Posted: May 12, 2014 Filed under: Release (pre-injury contract not to sue), West Virginia, Whitewater Rafting | Tags: Admiralty Law, Assumption of risk, Defendant, Maritime Law, Raft, Rafting, Recreation, Shenandoah River, West Virginia, Whitewater Rafting, Writ of Prohibition 4 CommentsWest Virginia Supreme court holds that admiralty or maritime law does not apply to whitewater rafting.
Date of the Decision: December 10, 2008
Plaintiff on Appeal, Defendants at the trial court: River Riders, Inc., and Matthew Knott, Petitioners
Defendant: The Honorable Thomas W. Steptoe
Third parties on appeal: plaintiff’s at the trial court: Executor of the estate of the deceased and the 13 injured plaintiffs
Plaintiff Claims: failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code
Defendant Defenses: release
Issue on Appeal: Whether the trial court had improperly held the whitewater rafting trip was subject to federal admiralty law.
Holding:
This is an interesting case from a procedural perspective as well as a factual one. The issue on appeal is not a review of a complete ruling by the trial court but of a ruling that the defendants, and the court felt would influence the final decision. Meaning the defendant could convince the appellate court that the trial court’s ruling was probably wrong and unless corrected now, the entire trial would have to be done again.
The facts are people went rafting on the Shenandoah River in West Virginia. Before embarking on the trip each person signed a “Release, Assumption of Risk and Indemnity Agreement.” The water was higher than average on the day of the raft trip; 12.5 feet compared to an average of 2 to 4 feet. During the raft trip four of the rafts dumped, sending several people into the water, including the deceased and thirteen other rafters into the river.
Two separate lawsuits were filed over the incident. The first was by the estate of the deceased. The second lawsuit was filed by the other thirteen injured rafters.
The complaints of the plaintiff allege several issues:
…River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987).
…that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area.
…failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase.
The complaint for the wrongful death included the following claims:
two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a
Prior to trial, the plaintiff’s filed a motion in limine to exclude the release agreement which the court granted. The court relied upon a prior West Virginia Supreme Court case that held since there was a statute supporting and providing defenses for the whitewater rafting industry, a release was no long available as a defense. Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991)
Another motion in limine was filed by the plaintiff’s arguing that assumption of risk could not be a defense because the case was governed by maritime law.
Finally, the plaintiff’s filed a motion to consolidate both lawsuits into one and have one trial. This motion was also granted by the court.
The defendants then filed motions with the West Virginia Supreme court arguing that the motions of the trial court were wrong, and the court had to intervene for a fair trial to occur. This motion was called a Writ of Prohibition.
The West Virginia Supreme Court granted the Writ but only as to the issue of whether or not maritime law applied to a whitewater rafting case in West Virginia.
This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency.
The court declined to review the other issues because a writ of prohibition was not the proper way to argue the issues and timing of those issues were best left to the appeal of the case.
Summary of the case
To be subject to Federal maritime law a two-prong test must be met, “whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity.”
In determining whether or not the accident occurred on navigable waters the trial court should have included an analysis of “…whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” and determined the “the activity of whitewater rafting does not constitute traditional maritime activity and is therefore, not governed by maritime law.”
…given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted.
Nor could the court find any decision where admiralty law had been applied to whitewater rafting.
Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raftin rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity.
The appellate court sent the case back down with two of the rulings intact.
So Now What?
Admiralty law is a separate area of the law. It was developed prior to the formation of the United States for commerce between countries. It has very different rules for liability, worker’s compensation and other legal issues. In the US, admiralty law also applies to travel on major rivers and waterways. When and how admiralty law is applied is dependent upon the federal statute and the type of admiralty activity. As an example there are more than a dozen different definitions of navigable for different maritime activities.
Admiralty law came from commerce. Admiralty law has been applied to recreational activities in the past, such as using personal water craft, however, in all of those cases; the activity was on the ocean or large bodies of water.
Admiralty law could be used in some states on some rafting rivers as a defense, if handled by a law firm knowledgeable in admiralty law. If the jurisdictional issues are met, a defendant can go to court within six months of an accident and file a notice (open a case) and post a bond. The reason for doing this is, under admiralty law, the damages available to the plaintiff’s is limited to the value of the vessel and its contents after the accident. However, by doing this the raft company may be admitting liability and must prove it was an admiralty issue.
This law as created to limit the damages of a ship owner to not bankrupt the owner or the industry. A $10,000 raft, frame and gear are a relatively cheap and easy way to get out from under a potential claim. However, if you fail to meet the requirements but are still subject to admiralty law, you do not have several defenses normally relied upon to stop claims: releases and assumption of the risk.
To some extent, we are left hanging by the decision on whether a release is valid as a defense in a rafting accident in West Virginia. However, the decision on whether the federal maritime law is applicable is valuable.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Recreation Law 