Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

Craig Blanchette, Plaintiff and Respondent,

v.

Competitor Group, Inc., Defendant and Appellant.

D073971

California Court of Appeals, Fourth District, First Division

November 20, 2019

NOT TO BE PUBLISHED

APPEAL from a judgment and postjudgment order of the Superior Court of San Diego County No. 37-2016-00018380- CU-PO-CTL, Richard E. L. Strauss, Judge. Affirmed.

Horvitz & Levy, S. Thomas Todd, Eric S. Boorstin; Daley & Heft, Robert H. Quayle IV, Lee H. Roistacher and Rachel B. Kushner for Defendant and Appellant.

Higgs Fletcher & Mack, John Morris, Rachel E. Moffitt; RDM Legal Group, Russell Myrick and Keith Rodenhuis for Plaintiff and Respondent.

IRION, J.

Plaintiff Craig Blanchette (Plaintiff), then an elite wheelchair racer, competed in the 2014 San Diego Rock ‘n’ Roll Marathon (Marathon), which was owned and operated by defendant Competitor Group, Inc. (Defendant). During the race, Plaintiff was injured as he attempted a 90 degree left-hand turn, could not complete the turn, went through the orange traffic cones that marked the course boundary, and crashed into a car stopped at a traffic light in a lane outside the course.

Following a jury trial on one cause of action for gross negligence, the court entered a judgment in favor of Plaintiff and against Defendant in the amount of $3.2 million. On appeal, Defendant argues, as a matter of law, that it neither acted grossly negligent nor increased the risk inherent in wheelchair racing on city streets. As we explain, Defendant did not meet its burden of establishing, as a matter of law, either that it was not grossly negligent or that Plaintiff assumed the risk of the injuries he received. Thus, we will affirm the judgment and the order denying Defendant’s postjudgment motions.

I. FACTUAL BACKGROUND[ 1]

Due to a birth defect, Plaintiff’s femur bones are about two inches long, and Plaintiff has used a wheelchair since he was in the eighth grade. When Plaintiff was 15 years old, his grandfather bought him his first racing wheelchair. Plaintiff participated in his first professional wheelchair race two years later in 1986, placing fifth in a field of 250. He won his next eight races, setting four world records along the way. At age 20, Plaintiff won a bronze medal in the 1988 Summer Olympics; and over the next approximately 11 years of competition (i.e., prior to the year 2000), he set 21 world records and obtained sponsors.

Plaintiff took a break from wheelchair racing, competing in hand cycling for a few years. He eventually returned to wheelchair racing; and, by June of 2014, he was again “in race shape” as an elite athlete and participated in the Marathon.[ 2] Plaintiff described the “elite level” of wheelchair racing as the professional level, “allow[ing] you to make money competing[.]” Indeed, the Marathon had an elite athlete coordinator who invited Plaintiff, then a resident of Washington state, to come to San Diego to compete at the event. By that time Plaintiff had competed in hundreds of wheelchair races.

Plaintiff arrived in San Diego two days before the Marathon. Because he had not previously competed in a San Diego Rock ‘n’ Roll Marathon, during that time he “did everything” he was aware of to prepare for the race. He reviewed the basic course map; he studied “the virtual tour” video-at least 15 times-which played continuously on a monitor in the lobby of the hotel where the elite racers stayed; he went to the prerace exposition, where competitors signed in and received their racing bibs; and the night before the race, he attended the all-competitor meeting which included a general safety check, the distribution of additional copies of the basic course map, and the further opportunity to view the virtual tour video.

The basic course map that Defendant provided Plaintiff was on one piece of paper and covered the area from Balboa Avenue on the north to National Avenue/Logan Avenue on the south and from west of Interstate 5 on the west to Interstate 15 on the east. The marathon course is shown in a solid red line; the half-marathon course is shown in a solid blue line; and some of the shorter streets on the courses are unidentified. The virtual tour was a video of the entire racecourse, from start to finish, recorded from a car that traveled the streets of the course during normal daytime traffic conditions.[ 3] The entire video played at a speed that covered the entire 26.2-mile course in approximately five minutes-i.e., at a rate in excess of 300 miles per hour-and ran on a continuous loop in multiple locations.

The virtual tour video of the racecourse was especially important to Plaintiff, since wheelchair racers rely on the “racing line” they choose to maximize speed to gain an advantage during competition. According to Plaintiff, a wheelchair racer tries to “have the fastest racing line through” the turns; “you start wide, you taper down narrow,” completing the turn in “the exit lane.” In particular, from the virtual tour video, Plaintiff had studied the intersection where his accident occurred-11th Avenue just south of its intersection with B Street-and the racing line he would take as he turned left from B Street onto 11th Avenue.

According to the individual who was Defendant’s president and chief executive officer at all relevant times, [ 4] Defendant made available a one page document entitled “Turn by Turn Directions” (turn-by-turn directions) that listed each of the Marathon’s more than 40 turns and specified for each whether the entire street (“whole road”) or a portion of the street (e.g., “southbound lanes,” “east side of road,” etc.) was part of the racecourse. (See fn. 7, post.) Defendant presented evidence that these directions were available only on Defendant’s website and at an information booth at the prerace exposition. There is no evidence either that Defendant told Plaintiff about these directions or that Plaintiff knew about these directions; and Plaintiff testified that, before this lawsuit, he had never seen a copy of the turn-by-turn directions.

Defendant also presented evidence that it had provided the elite wheelchair racers with “a 24-hour concierge” who was able to answer questions they had, including information about or a tour of the racecourse. Defendant’s president and chief executive officer confirmed, however, that a competitor would have to contact the concierge and request services and that Defendant did not offer tours directly to the racers. In any event, there is no evidence that Plaintiff was aware of either the concierge or the services Defendant’s witness said the concierge could provide.

Finally, Defendant presented evidence that it provided bicycle-riding “spotters” on the racecourse who were responsible for providing visual cues to alert the elite racers-both those running and those wheeling-of course conditions. Defendant did not present evidence that any of its spotters was at or near the location of Plaintiff’s accident at any time; Defendant’s witnesses did not know the location of any of the spotters at or near the time of Plaintiff’s accident; and Plaintiff did not see any spotters on the racecourse at or near the place of his accident.

At the Marathon, Defendant hosted approximately 25, 000 athletes-five of whom competed in wheelchairs. The wheelchair racers started first, since they travel at much faster speeds than the runners.[ 5]

The accident occurred early in the race, approximately 3.9 miles from the start.[ 6] The Marathon began on 6th Avenue at Palm Street and proceeded north approximately one mile to University Avenue; the course continued east (right turn) on University Avenue for more than one-half mile to Park Boulevard; and then the course went south (right turn) on Park Boulevard for approximately two miles. The following two turns in quick succession, at times referred to “a zigzag” or “an S turn,” led to the accident: At the intersection of Park Boulevard and B Street, the racers made a 90 degree right turn (west) onto B Street; and one block later, they made a 90 degree left turn (south) onto 11th Avenue. At the speed he was traveling, Plaintiff was unable to negotiate the left turn from B Street onto 11th Avenue. Instead of completing the left turn and continuing south on 11th Avenue, at about 45 degrees, Plaintiff went off the course to the west and crashed into a car stopped at a traffic light in the western-most lane of 11th Avenue.

There are three lanes on B Street and four lanes on 11th Avenue. Under normal conditions on 11th Avenue, all four lanes of vehicle traffic travel northbound and merge into a freeway two blocks north of B Street. During the race, the far west lane of 11th Avenue was unavailable for the southbound racers; instead, it was kept open for northbound vehicle traffic from downtown to the freeway.

 Approximately one hour before the race, Defendant closed the Marathon streets downtown and, as relevant to this lawsuit, set up traffic cones, 15 feet apart, which directed the Marathon racers to make the left turn from the three lanes of B Street to the three eastern lanes of 11th Avenue-thereby eliminating the west lane of 11th Avenue to wheelchair racers and making it available for vehicles traveling north to the freeway. At all times, including well in advance of the Marathon, Defendant knew that the west lane of 11th Avenue would be closed to competitors and open to vehicle traffic: Defendant was using the same course it had used in prior years; and Defendant had prepared and provided to many others “an internal working document” that contained sufficient detail to show the traffic cones and elimination of the west lane on 11th Avenue. In this latter regard, Defendant provided its “internal working document” to the course setup teams, the traffic control setup teams, the bands, the aid stations, the medical people, and “those that needed that level of detail”-but not to the elite wheelchair racers.

Not until he was racing-indeed, not until the point in time at which he was at the west end of the one block of B Street, turning left onto 11th Avenue at a speed in excess of 20 miles per hour-did Plaintiff first learn that Defendant had closed the west lane of 11th Avenue to racers and left it open to motor traffic. Nowhere in what Defendant provided-which included the basic course map, the virtual tour video of the course, and the information at the prerace exposition (sign-in) and the all-competitor safety check meeting-was Plaintiff told that, as the racecourse turned left from B Street to 11th Avenue: the west lane of 11th Avenue would be unavailable to racers; a row of orange traffic cones would separate the three east lanes of 11th Avenue (i.e., the course) from the one west lane (i.e., outside the course); or cars would be in the one west lane of 11th Avenue while the racers would be limited to the three east lanes, separated only by traffic cones 15 feet apart from one another.

This was significant to Plaintiff. In planning his speed and racing line for the S curve (right turn from Park Blvd. to B St. followed immediately by the left turn from B St. to 11th Ave.), he had to know his exit lane on 11th Avenue in order to “set up for this corner.” That is because, according to Plaintiff, “the width of the exit is the primary factor that determines the speed of entrance.” To safely set up for the S curve, for example, “you had to know the specifics of what was happening on 11th [Avenue] back on Park [Boulevard]” in order to maneuver the S curve “at the right speed.” More specifically, Plaintiff testified that he “would have needed to know about this racing lane elimination [on the west side of 11th Avenue] prior to entering the corner on [B Street]-off of Park [Boulevard].”[ 7] (Italics added.)

That did not happen. Based on the information Defendant provided Plaintiff-i.e., from studying the basic course map and the virtual tour video, and attending the prerace exposition and the all-competitor meeting-Plaintiff had no reason to suspect that his planned exit lane would be closed to wheelchair racers and open to cars. Given his speed, his “racing line,” and his view of the road, Plaintiff had only two seconds from the time he first learned that the west lane of 11th Avenue was unavailable as an exit lane until he crossed the boundary and crashed into the car in the west lane.

Plaintiff testified that, throughout his 30 years of racing, he had “never seen a lane elimination like that” on the turn from B Street to 11th Avenue at the Marathon. Consistently, another of the elite wheelchair racers who competed at the Marathon testified that, based on the approximately 140 races in which he has participated over 27 years, he would not expect motor vehicle traffic like the wheelchair racers encountered on 11th Avenue. Finally, Plaintiff’s expert testified: changing a racecourse that a wheelchair racer is expecting an hour before the race is not only misleading but “would make the race inherently more dangerous”; “on Sunday morning there can be no changes”; and the organizer of the race is responsible for ensuring the safety of the competitors.

As a result of the crash into the stopped vehicle on 11th Avenue, Plaintiff suffered personal injuries, including broken bones, and the healing process required multiple surgeries. Since the accident at the Marathon, Plaintiff has been unable to compete as an elite athlete in longer wheelchair races.

II. PROCEDURAL BACKGROUND

In June 2016, Plaintiff filed a complaint based on the injuries he suffered during the Marathon when he crashed into the stopped vehicle on 11th Avenue. The operative complaint is a first amended complaint in which Plaintiff alleged three causes of action-negligence, gross negligence, and fraud-against Defendant and two other entities.

As to the two other entities, the trial court granted their summary judgment motion, and there is no issue on appeal as to these defendants or the claims Plaintiff alleged against them. As to Defendant, the trial court granted its motion for summary adjudication as to the claims for negligence, fraud, and punitive damages; and there is no issue on appeal regarding these claims. The case proceeded to a jury trial on Plaintiff’s one claim for gross negligence against Defendant.

Over the course of seven days in January 2018, the trial court presided over a jury trial, and the jury returned a verdict in Plaintiff’s favor, finding in relevant part: Defendant was grossly negligent (vote 9-3); Plaintiff did not assume the risk of the injury he suffered (vote 9-3); Plaintiff suffered damages in the amount of $4 million (vote 12-0); and Plaintiff was 20 percent contributorily negligent (vote 10-2). Accordingly, the court entered judgment for Plaintiff and against Defendant in the amount of $3.2 million.

Defendant filed postjudgment motions, including supporting documentation, for a new trial and for a judgment notwithstanding the verdict. Plaintiff filed oppositions to the motions, and Defendant filed replies to Plaintiff’s oppositions. Following hearing, in March 2018 the trial court denied Defendant’s motions.

Defendant timely appealed from both the judgment and the order denying the postjudgment motions.

III. DISCUSSION

Defendant contends that the judgment should be reversed with directions to enter judgment in Defendant’s favor on either of the following two grounds: (1) As a matter of law, Plaintiff failed to establish gross negligence by Defendant; or (2) as a matter of law, Defendant established that it did not unreasonably increase the risk (i.e., Plaintiff assumed the risk) that Plaintiff would injure himself by turning from B Street to 11th Avenue at too high a speed to complete the turn.

The parties disagree as to the standard of review to be applied. Defendant argues that, because the material facts are undisputed and only one inference can reasonably be drawn, we review both issues de novo. In response, Plaintiff argues that, because material facts were disputed-or, at a minimum, conflicting inferences exist from the undisputed facts-we review both issues for substantial evidence. As we explain, under either standard we must consider the evidence in a light most favorable to Plaintiff; thus, in essence, we will be reviewing both issues for substantial evidence. In doing so, we apply well-established standards.

We “look to the entire record of the appeal,” and if there is substantial evidence, “it is of no consequence that the [jury] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics deleted.)” ‘[T]he test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent.'” (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 770.) “If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) The fact that the record may contain substantial evidence in support of an appellant’s claims is irrelevant to our role, which is limited to determining the sufficiency of the evidence in support of the judgment actually made. (Ibid.)

In determining the sufficiency of the evidence, we “may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the verdict] must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118, italics added; accord, Howard, supra, 72 Cal.App.4th at p. 631 [“we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing”].) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 (Foreman)).

Under these standards, as we will explain, substantial evidence supports the jury’s findings both that Defendant was grossly negligent (i.e., Plaintiff proved Defendant’s extreme departure from the ordinary standard of care) and that Plaintiff did not assume the risk of the injury he suffered (i.e., Defendant failed to prove that it did not unreasonably increase the risks to Plaintiff over and above those inherent in wheelchair racing). Thus, as we will conclude, Defendant did not meet its burden of establishing reversible error. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate… an error that justifies reversal”].)

A. Gross Negligence

The jury answered “Yes” to special verdict question No. 1, “Was [Defendant] grossly negligent?” Defendant contends that, as a matter of law, the undisputed material facts do not support the jury’s finding of gross negligence. We disagree.

1. Law

Ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (Santa Barbara).)” ‘” ‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, ‘” amounts to ordinary negligence.'” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 358 (Willhide-Michiulis).) In contrast, to establish gross negligence, a plaintiff must prove “either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.'” (Santa Barbara, at p. 754; accord, Willhide-Michiulis, at p. 358.)

California does not recognize a cause of action for “gross negligence.” (Santa Barbara, supra, 41 Cal.4th at pp. 779-780.) Rather, as our Supreme Court explained, “the distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776.) For this reason,” ‘”‘ “[g]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” ‘” (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 358.)

2. Analysis

Defendant argues for de novo review on the basis that, according to Defendant, “the material facts are undisputed and only one inference can reasonably be drawn.” Plaintiff disagrees, arguing that many material facts were disputed, conflicting inferences exist, Defendant’s appeal “presents garden-variety challenges to a jury’s factual findings”-and, accordingly, the issues Defendant raises in this appeal are subject to substantial evidence review.

 Persuasively, Plaintiff relies on Cooper v. Kellogg (1935) 2 Cal.2d 504 (Cooper). In Cooper, the plaintiff was a passenger in the defendant’s car, and late at night the plaintiff was injured when the defendant fell asleep, crossed into oncoming traffic, and hit a car traveling in the opposite direction. (Id. at pp. 506-507.) Under the law in effect at the time of the accident, the plaintiff could recover from the defendant driver only if the defendant was grossly negligent. (Id. at pp. 505-506.) Thus, to recover, the plaintiff had to establish “whether defendant [driver] was grossly negligent in permitting himself to fall asleep”-i.e., not merely “whether he was negligent in the manner in which he controlled the car[.]” (Id. at p. 507.)

Following trial, the court found that the defendant had not operated the vehicle in a grossly negligent manner. (Cooper, supra, 2 Cal.2d at p. 507.) The plaintiff in Cooper argued on appeal that the uncontradicted evidence required a finding as a matter of law that the defendant driver was grossly negligent. (Id. at p. 508.) The uncontradicted evidence in Cooper included the defendant’s considerable activities during the 18 hours preceding the accident (from 8:00 a.m. until the accident at 2:00 a.m. the following morning[ 8]), and the defendant’s testimony that, despite the activities, he had no premonition or warning of sleepiness. (Id. at pp. 506-507.) The plaintiff could add nothing to the evidence of the accident, since he had fallen asleep. (Id. at p. 506.)

In response to the plaintiff’s argument that “the uncontradicted evidence requires a finding of gross negligence upon the part of [the defendant driver],” the Supreme Court disagreed, ruling: “Whether there has been such a lack of care as to constitute gross negligence is a question of fact for the determination of the trial court or jury, and this is so ‘even where there is no conflict in the evidence if different conclusions upon the subject can be rationally drawn therefrom.'” (Cooper, supra, 2 Cal.2d at pp. 508, 511, italics added.) Thus, even though the evidence concerning the defendant driver and his activities during the 18 hours preceding the accident was undisputed, the Supreme Court refused to rule as a matter of law, deferring instead to the trier of fact: Despite the undisputed facts, “we cannot say that the only reasonable conclusion the trial court could reach was that there was such a likelihood of his falling asleep, of which he knew or should have been aware, that his continuing to operate the car amounted to gross negligence as defined above.” (Id. at p. 511.)

The analysis and result are the same here. We cannot say that the only reasonable conclusion the jury could reach was that Defendant’s actions were not grossly negligent. Even if some facts are undisputed, viewing the evidence in a light most favorable to Plaintiff-as we must (see fn. 1, ante)-” ‘different conclusions upon the subject can be rationally drawn therefrom.'” (Cooper, supra, 2 Cal.2d at p. 511.) Thus, as in Cooper, we do not apply independent review. (Ibid.) Although Defendant does not present its arguments based on substantial evidence review, by contending that the undisputed material facts require as a matter of law a ruling that Defendant was not grossly negligent, Defendant is arguing that substantial evidence does not support the jury’s finding of gross negligence. As we explain, we are satisfied that substantial evidence supports the jury’s finding that Defendant was grossly negligent-i.e., Defendant’s behavior was an extreme departure from the ordinary standard of conduct.[ 9]

Defendant argues: “As a matter of law, [Defendant] did not fail to use even scant care, or depart in an extreme way from the ordinary standard of conduct, when it posted the turn-by-turn directions on its website and made them available at its information booth, but did not physically hand a copy to [P]laintiff and the other wheelchair racers.” Very simply, this argument fails to consider or apply the appropriate standard of review.[ 10] As we introduced at footnote 1, ante-and as Defendant invites us to do, but fails to do in its analysis-we construe all facts and inferences in a light most favorable to Plaintiff. (Mary M., supra, 54 Cal.3d at p. 214, fn. 6 [on appeal where appellant contends the material facts are undisputed]; Carrington, supra, 30 Cal.App.5th at p. 518 [on appeal from the judgment where appellant contends the record lacks substantial evidence to support the verdict]; Jorge, supra, 3 Cal.App.5th at p. 396 [on appeal from the denial of a motion for judgment notwithstanding the verdict where appellant contends the record lacks substantial evidence to support the verdict].)

According to Defendant, we should credit fully the evidence presented by Defendant-including but not limited to the testimony that the turn-by-turn directions were available to Plaintiff-and discredit the evidence from the wheelchair racers that races like the Marathon do not have either lane elimination (like that on the turn from B Street to 11th Avenue) or vehicle traffic (like that in the west lane of 11th Avenue). However, this is not the appropriate standard when viewing the evidence in a light most favorable to the prevailing party. (See pt. III., before pt. III.A., ante.) To accept Defendant’s argument would result in this appellate court usurping the jury’s responsibility for determining credibility of witnesses and truth of evidence. (City of Hope National Medical Center v. Genetech, Inc. (2008) 43 Cal.4th 375, 394; Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 393 [” ‘”‘ “it is the exclusive province of the [jury] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends” ‘”‘ “; brackets in original].) Even though a material fact may be “undisputed” as argued by Defendant, on the present record this means only that contrary evidence was not presented; it does not mean that Plaintiff agreed to the fact or that the jury-or this court on appeal-must credit the undisputed fact as a matter of law. (See Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 33 [defense summary judgment on claim of gross negligence inappropriate in part due to “credibility questions that need to be answered”].)

We consider, for example, Defendant’s actions in making the west lane of 11th Avenue unavailable for racers; in making the west lane of 11th Avenue available for vehicle traffic; in separating the wheelchair racers’ exit lane and the traffic lane with cones placed 15 feet apart; and in notifying the racers of this situation. Defendant’s president and chief economic officer testified that Defendant prepared turn-by-turn directions that communicated to racers that the west lane of 11th Avenue would not be available for racers and that Defendant made these directions available both on its website and at its information booth at the exposition.[ 11] However, Plaintiff testified that he neither saw nor knew of the turn-by-turn directions;[ 12] and the record does not contain evidence from anyone who actually saw the directions either on Defendant’s website or Defendant’s information booth. Thus, although Defendant tells us that it “is undisputed that the turn-by-turn directions were” on Defendant’s website and at Defendant’s information booth, at best the facts on which Defendant relies were uncontradicted, not undisputed; yet even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman, supra, 3 Cal.3d at p. 890).

In any event, these facts raise inferences and credibility determinations that preclude a ruling-either way-whether Defendant was grossly negligent as a matter of law.

Through the basic course map and the virtual tour video it provided to the Marathon racers, Defendant represented to Plaintiff that all lanes on 11th Avenue would be open to the racers-including specifically the west lane, which Plaintiff reasonably considered and planned to use as the exit lane for his turn from B Street to 11th Avenue. At all times, however, Defendant knew that traffic cones would be used both to direct wheelchair racers to make the left turn from B Street to 11th Avenue and to eliminate the west lane of 11th Avenue to wheelchair racers. Although Defendant prepared an “internal working document” with this specific information and provided it to “those that needed that level of detail,” Defendant did not provide it to the wheelchair racers. One hour before the start of the race and with no notice to Plaintiff-at a time when Plaintiff was already near the starting line and warming up-Defendant placed traffic cones, 15 feet apart from one another, on the outside of the left turn from B Street to 11th Avenue and down the length of 11th Avenue, blocking Plaintiff from using the exit lane he had planned based on the basic course map and virtual tour video Defendant provided.

In this regard, the following evidence from two of the five elite wheelchair racers who competed at the Marathon was uncontradicted: One racer testified that, in his 30 years’ experience in wheelchair racing, he had “never seen a lane elimination” like that on the left turn from B Street to 11th Avenue; and another racer testified that, based on his 27 years’ experience in over 140 wheelchair races, he would never expect motor vehicle traffic to be in the lane next to the wheelchair racers separated only by traffic cones placed 15 feet apart. Moreover, according to Plaintiff’s expert, Defendant was responsible for ensuring the safety of all racers, and on the morning of the race “there can be no changes” made to racecourse, because to do so “would make the race inherently more dangerous” for the wheelchair competitors. Given his speed, his racing line, and his view of the racecourse as he proceeded down the one block of B Street, Plaintiff had only two seconds to attempt to change his course from when he first learned that Defendant had closed the west lane of 11th Avenue and when he crashed into the car in the west lane of 11th Avenue. Had Plaintiff known of the lane elimination on 11th Avenue, he would have been able to negotiate the turn from B Street by “com[ing] into the corner differently.”

Like Cooper, even where (as here) there is no conflict in the evidence, because various conclusions can be drawn from the evidence based on inferences and credibility, we cannot say that the only reasonable finding the jury could reach was that Defendant’s actions were not an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to Plaintiff. Stated differently, the evidence and inferences from the evidence described in the preceding paragraphs substantiate the jury’s finding that Defendant was grossly negligent.

 Defendant’s legal authorities do not support a different analysis or result. Defendant first cites seven cases-each followed by a one sentence (or less) parenthetical describing facts or quoting language-in which intermediate appellate courts ruled that a plaintiff could not establish a lack of gross negligence as matter of law. Defendant continues by citing five cases-each followed by a one sentence (or less) parenthetical describing facts or quoting language-in which intermediate appellate courts ruled that a defendant failed to establish a lack of gross negligence as a matter of law. Defendant then concludes by stating without discussion or argument: “Contrasting the facts of the cases that find no gross negligence as a matter of law with the facts of the cases that find possible gross negligence, it is apparent that our case falls in the former category.” Defendant does not suggest the reason, and we decline to speculate as to what “is apparent” to Defendant. In short, Defendant’s one-sentence argument is neither helpful nor persuasive.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff failed to prove gross negligence.

B. Assumption of the Risk

The jury answered “Yes” to special verdict question No. 3, “Did [Defendant] do something or fail to do something that unreasonably increased the risks to [Plaintiff] over and above those inherent in marathon wheelchair racing?” Defendant contends that, as a matter of law, the undisputed material facts do not support the jury’s finding that Defendant unreasonably increased the risks inherent in marathon wheelchair racing. Stated differently, Defendant contends that, as a matter of law, Plaintiff assumed the risk of the injuries he sustained by competing as an elite wheelchair racer at the Marathon. We disagree.

1. Law

Assumption of the risk is an affirmative defense to a plaintiff’s claim of negligence. (6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 1437(2), p. 758.) Primary assumption of risk, when applicable, “completely bars the plaintiff’s recovery,” whereas secondary assumption of risk” ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.'” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068 (Cheong); see Knight v. Jewett (1992) 3 Cal.4th 296, 314-315 (Knight ).) The presence or absence of duty determines whether an application of the defense will result in a complete bar (primary assumption of the risk) or merely a determination of comparative fault (secondary assumption of the risk). (6 Witkin, supra, § 1437(2) at p. 758.)

” ‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.'” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).) Primary assumption of risk is a doctrine of limited duty which was “developed to avoid such a chilling effect.” (Ibid.) If it applies to a recreational activity like the Marathon, an event sponsor like Defendant owes the “participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Ibid. [primary assumption of the risk applied as a complete defense to bumper car passenger’s action against amusement park owner for injuries sustained when bumper cars collided].)

In Knight, supra, 3 Cal.4th 296, our Supreme Court considered the proper application of the assumption of risk doctrine in terms of duty, given the court’s adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.[ 13] The court “distinguished between (1) primary assumption of risk-‘those instances in which the assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk’-and (2) secondary assumption of risk-‘those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.'” (Cheong, supra, 16 Cal.4th at pp. 1068-1069, quoting Knight, at p. 308.)

The test for whether primary assumption of risk applies is whether the activity” ‘involv[es] an inherent risk of injury to voluntary participants… where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, supra, 55 Cal.4th at p. 1156.) “The test is objective; it ‘depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity’ rather than ‘the particular plaintiff’s subjective knowledge and awareness[.]'” (Cheong, supra, 16 Cal.4th at p. 1068, quoting Knight, supra, 3 Cal.4th at p. 313.)

In determining whether the doctrine of assumption of the risk will be a defense to a claim of negligence in a sporting activity, the trial court must consider three issues:”‘ “whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.” ‘” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1061 (Fazio); see Knight, supra, 3 Cal.4th at p. 317 [in analyzing the duty of an owner/operator of a sporting event, courts should consider “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport” (italics added)].) The first two issues, which relate to duty, are determined by the court, and the third-viz., increased risk-is a question to be decided by the trier of fact.[ 14] (Fazio, at pp. 1061-1063.)

2. Analysis

In its opening brief, Defendant explained that, at trial, in response to Defendant’s prima facie showing in support of its affirmative defense of primary assumption of the risk, “[P]laintiff had to prove that [Defendant] unreasonably increased the risk to him over and above the risks inherent in wheelchair racing on city streets.”[ 15] In this context, Defendant characterized the risk at issue as follows:

“The pertinent inherent risk was that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

In this context, Defendant described the issue on appeal to be:

 “[W]hether [Defendant], by not physically handing [P]laintiff a copy of the turn-by-turn directions, in addition to making them available on its website and at its information booth, unreasonably increased the inherent risk that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

Defendant accordingly limited its substantive argument on appeal to establishing, as a matter of law, that it did nothing to increase the risk that “[P]laintiff would attempt to turn a corner too fast, run his wheelchair off the race course, and crash” and that it was not required to undertake any affirmative efforts to decrease that risk.

In its brief, Plaintiff criticized Defendant for “tak[ing] too narrow a view of its duty here (framing this issue as simply as whether it ‘unreasonably increased the inherent risk’ that [Plaintiff] would ‘roll over or run off the race course and crash’).” Plaintiff disagreed with Defendant’s “formulation,” corrected Defendant’s statement of the inherent risk at issue, and explained his position as follows:

“The ‘precise issue,’ instead, is whether… [Defendant] increased the risks inherent in wheelchair racing in multiple ways, including: (1) by failing to indicate on the basic course map provided to all competitors that the outside lane of 11th Avenue (the necessary ‘exit lane’ for a fast-moving wheelchair) would not be available on race day (or by failing to at least direct competitors to its much-heralded turn-by-turn directions for information regarding lane closures); (2) by affirmatively representing to racers through its ‘virtual tour’ that all lanes on 11th Avenue would be available to complete that turn; (3) by removing 13 feet… of the roadway from the critical ‘exit lane’ about an hour before the race began without ever alerting at least the… wheelchair racers to this change; and (4) by [f]ailing to take other necessary precautions (for instance, with announcements, required tours, better barricades, bigger signs, or sufficient spotters) to advise racers of that particularly precarious intersection.”

In its argument, consistent with its position on gross negligence, Plaintiff emphasized that Defendant affirmatively increased the inherent risks of marathon wheelchair racing by changing the racecourse from that shown on the basic course map and the virtual tour video. According to Plaintiff, an hour before the race began with the wheelchair competitors already at the starting line, Defendant increased the risks by: eliminating the west lane of 11th Avenue, whereas the basic course map and virtual tour video did not indicate the loss of a lane; and allowing vehicle traffic in the west lane of 11th Avenue, where wheelchair racers would ordinarily complete their left turns from B Street, separating the racecourse from vehicle traffic by plastic traffic cones placed 15 feet apart. In support of his argument, Plaintiff relied on the following testimony: In his 30 years of wheelchair racing, Plaintiff had “never seen a lane elimination like that” on the turn from B Street to 11th Avenue; and based on his 27 years of wheelchair racing, another Marathon wheelchair competitor would never have expected the motor vehicle traffic that the wheelchair racers encountered on 11th Avenue-i.e., motor vehicles traveling in the lane next to the wheelchair racers’ exit lane, where competitors were racing at speeds exceeding 20 miles per her, separated only by traffic cones placed 15 feet apart.

In its reply brief, Defendant acknowledged that Plaintiff considered Defendant’s increase to the inherent risks in wheelchair racing to be the elimination of the west lane of 11th Avenue without notice, but continued with its position from its opening brief, restating it in part as follows:

 “Stated in terms of legal requirements, [Defendant] had no duty to eliminate or minimize the inherent risks of wheelchair road racing, one of which is that [P]laintiff would attempt to go too fast around a corner, run off the race course and crash. [¶] In the opening brief, we said the precise issue on appeal is whether [Defendant] unreasonably increased the inherent risk of injury by making the turn-by-turn directions available on its website and at its manned information booth, but not physically handing [P]laintiff a copy of the directions.”

Defendant again argued that it did not increase the inherent risks associated with wheelchair racing by eliminating the west lane and allowing vehicle traffic on 11th Avenue, because Defendant prepared turn-by-turn directions that a defense witness said were available on Defendant’s website and at Defendant’s information booth at the exposition.

The parties again disagree as to the standard of review. Defendant contends that, because the facts are undisputed, we are to review the judgment de novo; whereas Plaintiff contends that, because many facts-and inferences from the facts-are disputed, we are to review the judgment for substantial evidence. As before, Plaintiff has the better position.

As we explained in reviewing whether Defendant was grossly negligent (see pt. III.A.2, ante), even if some facts are undisputed, viewing the evidence in a light most favorable to Plaintiff-as we must (see fn. 1, ante)-” ‘different conclusions upon the subject can be rationally drawn therefrom’ “; and if different conclusions can be drawn, then the issue to be determined is a question of fact” ‘even where there is no conflict in the evidence.'” (Cooper, supra, 2 Cal.2d at p. 511 [uncontradicted evidence of arguably gross negligence does not require a finding of gross negligence as a matter of law].) Since the same “undisputed” evidence is at issue in reviewing whether Defendant increased the risks of injury to the wheelchair racers at the Marathon, we apply the same standard of review-i.e., substantial evidence.

The determination of whether Defendant increased the risks for wheelchair racers beyond those inherent in the sport of marathon wheelchair racing is an issue of fact.[ 16] (Fazio, supra, 233 Cal.App.4th at p. 1061; see pt. III.B.1., ante.) As we discuss, the same substantial evidence that supported the jury’s finding of gross negligence (see pt. III.A.2., ante) also supports the jury’s finding that Defendant affirmatively increased the risks associated with marathon wheelchair racing.[ 17]

Through the basic course map and the virtual tour video it provided to Plaintiff, Defendant represented that all lanes on 11th Avenue would be open to the racers-including specifically the west lane, which Plaintiff reasonably considered and planned to use as the exit lane for his left turn from B Street to 11th Avenue. One hour before the start of the race and with no notice to Plaintiff-at a time when Plaintiff was already near the starting line and warming up-Defendant placed traffic cones, 15 feet apart from one another, on the outside of the left turn from B Street to 11th Avenue and down the length of 11th Avenue, blocking Plaintiff from using the exit lane he had planned. This action increased the risks otherwise inherent in wheelchair racing, because: Neither lane elimination on the racecourse nor vehicle traffic separated by traffic cones next to the wheelchair racers’ exit lane on the racecourse is a risk inherent in marathon wheelchair racing; yet Defendant’s actions both eliminated a lane on 11th Avenue and allowed for a lane of vehicle traffic on 11th Avenue next to the exit lane for the left turn from B Street, separated only by traffic cones 15 feet apart.

Thus, the record contains substantial evidence to support the finding that Defendant increased the risks inherent in marathon wheelchair racing. In short, the record contains evidence that Defendant changed the racecourse from what Defendant showed Plaintiff on the basic course map and virtual tour video-merely one hour before the start of the race-without disclosing the change to Plaintiff or the other wheelchair racers.

Consistent with its argument as to gross negligence, Defendant contends that, with regard to assumption of the risk, although “it is the racers’ responsibility to become sufficiently familiar with the race course to successfully negotiate its features,” Plaintiff failed to “go on [Defendant’s] website, visit [Defendant’s] information booth, or consult [Defendant’s] knowledgeable personnel” where Plaintiff could have received a copy of the turn-by-turn directions. Consistent with our ruling on gross negligence (see pt. III.A.2., ante), Defendant does not cite to evidence that Plaintiff knew of such resources, let alone that those resources had turn-by-turn directions or other information which disclosed the changes to the racecourse from the information Defendant affirmatively provided him in the basic course map and virtual tour video.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff assumed the risk of the injuries he sustained by competing as a wheelchair racer at the Marathon.

IV. DISPOSITION

The judgment and the order denying Defendant’s postjudgment motions are affirmed. Plaintiff is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

  WE CONCUR: HALLER, Acting P. J., O’ROURKE, J.

———

Notes:

[ 1] Defendant argues for de novo review of the two issues (gross negligence and assumption of the risk) based on its contention that “the material facts are undisputed and only one inference can reasonably be drawn.” Defendant’s principal authority for this standard is Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (Mary M.), which instructs that, when applying this standard, the facts must be considered “in the light most favorable” to the prevailing party. (Id. at p. 214, fn. 6.) Indeed, citing this same footnote in Mary M., Defendant acknowledges that, under this standard, even “[d]isputed material facts can become undisputed by construing them in the manner most favorable to the opposing party.” Construction of the evidence in a light most favorable to the prevailing party is consistent with established standards of review following a jury verdict and the denial of a motion for judgment notwithstanding the verdict. (Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 518 (Carrington) [appeal from judgment where appellant contends the record lacks substantial evidence to support the verdict]; Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396 (Jorge) [appeal from order denying motion for judgment notwithstanding the verdict].)

[ 2] The Marathon was 26.2 miles. It began just north of downtown San Diego (on 6th Ave. near Palm St., west of Balboa Park) and finished in the south end of downtown San Diego (on 13th St. near K St., east of Petco Park).

[ 3] A copy of the virtual tour video was not available for trial. As described by Plaintiff, on one-way streets where the racers would be traveling against the flow of the traffic during the recording session, the camera was placed in the rear of the car, and when the video was prepared, the portions recorded from the rear of the car were spliced into the video in reverse.

[ 4] We describe this evidence-and the evidence in the subsequent two paragraphs of the text-since Defendant emphasizes it in Defendant’s appellate briefing. However, this is not evidence we consider when analyzing the evidence and inferences in a light most favorable to Plaintiff, as previewed at footnote 1, ante, and discussed at parts III.A.2. and III.B.2., post.

[ 5] The Marathon course diagram, which is an internal document that the course operations team prepares, indicates that the wheelchair racers were scheduled to start 5 minutes before the first group of runners.

[ 6] The reporter’s transcript contains testimony from Defendant’s president and chief executive officer that the accident happened “at a little less than a fourth of a mile” from the start line. Based on the course map and the testimony of two racers, apparently either the witness misspoke or the reporter’s transcript contains an error.

[ 7] Plaintiff testified that, had he been given advance notice that the west lane of 11th Avenue had been eliminated from the course he had seen on the virtual tour video, he would have planned for a different racing line and successfully completed the turn from B Street to 11th Avenue. The turn-by-turn directions-the existence of which was never made known to Plaintiff-described the S curve from Park Boulevard to 11th Avenue as follows: “1.6 [miles] Right (south) turn on Park Blvd[.], southbound lanes only “3.8 [miles] Right (west) turn on B St[.], whole road “3.9 [miles] Left (south, against traffic) turn on 11th Ave[.], east side of road[.]” Notably, these directions do not disclose either that the west lane of 11th Avenue would be unavailable to racers or that vehicle traffic would be traveling northbound in the west lane of 11th Avenue.

[ 8] The plaintiff and defendant left Santa Rosa around 8:00 a.m.; more than two hours later they had lunch in San Francisco; they drove to San Mateo and attended a football game; after the game, they drove to San Francisco, where they had dinner and attended the theater; they took the ferry to Sausalito around midnight; and the accident occurred as the defendant drove from Sausalito back to Santa Rosa. (Cooper, supra, 2 Cal.2d at p. 506.)

[ 9] Consistent with CACI No. 425, the court instructed the jury: “Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. [¶] A person can be grossly negligent by acting or by failing to act.”

[ 10] Defendant’s argument also implies that Plaintiff should have requested or taken advantage of the turn-by-turn directions. However, since there is no evidence suggesting that Plaintiff knew such information was available, we question how Plaintiff could have requested or taken advantage of it.

[ 11] Defendant does not contend that its turn-by-turn directions or any other evidence told Plaintiff that the west lane of 11th Avenue would be open to vehicle traffic or separated from the racecourse only by traffic cones 15 feet apart.

[ 12] In its reply, Defendant argues that Plaintiff was unaware of turn-by-turn directions because “Plaintiff chose not go on the website, visit the information booth, or consult the knowledgeable personnel.” (Italics added.) Defendant cites no evidence-and in our review of the record, we are unaware of evidence-that Plaintiff chose not to take advantage of those services. While that is one inference that can be drawn from Plaintiff’s testimony, that is not the only inference. Other reasonable inferences include that Plaintiff failed to take advantage of those services either: because he did not know they were available; or, since Plaintiff had never seen a lane eliminated like on 11th Avenue and elite wheelchair racers do not expect motor vehicle traffic to be separated from the competitors by traffic cones, he would not think to ask about such services. As Defendant acknowledges, because multiple inferences can be drawn from Plaintiff’s failure to take advantage of those services, such failure is not an “undisputed fact” for purposes of our appellate review. (Mary M., supra, 54 Cal.3d at p. 213.)

[ 13] Knight was a plurality opinion, but a unanimous court later “restated the basic principles of Knight‘s lead opinion as the controlling law.” (Cheong, supra, 16 Cal.4th at p. 1067, citing Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537-538.)

[ 14] We recognize-as we did in Fazio, supra, 233 Cal.App.4th at page 1061-that Court of Appeal decisions conflict as to whether the issue of increased risk is a legal question for the court or a factual question for the jury. (Id. at pp. 1061-1063.) We have no reason to reconsider our ruling and analysis in Fazio, and Defendant does not suggest otherwise. (See fn. 16, post.)

[ 15] In this regard, the trial court instructed the jury as follows, consistent with CACI No. 472, entitled “Primary Assumption of Risk-Exception to Nonliability-… Event Sponsors”: “[Plaintiff] claims he was harmed while participating in a wheelchair race as part of [Defendant’s] Rock and Roll Marathon. To establish this claim, [Plaintiff] must prove all of the following: [¶] 1. That [Defendant] was the operator of the Rock and Roll Marathon; [¶] 2. That [Defendant] unreasonably increased the risks to [Plaintiff] over and above those inherent in the sport of wheelchair marathon racing[; ¶] 3. That [Plaintiff] was harmed; and [¶] 4. That [Defendant’s] conduct was a substantial factor in causing [Plaintiff’s] harm.” (Italics added.)

[ 16] As we introduced ante, the other two issues associated with the potential application of the doctrine of assumption of the risk-whether marathon wheelchair racing is “an active sport” and “the risks inherent in that sport”-are legal issues that are reviewed de novo. (Fazio, supra, 233 Cal.App.4th at p. 1061.) Although Defendant does not directly raise either of those issues in its appeal, we have no difficulty concluding that: Marathon wheelchair is an active sport; and turning a corner at too high a speed and running off the racecourse is a risk inherent in marathon wheelchair racing. In its reply brief, Defendant suggests that we apply a de novo standard of review because “this appeal involves a mixed question of law and fact.” We disagree that this appeal involves a mixed question. Each of the three issues under Fazio is decided and reviewed separately: two are issues of law, and one-i.e., whether the defendant increased the risks inherent in the sport-is an issue of fact. (Fazio, supra, 233 Cal.App.4th at pp. 1061-1063.) This appeal involves only the last issue, and as an issue of fact, it is reviewed on appeal for substantial evidence.

[ 17] In its reply brief, for the first time, Defendant “note[d]” that, in Fazio, supra, 233 Cal.App.4th 1053, “this court held that, in the summary judgment context, if there are disputed material facts, the jury will decide whether the defendant increased the inherent risk.” We agree that, if there are disputed material facts, then the jury must decide the factual dispute; and that is what happened in this case. Defendant then argues “that, after trial, if the case goes up on appeal, the appellate court is bound by the jury’s resolution of the factual disputes, but not by the jury’s determination that the defendant increased the inherent risk,” suggesting instead that “[t]he appellate court, based on the now-established facts, decides de novo whether the defendant increased the inherent risk.” Not only does Defendant fail to provide authority for its suggestion, in the context of the present appeal, the suggestion makes no sense. Here, the jury resolved the ultimate factual dispute-i.e., whether the defendant increased the inherent risk: “[Defendant] d[id] something or fail[ed] to do something that unreasonably increased the risks to [Plaintiff] over and above those inherent in marathon wheelchair racing.” As we ruled in Fazio: “[R]esolving the question of whether [the defendant] increased the risk of [the harm the plaintiff suffered] is properly decided by the trier of fact. This question… ‘requires application of the governing standard of care (the duty not to increase the [inherent risks]) to the facts of this particular case-the traditional role of the trier of fact.'” (Fazio, supra, 233 Cal.App.4th at pp. 1062-1063; italics and second and third brackets added.) For these reasons, we disagree with Defendant’s reply argument in support of de novo review.


Ruts left in slope by snowmaking ATV did not rise to the level of recklessness or gross negligence in the Pennsylvania skiing lawsuit.

Great review of gross negligence and recklessness law under Pennsylvania law in this decision.

Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Patrick Kibler and Kathryn Kibler, Husband and Wife

Defendant: Blue Knob Recreation, Inc., /d/b/a Blue Knob All Seasons Resort, and Blue Knob Resort, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release

Holding: For Defendant

Year: 2017

Summary

Ruts left on the slope are an inherent risk of skiing and do not rise to gross negligence in Pennsylvania. Plaintiff assumed the risk of his injuries both under the Pennsylvania Skier Safety Act and the release he signed for his pass.

Facts

On March 21, 2014, [appellant] applied for a season ski pass for the 2014-2015 ski season at Blue Knob Ski Resort. [Appellant] signed and dated the season pass/application agreement, which contained [184 A.3d 977] information and guidelines about the Blue Knob season pass.

On December 21, 2014 at 9:00 a.m., [appellant] arrived at Blue Knob to ski with friends. Prior to arriving at the resort, [appellant] learned that five slopes were open to ski. [Appellant] eventually would ski on two of these five open slopes. After skiing down a slope identified as “Lower Mambo,” [appellant] stopped to look for his skiing companions, who were snowboarding on another slope. In an attempt to rejoin them without walking back up the slope, [appellant] intended to ski toward the middle of “Lower Mambo Valley” in order to reach a ski lift. While traversing this area, [appellant] ran over “trenches” he avers were four-to-six inches deep and six-to-eight inches wide, which extended halfway across the ski slope. Defendants’ employees identified the trenches as being caused by an all-terrain-vehicle operated by a resort employee. [Appellant] fell when encountering these trenches, causing him to fracture his left tibia and fibula.

Plaintiff sued for his injuries, and the trial court dismissed his claim on a motion for summary judgment. This was the plaintiff’s appeal.

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

The court first looked at the issues in this appeal from the standpoint of the Pennsylvania Skier Safety Act. The act states that skiers voluntarily assume the risk of the sport. Unlike most other skier safety acts, the Pennsylvania Skier Safety Act does not list the risks the skier assumes. That is left up to the court in each case. This leads to more litigation as each plaintiff is free to argue that the risk that caused his accident is not an inherent risk of skiing and not covered under the Pennsylvania Skier Safety Act.

When reviewing whether a risk is inherent and part of the sport of skiing the Pennsylvania Supreme Court created standards to assist courts in making that decision.

First, this Court must determine whether [appellant] was engaged in the sport of downhill skiing at the time of [his] injury. If that answer is affirmative, we must then determine whether the risk [encountered] is one of the “inherent risks” of downhill skiing, which [appellant] must be deemed to have assumed under the Act. If so, then summary judgment was appropriate because, as a matter of law, [appellant] cannot recover for [his] injuries.

Inherent risks of skiing in Pennsylvania are those “that are ‘common, frequent, or expected’ when one is engaged in a dangerous activity, and against which the defendant owes no duty to protect.”

The court found the plaintiff was engaged in downhill skiing. Downhill skiing has a broad definition under Pennsylvania law.

Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.

To determine if wheel ruts in the slope were a risk in skiing the court turned to a New York decision.

Appellate Division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants’ motion for summary judgment.

However, the court never found or determined if the Pennsylvania Skier Safety Act prevented the claim. The court then turned to the release the plaintiff signed when he paid for his season pass.

The plaintiff argued the release should be void.

Specifically, appellant avers that the release in question is “not a valid exculpatory release” due to the fact that the release is ambiguous, the release is “without print of a size and boldness that draws the attention of an ordinary person,” and there is no evidence that appellants actually read the release.

The court then looked for the requirements under Pennsylvania law for a release to be valid.

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. [[O]ur supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Since the release was between the ski area and a skier, it was a private contract and did not contravene public policy. The court then looked at whether the release was enforceable. That standard required the court to:

…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.”

To be valid in Pennsylvania a release must spell out with particularity the intentions of the parties.

…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.

The plaintiff argued the release should be void because:

Appellants first aver that the language of the release was ambiguous. Specifically, appellants allege that the release failed to “clearly and unequivocally intend for the defendant[s] to be relieved from liability, using language understandable to an ordinary and knowledgeable person so participants know what they have contracted away.” Appellants then allege that the release failed include any reference to the risk encountered by appellant. Appellants specifically argue that “the risk [appellant] encountered, i.e. , deep and wide frozen trenches in the middle of a beginner’s slope, are not stated because it is nonsensical to contend such a serious hazard is inherent to the sport.

The plaintiff then argued the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person.” The court referred to Pennsylvania Uniform Code, which set froth requirements for contracts and defines what a conspicuous term is:

(i) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size.

(ii) Language in the body of a record or display in larger type than the surrounding text, in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

The court found the release valid because exculpatory language was preceded by a heading that was written in all caps equal to the size of the text in the exculpatory paragraph. The heading also contained two exclamation points to draw attention to it.

The plaintiff then argued he did not read the release. (That’s his problem no one else’s!) “Our cases provide that “failure to read an agreement before signing it does not render the agreement either invalid or unenforceable.”

The court then reviewed the gross negligence, and reckless conduct claims the plaintiff made. A claim that the actions of the defendant were reckless would not be barred by a release. The court then reviewed the definition of gross negligence.

The general consensus finds [that] gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” (relying in part on bailment cases and in part on the definition of “gross negligence” as applied to the [Mental Health Procedures Act[9] ] ). Gross negligence may be deemed to be a lack of slight diligence or care compromising a conscious, voluntary act or omission in “reckless disregard” of a legal duty and the consequences to another party. While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.

The court then identified the definition of recklessness.

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.

Then the court reviewed recklessness as defined by the Restatement (Second) of Torts:

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 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.

Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:

Reckless misconduct differs from negligence in several important particulars. If differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that 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 difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Finally, the court summed up the definitions as:

Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, and indifference whether or not wrong is done, and an indifference to the rights of others

Since the plaintiff could not prove any intentional conduct on the part of the defendant, the actions of the defendant were not reckless or gross negligence.

[Appellants] aver that Defendants’ snow-making crew created the “trenches” by operating an all-terrain-vehicle across part of the ski-slope, rather than entirely along the sides of the slopes.[Footnote 7] While apparently against normal maintenance policy and procedures and arguably negligent, we do not believe these actions amount to gross negligence or recklessness. Defendants’ employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that— although possibly dangerous— was not inherently unexpected upon a ski slope. We view such conduct to be a matter of “… mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” rather than recklessness.

The summary judgement of the trial court dismissing the plaintiff’s claims was upheld.

So Now What?

Anytime you do anything outside of the scope of operations of your competitors you set yourself up for a claim. Using ATV’s on the ski slope rather than a snow machine created that opportunity here for the plaintiff.

The ATV was a vehicle that could be used by the defendant year round and probably saved them money. However, the amount of time their employees spent defendant this claim and responding to the allegations I would guess wiped out that savings.

If you insist and being different, which is necessary for any industry to grow and change, justify the why with thought and reasons that are more than money. In this case, simply grooming after the ATV had passed would have solved the problem.

What do you think? Leave a comment.

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Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)

Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)

184 A.3d 974

Patrick Kibler and Kathryn Kibler, Husband and Wife, Appellants

v.

Blue Knob Recreation, Inc., a Pennsylvania Corporation, t/d/b/a Blue Knob All Seasons Resort, and Blue Knob Resort, Inc., a Pennsylvania Corporation

No. 903 WDA 2017

Superior Court of Pennsylvania

April 19, 2018

Argued November 29, 2017

[184 A.3d 975] [Copyrighted Material Omitted]

[184 A.3d 976]

Appeal from the Order, May 24, 2017, in the Court of Common Pleas of Bedford County, Civil Division at No. 2015-183. TRAVIS W. LIVENGOOD, J.

Douglas V. Stoehr, Altoona, for appellants.

Anthony W. Hinkle, Blue Bell, for appellees.

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.

OPINION

FORD ELLIOTT, P.J.E.

Patrick and Kathryn Kibler (collectively “appellants”[1] ) appeal from the May 24, 2017 order of the Court of Common Pleas of Bedford County granting Blue Knob Recreation, Inc. and Blue Knob Resort, Inc.’s (hereinafter, collectively “defendants”) motion for summary judgment. After careful review, we affirm.

The trial court provided the following synopsis of the facts:

On March 21, 2014, [appellant] applied for a season ski pass for the 2014-2015 ski season at Blue Knob Ski Resort. [Appellant] signed and dated the season pass/application agreement, which contained [184 A.3d 977] information and guidelines about the Blue Knob season pass. The bottom half of said document contains the following exculpatory language:

PLEASE READ THE FOLLOWING

BEFORE SIGNING!!

Snowboarding, skiing and other snow related activities, like many other sports, contain inherent risks including, but not limited to, the risk of personal injury, death or property damage, which may be caused by: variation in terrain or weather conditions, surface or subsurface, snow, ice, bare spots, thin cover, moguls, ruts, bumps, forest growth, debris, other persons using the facilities, branches, trees, roots, stumps, rocks, and other natural or man made objects that are incidental to the provision or maintenance of the facility. For the use of Blue Knob Ski Area, the holder assumes all risks of injury and releases Blue Knob Recreation from all liability THEREFORE: Not withstanding the foregoing, if I sue Blue Knob Recreation ET AL I agree that I will only sue it, whether on my own behalf or on behalf of a family member, in the Court of Common Pleas of Bedford County or in the United States District Court for the District of Pittsburgh, Pennsylvania and further agree that any and all disputes which might arise between Blue Knob Recreation ET AL and myself shall be litigated exclusively in one of said courts.

See Blue Knob All Seasons Resort Information/Guidelines.

On December 21, 2014 at 9:00 a.m., [appellant] arrived at Blue Knob to ski with friends. Prior to arriving at the resort, [appellant] learned that five slopes were open to ski. [Appellant] eventually would ski on two of these five open slopes. After skiing down a slope identified as “Lower Mambo,” [appellant] stopped to look for his skiing companions, who were snowboarding on another slope. In an attempt to rejoin them without walking back up the slope, [appellant] intended to ski toward the middle of “Lower Mambo Valley” in order to reach a ski lift. While traversing this area, [appellant] ran over “trenches” he avers were four-to-six inches deep and six-to-eight inches wide, which extended halfway across the ski slope. Defendants’ employees identified the trenches as being caused by an all-terrain-vehicle operated by a resort employee. [Appellant] fell when encountering these trenches, causing him to fracture his left tibia and fibula.

Trial court opinion, 5/23/17 at 2-3.

On February 15, 2015, appellants filed a civil complaint with the trial court sounding in negligence. Following discovery, defendants filed a motion for summary judgment with an accompanying memorandum of law on January 23, 2017. Appellants filed a motion for summary judgment on March 17, 2017. Oral arguments were held before the trial court on April 18, 2017. On May 24, 2017, the trial court granted defendants’ motion for summary judgment, dismissing appellants’ complaint with prejudice, and denied appellants’ motion for summary judgment.

On June 16, 2017, appellants filed a timely notice of appeal with this court. The trial court ordered appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellants complied on July 18, 2017. The trial court filed an opinion on August 10, 2017, pursuant to Pa.R.A.P. 1925(a) in which it incorporated the content of its May 24, 2017 order and opinion granting defendants’ motion for summary judgment.

Appellants raise the following issues for our review: [184 A.3d 978] A. Was the hazard encountered by [appellant] inherent to the dangers of downhill skiing, when [defendants’] Director of Maintenance testified that the hazard was out of the ordinary, not common, and [appellant] should not have expected to encounter the hazard?

B. Is the Blue Knob All Seasons Resort 2014-2015 Season Pass Holder Information/Guidelines document a valid exculpatory release, where the top half of the document only discusses the requirements to be a season pass holder, and the lower half is ambiguous, the word “releases” is located 75% down the page, lacks conspicuity, without print of a size and boldness that draws the attention of an ordinary person, and where no evidence exists that [appellant] read this document?

C. Is a claim for injuries caused by the grossly negligent and/or reckless acts of a ski resort barred by an alleged exculpatory sentence in Blue Knob’s season pass?

D. Did [appellant] voluntarily assume the risk of injury when he encountered a hazard at [defendants’] resort for which he was unaware, and for which [defendants’] Director of Maintenance testified that [appellant] had no reason to anticipate or know of the hazard’s existence? Appellant’s brief at 4-5.[2]

In reviewing an appeal from the trial court’s granting of a motion for summary judgment, we are governed by the following standard of review:

[O]ur standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Our scope of review is plenary. In reviewing a trial court’s grant of summary judgment, we apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.

* * *

Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions.

Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa.Super. 2012) (internal citations omitted).

Rule of Civil Procedure 1035 governs motions for summary judgment and provides, in relevant part, as follows:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of [184 A.3d 979] action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2. This Court has explained the application of this rule as follows:

Motions for summary judgment necessarily and directly implicate the plaintiff’s proof of the elements of a cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Petrina, 46 A.3d at 798. Criswell v. Atlantic Richfield Co., 115 A.3d 906, 909-910 (Pa.Super. 2015).

Voluntary Assumption of the Risk

Appellants’ first and fourth issues on appeal address the voluntary assumption of the risk associated with downhill skiing. The General Assembly directly addressed this issue when it passed the Pennsylvania Skier’s Responsibility Act (hereinafter, “the Act”). The Act provides, in relevant part,

(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 the risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).[3]

42 Pa.C.S.A. § 7102(c).

In light of the Act, our supreme court established the following standard when reviewing grants of summary judgment in cases involving downhill skiing:

First, this Court must determine whether [appellant] was engaged in the sport of downhill skiing at the time of [his] injury. If that answer is affirmative, we must then determine whether the risk [encountered] is one of the “inherent risks” of downhill skiing, which [appellant] must be deemed to have assumed under the Act. If so, then summary [184 A.3d 980] judgment was appropriate because, as a matter of law, [appellant] cannot recover for [his] injuries.

Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (2000). In the context of downhill skiing, our supreme court stated that both common law assumption of the risk doctrine and the court’s decision in Hughes “direct that inherent risks are those that are ‘common, frequent, or expected’ when one is engaged in a dangerous activity, and against which the defendant owes no duty to protect.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1187 n.14 (2010).

In the instant appeal, it is beyond dispute that appellant was engaged in the sport of downhill skiing at the time of his injury. Indeed, as noted by the Hughes court,

Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.

Hughes, 762 A.2d at 344. Therefore, our paramount inquiry is whether encountering wheel ruts on a ski slope created by an ATV operated by an employee of defendants is an inherent risk to downhill skiing.

Appellants make the argument that operating an ATV up the middle of a ski slope is not an inherent aspect of the sport, and should therefore not be considered an inherent risk as contemplated by the Act. (See appellants’ brief at 32.) Appellants specifically cite the deposition testimony of Craig Taylor, defendants’ director of maintenance, in which Mr. Taylor stated that it would not be common or expected by a skier to encounter wheel ruts made by an ATV on the ski slope. (See notes of testimony, 10/21/15 at 28.) Defendants aver that the cause of the alleged condition is not relevant to whether the condition itself, in this case wheel ruts left by operating an ATV up the middle of a ski slope, constitutes an inherent risk associated with downhill skiing.

As noted by the Chepkevich court, “Pennsylvania’s Act is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing,” especially when compared to other states in which skiing constitutes a “significant industry.” Chepkevich, 2 A.3d at 1188 n.15. Of the states referenced by the Chepkevich court, the most instructive is New York.

In Schorpp v. Oak Mountain, LLC, 143 A.D.3d 1136, 39 N.Y.S.3d 296 (N.Y.App.Div. 2016), the New York Supreme Court, Appellate Division[4] reversed the trial court’s denial of summary judgment in a negligence cause of action. Id. at 1137, 39 N.Y.S.3d 296. The plaintiff in this case “skied into a ‘depression’ that was filled with snow. The skis got caught in the depression causing [the plaintiff] to flip over and fall out of his skis.” Id. The appellate court held that under New York’s assumption of the risk doctrine as it pertains to downhill skiing, “an individual ‘assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain.’ ” Id. , quoting Ruepp v. West Experience, 272 A.D.2d 673, 674, 706 N.Y.S.2d 787 (N.Y.App.Div. 2000) (emphasis added). Unlike its Pennsylvania counterpart, the [184 A.3d 981] New York State Legislature specifically identified ruts as an inherent risk of downhill skiing. N.Y. General Obligations Law § 18-101.

Given that our cases do not directly address an injury incurred while engaged in downhill skiing caused by wheel ruts in the terrain on the slope, we find the New York statute and case law to be the most instructive in the instant appeal. Moreover, the language of the release signed by appellant, which we further discuss infra , is nearly identical to the language of the New York statute.[5] We agree with the holding of the Appellate Division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants’ motion for summary judgment.

Validity of Release[6]

Appellants’ second issue pertains to the release appellant signed when he purchased his season pass. Specifically, appellant avers that the release in question is “not a valid exculpatory release” due to the fact that the release is ambiguous, the release is “without print of a size and boldness that draws the attention of an ordinary person,” and there is no evidence that appellant actually read the release. (Appellants’ brief at 33.)

When considering the validity of exculpatory releases, we are governed by the following standard:

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. Princeton Sportswear Corp. v. H & M Associates, 510 Pa. 189, 507 A.2d 339 (1986); Employers Liability Assurance Corp. v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966). In Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963), [our supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract [184 A.3d 982] language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause. Dilks, 192 A.2d at 687.

Topp Copy Products, Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (1993), cited by Chepkevich, 2 A.3d at 1189.

In the context of exculpatory releases used for downhill skiing, we find the rationale behind the Chepkevich court’s decision to be highly instructive to the instant appeal.[7]

As we have stated, downhill skiing … is a voluntary and hazardous activity, and that fact is acknowledged in the Act as discussed above. Moreover, an exculpatory agreement conditioning the use of a commercial facility for such activities has not been construed as a typical contract of adhesion. The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity. The signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable. Moreover, the absence of a definition or illustration of negligence does not render this Release an invalid contract of adhesion; that factor simply does not relate to the concerns implicated by adhesion contracts.

Chepkevich, 2 A.3d at 1191 (internal citations omitted).

Facial Validity

Similar to the Chepkevich court, we must first look to the facial validity of the release. In Chepkevich, our supreme court found that the release signed by the plaintiff did not “contravene any policy of the law. Indeed, the clear policy of this Commonwealth, as articulated by the Act, is to encourage the sport [of downhill skiing] and place the risks of skiing squarely on the skier.” Id. , citing 42 Pa.C.S.A. § 7102(c)(2). The court also stated that, “Pennsylvania courts have upheld similar releases respecting skiing and other inherently dangerous sporting activities.” Id. (collecting cases). Finally, our supreme court held that the release the plaintiff signed was a contract between Hidden Valley and the plaintiff, “relating to their private affairs, specifically [the plaintiff’s] voluntary use of the resort’s facilities.” Id.

[184 A.3d 983] Our discussion in the instant appeal is comparable to the analysis employed by the Chepkevich court. Here, the release signed by appellant does not contravene any policy of the law. Similar to the release used by defendant Hidden Valley in Chepkevich , the release before us relates to the private affairs of appellant and defendants— namely, appellant’s voluntary use of defendants’ facilities. Accordingly, we find that the release signed by appellant is facially valid.

Enforceability

Similar to the Chepkevich court, we must now look to the release’s enforceability. “[T]he Topp Copy/Employers Liability standard requires us to construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.” Id. , citing Topp Copy, 626 A.2d at 99.

In the instant appeal, appellants aver that the release was ambiguous, lacked conspicuity, and “was without print of a size and boldness that draws the attention of an ordinary person.” (Appellant’s brief at 33.) Appellants further aver that there is no evidence that appellant read the release before signing it. (Id. ) We shall address each of these claims individually.

Appellants first aver that the language of the release was ambiguous. Specifically, appellants allege that the release failed to “clearly and unequivocally intend for the defendant[s] to be relieved from liability, using language understandable to an ordinary and knowledgeable person so participants know what they have contracted away.” (Id. at 39.) Appellants then allege that the release failed include any reference to the risk encountered by appellant. (Id. at 43.) Appellants specifically argue that “the risk [appellant] encountered, i.e. , deep and wide frozen trenches in the middle of a beginner’s slope, are not stated because it is nonsensical to contend such a serious hazard is inherent to the sport.” (Id. ) This argument misses the mark. To the contrary, as noted supra , one of the inherent risks explicitly referenced in the release is the presence of ruts on the ski slope. Merriam-Webster defines “rut” as “a track worn by a wheel or by habitual passage.” Merriam-Webster.com.Merriam-Webster, n.d. Web. 2 Jan. 2018. Roget’s Thesaurus identifies “trench” as a synonym of “rut.” Thesaurus.com.Roget’s 21st Century Thesaurus, Third Edition, n.d. Web. 2 Jan. 2018. We therefore find that defendants’ release was not ambiguous, and that it explicitly referenced the risk encountered by appellant.

We now turn to appellants’ claim that the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person.” (Appellants’ brief at 33.) As noted above, the release appellant signed contained information regarding his season ski pass. Following the ski pass information, in a paragraph labeled “PLEASE READ THE FOLLOWING BEFORE SIGNING!![,]” defendants’ release contained the exculpatory language before us for review. (Id. at 34.)

The Pennsylvania Uniform Commercial Code[8] defines “conspicuous” as “so written, [184 A.3d 984] displayed, or presented that a reasonable person against which it is to operate ought to have noticed it.” 13 Pa.C.S.A. § 1201(b)(10). The Code specifically states that a conspicuous term includes the following:

(i) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size.

(ii) Language in the body of a record or display in larger type than the surrounding text, in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

Id. at § 1201(b)(10)(i-ii) (emphasis added).

Here, the release issued by defendants and signed by appellant meets the definition of conspicuous as set forth by the Pennsylvania Uniform Commercial Code. The exculpatory language of the release is preceded by a heading that is written in all capital letters in a size of text equal to the exculpatory language of the release. The heading also contains two exclamation points that call attention to the language of the heading, pursuant to the Code. Accordingly, we find that appellants’ argument that the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person” is without merit, as defendants’ release is conspicuous under the Pennsylvania Uniform Commercial Code.

Finally, we address appellants’ averment that that there is no evidence that appellant read the release before signing it. Our cases provide that “failure to read an agreement before signing it does not render the agreement either invalid or unenforceable.” Toro v. Fitness International LLC, 150 A.3d 968, 975 (Pa.Super. 2016), citing Hinkal v. Pardoe, 133 A.3d 738, 743 (Pa.Super. 2016), appeal denied , 636 Pa. 650, 141 A.3d 481 (Pa. 2016). See alsoSchillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D. Pa. 1990) (“The law in Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract first”). In the instant appeal, appellant was not excused of his duty to read the Release before signing it. Therefore, appellant’s argument that there is no evidence that he read the release before signing is without merit.

Gross Negligence and Reckless Conduct

Finally, appellant avers that the release does not protect defendants from liability for acts of gross negligence and/or reckless conduct. Our supreme court has held that exculpatory releases of reckless behavior are contrary to public policy, “as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.” Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1203 (2012), citing Hall v. Amica Mut. Ins. Co., 538 Pa. 337, 648 A.2d 755, 760 (1994). Therefore, our inquiry centers on whether the conduct alleged by appellants— operating an ATV on a ski slope and creating wheel ruts on the slope— constituted gross negligence and/or reckless conduct.

This court has observed the following pertaining to gross negligence:

In Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695 (Pa.Super. 2000), appeal denied, 567 Pa. 715, 785 A.2d 90 (Pa. 2001), we indicated that when courts have considered the concept of “gross negligence” in various civil contexts, [184 A.3d 985] they have concluded uniformly that there is a substantive difference between “ordinary negligence” and “gross negligence.” Id. at 703. “The general consensus finds [that] gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” Id. at 704 (relying in part on bailment cases and in part on the definition of “gross negligence” as applied to the [Mental Health Procedures Act[9] ] ). Gross negligence may be deemed to be a lack of slight diligence or care compromising a conscious, voluntary act or omission in “reckless disregard” of a legal duty and the consequences to another party. Id. at 704-705 (citing Black’s Law Dictionary 1057 (7th ed. 1999) ). In re Scheidmantel, 868 A.2d 464, 485-486 (Pa.Super. 2005). While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.

Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525-526 (Pa.Super. 2003) (en banc ), quoting Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159, 1164-1165 (1997).

The Tayar court provided the following comparison of recklessness with ordinary negligence:

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. In Fitsko v. Gaughenbaugh, 363 Pa. 132, 69 A.2d 76 (1949), [our supreme court] cited with approval the Restatement ( [First] ) of Torts[10] definition of “reckless disregard” and its explanation of the distinction between ordinary negligence and recklessness. Specifically, the Restatement (Second) of Torts defines “reckless disregard” as follows:

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 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.

Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” Id. , cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:

Reckless misconduct differs from negligence in several important particulars. If differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct [184 A.3d 986] 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 difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Id. , cmt. g; see also AMJUR Negligence § 274 (“Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, and indifference whether or not wrong is done, and an indifference to the rights of others”). Our criminal laws similarly distinguish recklessness and negligence on the basis of the consciousness of the action or inaction. See 18 Pa.C.S.A. § 302(b)(3), (4) (providing that a person acts recklessly when he “consciously disregards a substantial and unjustifiable risk,” while a person acts negligently when he “should be aware of a substantial and unjustifiable risk”).

This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. Tayar, 47 A.3d at 1200-1201. ` Here, we find as a matter of law, that the record does not reflect gross negligence or reckless conduct on the part of defendants. Specifically, we agree with the trial court’s following conclusion:

[Appellants] aver that Defendants’ snow-making crew created the “trenches” by operating an all-terrain-vehicle across part of the ski-slope, rather than entirely along the sides of the slopes.[Footnote 7] While apparently against normal maintenance policy and procedures and arguably negligent, we do not believe these actions amount to gross negligence or recklessness. Defendants’ employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that— although possibly dangerous— was not inherently unexpected upon a ski slope. We view such conduct to be a matter of “… mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” rather than recklessness.

[Footnote 7] Defendants seemingly concede the cause of the “trenches” and Defendants’ employees conceded that such actions were improper in normal slope maintenance process.

Trial court opinion, 5/24/17 at 8-9.

Accordingly, we find that defendants did not engage in grossly negligent or reckless conduct, and that the Release provided by defendants and signed by appellant is enforceable.

Order affirmed.

Bowes, J. joins this Opinion.

Stabile, J. concurs in the result.

———

Notes:

[1] For clarity, we will refer to Mr. Kibler as “appellant” throughout this memorandum.

[2] Appellants’ four issues address two overarching issues: voluntary assumption of risk and the validity of the release attached to the season pass provided by defendants. Accordingly, for the purposes of our review, we shall address issues A and D together and issues B and C together.

[3] Subsections (a) and (a.1) address contributory negligence and joint and several liability.

[4] This court is the intermediate court of appeals in New York.

[5] The New York statute provides, in relevant part:

§ 18-101. Legislative purpose

The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state ….

N.Y. General Obligations Law § 18-101.

[6] As noted by Justice Baer in his concurring opinion in Chepkevich , a review of the release issued by defendants and signed by appellant is not wholly necessary. Chepkevich, 2 A.3d at 1198 (Baer, J., concurring). The majority stated that, “consideration of alternative holdings is subject to prudential concerns, and we believe there are prudential concerns to consider the Release here.” Id. at 1188 n.16. We will follow the lead of the majority and analyze both issues as they have both been briefed and argued before this court.

[7] The release before the Chepkevich court was printed on an 8½ by 11-inch sheet of paper entitled “RELEASE FROM LIABILITY” and contained the following language:

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 variations in snow and terrain, ice and icy conditions, moguls, rocks, debris (above and below the surface), bare spots, lift towers, poles, snowmaking equipment (including pipes, hydrants, and component parts), fences and the absence of fences and other natural and manmade objects, visible or hidden, as well as collisions with equipment, obstacles or other skiers …. All the risks of skiing and boarding present the risk of serious or fatal injury. By accepting this Season Pass I agree to accept all these risks and agree not to sue Hidden Valley Resort or their employees if injured while using their facilities regardless of any negligence on their part. Chepkevich, 2 A.3d at 1176.

[8] As in prior cases, we note that the Uniform Commercial Code is applicable to the sale of goods, while this case pertains to the sale of services; “nevertheless, we find the UCC’s warrant disclaimer provision in Article 2, and its interpreting caselaw, provides guidance in the instant case.” Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266, 1274 n.12 (Pa.Super. 2006).

[9] 50 P.S. § § 7101-7503.

[10] The Restatement (Second) of Torts was published in 1965.

———


Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)

Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)

Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in Her Own Right, Appellant

v.

Philadelphia Triathlon, LLC, Appellee

No. 17 EAP 2017

Supreme Court of Pennsylvania

June 18, 2019

Argued: May 15, 2018

Appeal from the Judgment of Superior Court entered on November 15, 2016 at No. 3049 EDA 2013 affirming the Order entered on September 30, 2013 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 1417 April Term, 2012. Jacqueline F. Allen, Judge

Craig A. Falcone, Esq., Sacchetta & Falcone, for Appellant Michele Valentino, as Admin. of the Estate of Derek Valentino, etc.

Barbara Axelrod, Esq., The Beasley Firm, L.L.C., for Appellant Amicus Curiae Pennsylvania Association for Justice.

Heather M. Eichenbaum, Esq., Spector Gadon & Rosen, P.C., for Appellee Philadelphia Triathlon, LLC.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

ORDER

PER CURIAM

AND NOW, this 18th day of June, 2019, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.

Justice Wecht did not participate in the consideration or decision of this matter.

OPINION IN SUPPORT OF AFFIRMANCE

BAER, JUSTICE.

This Court granted allocatur to determine whether an express assumption of the risk agreement executed by triathlon participant Derek Valentino (“Decedent”) serves as a defense to a wrongful death claim commenced against the Philadelphia Triathlon, LLC (“Triathlon”) by Decedent’s heir (“Appellant”), who was not a signatory to the agreement.[1] The Superior Court held that Decedent’s express assumption of the risks inherent in participation in the sporting event eliminated Triathlon’s duty of care, thereby rendering Triathlon’s conduct non-tortious. Absent tortious activity, the Superior Court concluded that the wrongful death claim brought by Decedent’s heir could not succeed as a matter of law because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Accordingly, the Superior Court affirmed the trial court’s order granting summary judgment in favor of Triathlon. For the reasons set forth herein, we would affirm the judgment of the Superior Court and adopt its astute legal analysis.

Preliminarily and as explained in more detail infra, we respectfully note that the Opinions in Support of Reversal (both hereinafter collectively referred to as “OISR”) ignore the issue for which we granted allocatur and, instead, attempt to reverse the judgment of the Superior Court on grounds not encompassed by this appeal. Specifically, the OISR would sua sponte hold that express assumption of the risk agreements are void and unenforceable in violation of public policy in cases involving claims brought pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. The OISR reaches this conclusion notwithstanding that no party to this appeal challenges the validity of the agreement on public policy grounds or otherwise. We decline to engage in this judicial overreaching and proceed to address the merits of the issue before us.

We begin with a brief recitation of the facts. In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.

The executed Agreement stated that Decedent understood “the physical and mental rigors associated with triathlon,” and “that running, bicycling, [and] swimming

… are inherently dangerous and represent an extreme test of a person’s physical and mental limits.” Appellee’s Motion for Summary Judgment Ex. G, dated Aug. 5, 2013. The Agreement further acknowledged Decedent’s understanding that “participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis and death … and other undefined harm or damage which may not be readily foreseeable[.]” Id. The Agreement provided that Decedent was aware “that these Risks may be caused in whole or in part by [his] own actions or inactions, the actions or inactions of others participating in the Event, or the acts, inaction or negligence of [the Triathlon].” Id.

Germane to this appeal, the Agreement stated that Decedent “expressly assume[d] all such Risks and responsibility for any damages, liabilities, losses or expenses” resulting from his participation in the event. Id. (emphasis added). The Agreement also included a provision stating that Decedent further agreed that if he or anyone on his behalf “makes a claim of Liability against any of the Released Parties, [Decedent] will indemnify, defend and hold harmless each of the Released Parties from any such Liability which any [sic] may be incurred as the result of such claim.” Id. [2]

The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon. On April 12, 2012, Decedent’s widow, Michele Valentino, both in her own right and as administratrix of her husband’s estate (referred to as “Appellant” herein), asserted wrongful death and survival claims against various defendants, including Triathlon. Only the wrongful death claim is at issue in this appeal. Appellant subsequently amended her complaint and the defendants filed preliminary objections. On July 27, 2012, the trial court sustained the defendants’ preliminary objections and struck all references in the complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages, holding that these averments were legally insufficient as the facts alleged demonstrated only ordinary negligence. The trial court further struck particular paragraphs of the amended complaint on grounds that they lacked specificity.

In December of 2012, following the various defendants’ filing of an answer and new matter, the defendants moved for summary judgment, asserting the Agreement as an affirmative defense. The trial court denied summary judgment, finding that questions of material fact remained regarding the existence of the Agreement. Appellant thereafter stipulated to the dismissal of all defendants except Triathlon. Once discovery was completed, Triathlon again moved for summary judgment. Concluding that the evidence at that point in the proceedings demonstrated that the Agreement was among Decedent’s possessions and was valid and enforceable, the trial court granted summary judgment in favor of Triathlon.

Prior to the trial court issuing its Pa.R.A.P. 1925(a) opinion explaining its rationale for granting summary judgment in favor of Triathlon, the Superior Court, in an unrelated matter, decided the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), which held that a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent.[3] Id. at 663. On April 14, 2012, shortly after Pisano was decided, the trial court issued its Pa.R.A.P. 1925(a) opinion in this matter and urged the Superior Court to vacate its order granting summary judgment in favor of Triathlon based on that decision.

Relying upon Pisano, Appellant argued to the Superior Court that Decedent’s Agreement with Triathlon does not apply to her as a non-signatory and, thus, has no preclusive effect upon her wrongful death claims asserted against Triathlon. In response, Triathlon contended that Decedent’s assumption of the risks inherent in participation in the event relieved its duty of care, thereby rendering Triathlon’s conduct non-tortious as a matter of law. The Triathlon maintained that, absent tortious activity, a wrongful death claim could not succeed because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301.

Initially, on December 30, 2015, a divided panel of the Superior Court reversed the trial court’s order in part, holding that under Pisano, Decedent’s Agreement was not applicable to Appellant because she was not a signatory to the contract. The Superior Court thereafter granted en banc argument and withdrew its panel decision.

On November 15, 2016, an en banc Superior Court affirmed the trial court’s order granting Triathlon summary judgment in a published decision. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016). Preliminarily, the Superior Court acknowledged that because a wrongful death claim is not derivative of a decedent’s cause of action, “a decedent may not compromise or diminish a wrongful death claimant’s right of action without consent.” Id. at 493. Nevertheless, the Superior Court went on to hold that “a third-party wrongful death claimant is subject to substantive defenses supported by the decedent’s actions or agreements where offered to relieve the defendant, either wholly or partially, from liability by showing that the defendant’s actions were not tortious.” Id.

The Superior Court found that the available substantive defense here was Decedent’s contractual assumption of the risks inherent in participation in the triathlon.

The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the 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. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.” Id.

Pennsylvania case law illustrates that one’s assumption of the risks inherent in a particular activity eliminates the defendant’s duty of care. SeeHughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339, 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 125 (1983) (explaining that one’s assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel, 95 A.3d 900, 906 (Pa. Super. 2014) (citation omitted) (acknowledging that the assumption of the risk doctrine is a function of the duty analysis required in all negligence actions).

Relying on this substantive tort law, the Superior Court in the instant case held that by knowingly and voluntarily executing a valid agreement expressly assuming the risks inherent in participating in the sporting event, Decedent extinguished Triathlon’s duty of care, thereby rendering its conduct not tortious. Valentino, 150 A.3d at 493.[4] As noted, the intermediate appellate court concluded that absent tortious conduct, Appellant’s wrongful death claim could not survive as a matter of law; thus, the trial court did not err in granting summary judgment in favor of Triathlon. Id.

The Superior Court in the instant case readily distinguished Pisano on the ground that it did not involve an agreement to assume all risks inherent in a particular activity, which would serve to eliminate the duty element of the wrongful death action against the alleged tortfeasor. Acknowledging Pisano’s principle that a third party’s right of action in a wrongful death claim is an independent statutory claim of a decedent’s heirs and is not derivative of a decedent’s right of action, the Superior Court emphasized that “a wrongful death claim still requires a tortious injury to succeed.” Valentino, 150 A.3d at 493. The Superior Court cogently explained that Pisano does not undermine the fundamental principle that a statutory claimant in a wrongful death action has the burden of proving that the defendant’s tortious conduct caused the decedent’s death. It opined that this cannot occur where the

decedent assumed all risks inherent in participating in the activity and thereby abrogated any duty the putative tortfeasor may have had. Id.

Similarly, the Superior Court distinguished this Court’s decision in Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), upon which Appellant had relied. Valentino, 150 A.3d at 495. In that case, James Buttermore was injured in an automobile accident and signed a release in settlement of his claim against the tortfeasors for the sum of $25,000, agreeing to release all persons from liability. Buttermore, 561 A.2d at 734. The issue on appeal to this Court was whether Buttermore’s wife, who was not a signatory to the settlement agreement, had an independent right to sue the tortfeasors for loss of consortium. Id. at 735. Acknowledging that the release applied to all tortfeasors, including the defendants, this Court held that one could not bargain away the rights of others who were not a party to the contract. Id. Because Buttermore’s wife was not a party to her husband’s settlement agreement and because she sought to sue in her own right for loss of consortium, we held that she had an independent cause of action, unaffected by her husband’s settlement agreement. Id. at 736.

The Superior Court below distinguished Buttermore, finding that unlike the express assumption of the risk agreement here, the settlement agreement in Buttermore did not extinguish a requisite element of the wife’s loss of consortium claim. Valentino, 150 A.3d at 496. Stated differently, unlike the express assumption of the risk agreement in the instant case, nothing in the settlement agreement in Buttermore precluded the finding that the defendants acted tortiously.

We agree with the Superior Court’s application of well-settled tort law and its conclusion that the assumption of the risk agreement entered into between Decedent and the Triathlon operates much differently than the settlement agreement in Buttermore and the arbitration agreement in Pisano, as the latter agreements do not preclude a finding that the defendant acted tortiously. We further agree with the intermediate appellate court that a decedent’s valid assumption of the risk agreement does not negate his heir’s right to commence a wrongful death lawsuit, but it “can support a defense asserting that the alleged tortfeasor owed no duty to the decedent.” Valentino, 150 A.3d at 494.

Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive. Such a result not only defies logic, but also the statutory requisites for a wrongful death claim. As there is no genuine issue of material fact and it is clear that Triathlon is entitled to judgment as a matter of law, we would affirm the judgment of the Superior Court, which affirmed the trial court order granting summary judgment in Triathlon’s favor. See Pa.R.C.P. 1035.2 (providing that summary judgment is appropriate only when there is no genuine issue as to any material fact or when a party which will bear the burden of proof has failed to present evidence sufficient to present the issue to the jury).

As noted, regarding the OISR’s sua sponte public policy declaration, our primary objection is that the issue of whether the express assumption of the risk agreement violates public policy is not properly before the Court; thus, the grant of relief on this claim cannot serve as a means to disturb the judgment of the Superior Court.

SeeSteiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1256 (2009) (holding that an appellate court may not reverse a judgment on a basis that was not properly raised and preserved by the parties).

Additionally, we observe that the OISR declares the express assumption of the risk agreement violative of the public policy set forth in the Wrongful Death Act, i.e., to compensate family members of victims of tortious conduct, without any explanation as to how tortious conduct can exist in the absence of a duty of care. Further, the OISR seeks to invalidate not all express assumption of the risk contracts, but only those relating to wrongful death claims, based upon the public policy set forth in the Wrongful Death Act. Accordingly, under the OISR’s reasoning, express assumption of the risk agreements would generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity, but would be invalid where a participant’s injuries were fatal and his heirs sought recovery for wrongful death. Thus, a participant who suffered grievous non-fatal injury would have no redress, but his family would have redress if the participant succumbed to his injuries.

This result is untenable as there is no evidence to suggest that it is the public policy of the Commonwealth of Pennsylvania to elevate the rights of victims’ heirs over those of the victims themselves or to immunize wrongful death claims from ordinary and readily available defenses. In fact, not only did the General Assembly premise recovery in wrongful death on the precise tortious conduct that caused the decedent’s fatal injuries, but directed expressly that a wrongful death action “may be brought, under procedures prescribed by general rules.” 42 Pa.C.S. § 8301(a). There is simply no provision in the Wrongful Death Act that renders an heir’s entitlement to relief absolute. Had the Legislature intended that mandate, it would have so directed.

Moreover, it is not the role of this Court to create the public policy of this Commonwealth. Instead, “public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Burstein v. Prudential Prop. & Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204, 207 (2002) (quoting Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006, 1008 (1998)). We have held that “only dominant public policy” justifies the invalidation of a contract and in the “absence of a plain indication of that policy through long governmental practice or statutory enactments, or violations of obvious ethical or moral standards, the Court should not assume to declare contracts contrary to public policy.” Burstein, 809 A.2d at 207. Significantly, we have acknowledged that in such circumstances, “courts must be content to await legislative action.” Id.

The OISR fails to heed this warning. By declaring the public policy of this Commonwealth, untethered to legislative fiat and in a case where the issue is not before us, the OISR comes dangerously close to displacing the legislative process with judicial will. Accordingly, we would affirm the judgment of the Superior Court, which affirmed the order granting summary judgment in favor of the Triathlon. While the facts of this case are most tragic, this Court may not afford relief where the law does not so provide.

Chief Justice Saylor and Justice Todd join this opinion in support of affirmance.

OPINION IN SUPPORT OF REVERSAL

DOUGHERTY, JUSTICE.

The question before the Court is whether the Superior Court erred when it determined

a pre-injury exculpatory waiver signed by a triathlon participant provides a complete defense to claims brought by the participant’s non-signatory heirs pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. We would find the waiver is unenforceable against the heirs and does not preclude their wrongful death action. We would therefore reverse the Superior Court’s decision and remand to the trial court for further proceedings.

In 2010, appellee Philadelphia Triathlon, LLC, organized the Philadelphia Insurance Triathlon Sprint (the Triathlon). The Triathlon consisted of three events: (1) a 0.5 mile swim; (2) a 15.7 mile bicycle race; and (3) a 3.1 mile run. The swim portion of the Triathlon took place in the Schuylkill River in Philadelphia, Pennsylvania. As a participant in the Triathlon, Decedent, Derek Valentino, registered as a participant for the Triathlon and executed a Waiver and Release of Liability (the Waiver) by affixing his electronic signature to an online registration form.

On race day, at approximately 8:30 a.m., Decedent entered the Schuylkill River for the swim portion of the Triathlon, but he did not complete the swim and, on the following day, his body was recovered from the Schuylkill River. There is no dispute Decedent drowned in the river while participating in the Triathlon. SeeValentino v. Phila. Ins. Co., No. 120401417, 2014 WL 4796614, at *1 (Pa. Com. Pl. Aug. 26, 2014).

Appellant Michele Valentino filed a lawsuit in her individual capacity and as Administratrix of the Estate of Derek Valentino, against several defendants, including appellee, asserting survival claims on Decedent’s behalf and wrongful death claims on her own behalf and that of her children.[1] See Amended Complaint at ¶¶ 26-28, 34-36, citing 42 Pa.C.S. § 8302 (Survival Act provides “[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant …”); Amended Complaint at ¶¶29-33, 37-41, citing 42 Pa.C.S. § 8301(a), (b) (Wrongful Death Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”).[2] In response to preliminary objections, the trial court entered orders striking from the complaint all references to outrageous acts, gross negligence and recklessness. The trial court also struck appellant’s claim for punitive damages. Remaining in the case were several allegations of ordinary negligence, specifically, that appellee failed to: make a

reasonable inspection of the premises and event course; remove or take measures to prevent dangerous conditions; follow rules, regulations, policies and procedures governing safety standards; properly train the Triathlon’s agents, servants and employees with respect to safety rules, regulations, policies and procedures; properly supervise the Triathlon’s employees to ensure the Triathlon was conducted in a reasonable and safe manner; properly construct or design a safe event route to avoid dangerous conditions; regulate or control the number of individuals participating in each phase of the race simultaneously; have proper rules, regulations, policies and procedures for the timely recognition and response of event participants in distress and need of rescue; and have adequate safety personnel on hand for each aspect of the event. Seeid. at ¶ 22(b), (d) & (f) – (l).

Thereafter, appellee filed an answer with new matter, claiming Decedent was sufficiently negligent himself to completely bar appellant’s recovery, or alternatively, to reduce appellant’s recovery in accordance with the amount of comparative negligence attributed to Decedent. See Answer with New Matter at ¶43, citing Comparative Negligence Act, 42 Pa.C.S. § 7102. In addition, appellee asserted the complete defense of assumption of risk, claiming it owed no duty to Decedent or his survivors based on Decedent’s execution of the Waiver. Id. at ¶¶44, 46.

a. Summary Judgment

On September 30, 2013, the trial court granted appellee’s motion for summary judgment and dismissed all of appellant’s remaining claims with prejudice. On appellant’s motion for reconsideration, the court opined summary judgment on the survival action was proper based on the Waiver. Valentino, 2014 WL 4796614, at *2. The court reversed itself regarding appellant’s wrongful death action, and opined that claim should be remanded for further proceedings based on the Superior Court’s decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 663 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014) (resident-decedent’s contractual agreement with nursing home to arbitrate all claims was not binding on non-signatory wrongful death claimants). Id. at *3. In recommending the wrongful death action be remanded, the trial court observed “a decedent can contract away his own right to recover in court under a survival action, [but] he cannot similarly alienate the rights of third parties to recover in their own wrongful death actions.” Id.

b. Superior Court

A divided en banc panel of the Superior Court subsequently affirmed summary judgment on all claims. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016).[3] The majority reasoned that, for a decedent’s heirs to recover damages in a wrongful death action, there must be an underlying tortious act by the defendant. See id. at 492-93, quotingKaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 664 (1936) (“… a right to recover must exist in the party injured when he died in order to entitle[ ] those named in the act to sue…. [W]here the deceased would have been barred by contributory negligence, or by the statute of limitations, the parties suing for his death are likewise barred.”) (internal citations omitted). The majority further held its own decision in Pisano, which allowed non-signatory wrongful death claimants to file a court action despite their decedent’s execution of an arbitration

agreement, is limited to the facts of that case. Id. at 493. The majority opined an heir’s right to recover for her decedent’s wrongful death is dependent upon the existence of a tortious act that caused the death, stating “while a third party’s wrongful death claim is not derivative of the decedent’s right of action, a wrongful death claim still requires a tortious injury to succeed.” Id. Underpinning the en banc majority’s analysis was its position that arbitration and settlement agreements “bind[ ] only the parties to the agreement while the [liability waiver] extends to non-signatory third-parties.” Id. at 497 n.9. The en banc majority considered the Waiver to be an express assumption of all risks which eliminated any legal duty otherwise owed to anyone by appellee, creating a complete bar to tort liability.[4] Id.

Appellant filed a petition for allowance of appeal and this Court granted review of two questions:

Whether the Superior Court erred when it determined that a waiver of liability form, executed solely by the decedent, and stating the signer assumes all risks of participation in a triathlon, also binds his heirs, thereby precluding them from bringing a wrongful death action?

Whether the defense of assumption of risk should be abolished except in those situations where it is specifically permitted by the Comparative Negligence Act?[5]

Valentino v. Phila. Triathlon, LLC, 641 Pa. 515, 168 A.3d 1283 (2017) (per curiam ).

Our standard and scope of review on appeal from summary judgment are well-established. “[A]n appellate court may reverse the entry of summary judgment only where it finds that the trial court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to judgment as a matter of law.” Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1004 (2003), citingPappas v. Asbel, 564 Pa. 407, 768 A.2d 1089 (2001). In determining whether the lower court erred in granting summary judgment, the standard of review is de novo and the scope of review is plenary. Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (2009), citingLJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 647 (2009). We consider the parties’ arguments with these standards in mind.

II.

Appellant argues the Superior Court erred in determining the Waiver, which

was executed solely by Decedent, barred his heirs’ wrongful death action. Appellant first notes wrongful death actions are statutorily authorized in Pennsylvania:

(a) General rule.–An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

42 Pa.C.S. § 8301(a). Relying on Pennsylvania jurisprudence, appellant argues a wrongful death action is derivative of the victim’s fatal injuries, but is nevertheless meant to compensate a decedent’s survivors “for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime.” Appellant’s Brief at 13-15, quotingFrey v. Pa. Elec. Comp., 414 Pa.Super. 535, 607 A.2d 796, 798 (1992), and citingTulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992), Kaczorowski, 184 A. at 664 (wrongful death claim is “derivative” because “it has as its basis the same tortious act which would have supported the injured party’s own cause of action”).

Appellant relies on Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), where the tort-victim husband executed a general release and settlement agreement after a car accident which purported to waive recovery by “any and all other persons associations and/or corporations[.]” Appellant’s Brief at 15-16, quotingButtermore, 561 A.2d at 734. Plaintiff’s wife did not sign the release agreement. The Buttermores filed a suit against medical professionals who treated him after the accident, including a claim brought by wife for loss of consortium. Seeid. at 16. On appeal from summary judgment, this Court ruled husband’s claim was barred by the release he executed, but wife’s claim was not because she herself had not signed it. Id., citingButtermore, 561 A.2d at 736. Appellant argues the lower courts’ ruling the Waiver in this case, which only Decedent signed, bars his heirs’ wrongful death claims is in direct contravention of Buttermore . Id. at 17-18, citingButtermore, 561 A.2d at 735.

In response, appellee contends summary judgment was properly entered and dismissal of appellant’s wrongful death claims should be affirmed. Appellee argues a wrongful death action is derivative of, and dependent upon, a tortious act that results in decedent’s death. Appellee’s Brief at 13, citingCentofanti v. Pa. R. Co., 244 Pa. 255, 90 A. 558, 561 (1914) (additional citations omitted). Appellee insists the Superior Court correctly determined Decedent’s execution of the Waiver meant appellee’s conduct was rendered non-tortious in all respects because appellee no longer owed Decedent any duty of care. Id. at 16-17, citingMontagazzi v. Crisci, 994 A.2d 626, 635 (Pa. Super. 2010) (plaintiff knowingly and voluntarily encountering an obvious and dangerous risk relieves those “who may have otherwise had a duty”); Staub v. Toy Factory, Inc., 749 A.2d 522, 526 (Pa. Super. 2000) (en banc ) (“Our [S]upreme [C]ourt appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court’s duty analysis ….”) (additional citations omitted). Appellee also argues Pisano is not applicable here. Appellee contends Pisano determined only the narrow issue of whether a wrongful death plaintiff is bound by an arbitration agreement which she did not sign, and is not relevant to questions regarding

the exculpatory Waiver signed by Decedent. Seeid. at 24.

III.

The Wrongful Death Act (the Act), provides an independent statutory cause of action that belongs to specific claimants, i.e. the surviving spouse, children or parents of the deceased. 42 Pa.C.S. § 8301 (Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”). SeeKaczorowski, 184 A. at 665 (“By the statute there is given an explicit and independent right of action to recover the damages peculiarly suffered by the parties named therein.”). This statutory claim for wrongful death “is derivative because it has as its basis the same tortious act which would have supported the injured party’s own cause of action. Its derivation, however, is from the tortious act and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor.” Id. at 664 (internal citations omitted). Accordingly, Pennsylvania courts recognize that while wrongful death actions seek damages for losses to heirs arising from their relative’s wrongful death, the claims are not derivative of — or limited by — the decedent’s own rights. SeePisano, 77 A.3d at 660.

It is clear the General Assembly intended the Act to compensate the decedent’s surviving heirs, not the decedent himself, whose own losses are encompassed in a survival action. Compare 42 Pa.C.S. § 8301(wrongful death) with 42 Pa.C.S. § 8302 (survival); see alsoAmato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015), quotingHatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1235 (Pa. Super. 2012) (“The purpose of the Wrongful Death Statute … is to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death…. A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death.”) (additional citations omitted). The Act is thus designed to assure a decedent’s heirs may seek compensation “for the loss of pecuniary benefits which [they] would have received from the deceased had death not intervened.” Kaczorowski, 184 A. at 665. Also, the Act is a remedial statute, and as such it must be liberally interpreted to effect its purpose and promote justice. 1 Pa.C.S. § 1928(c); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085, 1087 (1985) (wrongful death statute is “remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act”); see alsoO’Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1203 (2001) (noting remedial statutes are to be liberally construed to effect objectives).

With these principles and the legislative purpose of the Act in mind, we must determine whether the Waiver provides a complete defense to a wrongful death claim brought by non-signatory heirs. A liability waiver is, at its core, a contract, and must be construed and interpreted in the same manner as other contracts — such as arbitration clauses or settlement agreements and releases — when determining whether it is effective against a non-signatory third party. The Waiver purports to be an exculpatory contract, and such contracts are generally disfavored by the law. SeeEmployers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966) (“contracts providing for immunity from liability for negligence must be construed strictly since

they are not favorites of the law”); see alsoSoxman v. Goodge, 372 Pa.Super. 343, 539 A.2d 826, 828 (1988) (“the law … recognized that lying behind [exculpatory] contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability and thus developed the rule that these provisions would be strictly construed with every intendment against the party seeking their protection”), quotingPhillips Home Furnishings Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840, 843 (1974). Accordingly, a pre-injury exculpatory agreement is valid only when “it does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1177 (2010), citingTopp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (1993). This Court has consistently recognized the exculpatory contract is an agreement that is “intended to diminish legal rights which normally accrue as a result of a given legal relationship or transaction … [which must be] construed strictly against the party seeking [its] protection.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963), quotingMorton v. Ambridge Borough, 375 Pa. 630, 101 A.2d 661, 663 (1954).

Thus, in determining whether the Waiver provides a defense to appellant’s wrongful death action, we must liberally apply the remedial Act while we simultaneously construe the Waiver strictly against appellee as the party seeking protection from the contract. We would hold the Superior Court did the opposite in its decision below: the court erroneously gave the Waiver the broadest application possible while disregarding the remedial nature of the Act and the public policy considerations underpinning it.[6]

First, we note the Waiver is a contract between Decedent and appellee involving their own private affairs. Chepkevich, 2 A.3d at 1177. The Waiver includes broad language barring Triathlon participants from filing suit to recover damages for injuries or death “which may arise out of, result from, or relate to my participation in the [Triathlon], including claims for Liability caused in whole or in part by the negligence of” appellees. See Waiver attached as Exhibit A to appellee’s Answer and New Matter. However, the Waiver is plainly not an agreement between Triathlon participants’ wrongful death heirs and appellee. We emphasize a wrongful death action belongs solely to a decedent’s heirs, is intended to compensate them, and does not accrue to the decedent. SeeHatwood, 55 A.3d at 1235, quotingMachado v. Kunkel, 804 A.2d 1238, 1246 (Pa. Super. 2002) (“Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made …”). Thus, while a pre-injury exculpatory

waiver might indeed be effective to bar a survival claim by a decedent’s estate, it is quite another thing to conclude the decedent’s agreement acts as a complete defense to statutory claims that are specifically available to his non-signatory heirs. Appellee argues the Waiver provides a complete defense to appellant’s wrongful death claim, but in our considered view, allowing the Waiver to have this effect would require us to ignore the purpose of the Act and the public policy concerns it was specifically enacted to protect.[7]

Our conclusion is consistent with prior Pennsylvania case law arising from wrongful death actions. As this Court has stated, such lawsuits are meant to compensate the statutory beneficiaries, i.e. the spouse, children or parents of the decedent for the pecuniary losses they sustained as a result of their relative’s death. SeeTulewicz, 606 A.2d at 431. Accordingly, our courts have recognized the distinct nature of these claims and have declined to enforce a decedent’s own agreements and obligations against his heirs. SeeButtermore, 561 A.2d at 736 (release signed by husband barred his own action against hospital but not the independent action of wife, who did not sign release); Pisano, 77 A.3d at 660, citingKaczorowski, 184 A. at 664 (wrongful death claim is derived from injury to decedent but it is independent and distinct cause of action; decedent’s agreement to arbitrate not binding on non-signatory heirs); see alsoRickard v. Am. Nat’l Prop. & Cas. Co., 173 A.3d 299 (Pa. Super. 2017) (decedent’s agreement to accept insurance benefits in exchange for allowing subrogation by insurer not binding on non-signatory heirs who recovered damages in subsequent wrongful death action against tortfeasor). The Waiver in this regard is analogous to the settlement and release agreement at issue in Buttermore, or the arbitration agreement in Pisano .

We observe that the undisputed purpose of the Act is “to provide a cause of action against one whose tortious conduct caused the death of another.” Amadio, 501 A.2d at 1087. And, as we have stated, exculpatory contracts must be read narrowly. SeeDilks, 192 A.2d at 687; see alsoTayar v. Camelback Ski Corp. Inc., 616 Pa. 385, 47 A.3d 1190, 1196 (2012) (for exculpatory clause to be enforceable “contract language must be construed strictly”), quotingTopp Copy, 626 A.2d at 99. Allowing the Waiver to have a broad exculpatory effect with respect to non-signatory wrongful death claimants would essentially make the right the General Assembly created for certain heirs through the Act an illusory one. Abrogation of an express statutory right to recovery in this way violates public policy, and a pre-injury exculpatory waiver that contravenes public policy is invalid and unenforceable. Chepkevich, 2 A.3d at 1177. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). Moreover, our recognition of relevant public policy concerns in this regard does not constitute “creation” of public policy. See OISA at 947. Our law is clear that determination of whether contract terms may be avoided on public policy grounds “requires a showing of overriding public policy from legal precedents [or] governmental practice ….” Tayar, 47 A.3d at 1199. The public policy

we recognize here is well-established in both judicial precedents and statutory enactment. This Court has declined to enforce exculpatory contracts “[w]here the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, [because] that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Boyd v. Smith, 372 Pa. 306, 94 A.2d 44, 46 (1953) (exculpatory waiver of liability unenforceable on public policy grounds due to conflict with statute). Precluding the use of the Waiver as a carte blanche automatic defense to wrongful death actions comports with the remedial purpose and protection expressed in the Act. A contrary holding elevates a private contract above public policy embodied in a statutory enactment, and overrides our jurisprudence directing a narrow and strict construction of exculpatory waivers.

Accordingly, we would hold the Waiver is void and unenforceable with respect to appellant’s wrongful death claims and, as such, the Waiver should not be available to appellee as a defense in the underlying wrongful death litigation.[8] We would hold the Superior Court erred in affirming summary judgment in favor of appellee on that basis, and reverse and remand to the trial court for further proceedings on appellant’s wrongful death claim.

Justice Donohue and Justice Mundy join this opinion in support of reversal.

OPINION IN SUPPORT OF REVERSAL

DONOHUE, JUSTICE.

I join Justice Dougherty’s Opinion in Support of Reversal (“OISR”) in full. I too disagree with the Superior Court’s conclusion that the Decedent’s exculpatory agreement may serve as a complete defense to the wrongful death heir’s claim against the Triathlon. I write separately to express my view that, in light of the derivative nature of wrongful death actions, the Superior Court was technically correct in its analysis of the mechanical operation of the liability waiver in reaching its conclusion. However, when the mechanical operation of the law works to defeat the purpose of a remedial statute like the Wrongful Death Act, by way of the broad enforcement of a legally disfavored exculpatory agreement, the mechanical operation must yield.

As Justice Dougherty explains, this Court has repeatedly affirmed a requirement that exculpatory agreements must be narrowly and strictly construed because exculpatory language, which purports to relieve a person of liability even when he has negligently caused injury to another, is not favored in the law. OISR (Dougherty, J.) at 952-53, 954-55 (citing Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966); Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (2010); Topp Copy Prods. Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993);

Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963)). Here, Appellant does not challenge the validity or the enforceability of the contractual assumption of risk in the survival action she brought (as administratrix) on behalf of Decedent’s estate. Therefore, for purposes of this appeal, the liability waiver is valid and enforceable as a complete defense to the survival action. As between the Triathlon and Decedent, there is a knowing and voluntary agreement to extinguish Decedent’s ability to recover for claims of ordinary negligence.

I believe that we must, however, decline to allow the liability waiver to defeat a wrongful death action brought by heirs who never agreed, expressly or otherwise, to eliminate their statutory right to recover for their pecuniary loss resulting from the death of their loved one that, as alleged, was tortious but for the liability waiver. Allowing the liability waiver to defeat the wrongful death action, as the Superior Court did, gives the waiver the broadest possible reading, contrary to our mandate to narrowly construe such provisions. The tenet of strict construction requires that we limit this liability waiver to its narrowest effect: a bar to recovery under the survival action.

Moreover, as noted by Justice Dougherty, for an exculpatory waiver to be valid, it must meet three conditions: it must not contravene public policy, the contract must be between persons relating entirely to their own private affairs, and each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. OISR (Dougherty, J.) at 952-53 (citing Chepkevich, 2 A.3d at 1177). As to these first two prongs, this Court’s decision in Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953), is instructive. In Boyd, an agreement between a property owner and a tenant relieved the property owner from liability for any injury occasioned by the property owner’s negligence in the maintenance of the leased building. Boyd, 94 A.2d at 45. However, pursuant to statute, “no building … shall be used for human habitation unless it is equipped with a fire escape or fire escapes as required by law.” Id. (quoting 53 P.S. § 3962). The property in question was not equipped with fire escapes. The building caught fire and, unable to escape the building by fire escape, the tenant sustained serious injuries and sued. The property owner attempted to rely on the exculpatory agreement in the lease to avoid liability.

We declined to find the waiver enforceable, explaining:

Such a protective clause is undoubtedly valid and enforceable if it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the state but merely an agreement between persons relating entirely to their private affairs. The situation becomes an entirely different one in the eye of the law when the legislation in question is, as here, a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.

Id. at 46. We further held, “where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Id.

We are tasked here with determining the legal effect of a liability waiver upon a third party, not the signatory – a far more extreme reach of the waiver of liability than in Boyd . However, as in Boyd, the fullest enforcement of the liability waiver would contravene an unequivocal policy determination by the General Assembly,

namely that wrongful death heirs are entitled to recover pecuniary losses from the party responsible for their provider’s death. See OISR (Dougherty, J.) at 952-53, 954.

The Wrongful Death Act, which is remedial in nature and must be construed liberally, assures that surviving heirs do not need to go without financial support nor look to public welfare agencies to shoulder the economic burden of the loss of a provider. SeeKaczorowski, 184 A. at 665; see alsoGershon v. Regency Diving Center, 368 N.J.Super. 237, 845 A.2d 720, 728 (2004) (observing that, “in many wrongful death cases the decedent was the ‘breadwinner’ and the heirs are children, incompetents or those otherwise economically dependent on the decedent”). Notably, in the case at bar, Decedent was a forty-year-old husband and father of two who worked full-time for United Parcel Service and part-time as a licensed realtor. See Appellant’s Response to Triathlon’s Motion for Summary Judgment at 2.

Allowing the Triathlon to use Decedent’s waiver of liability to defeat a wrongful death claim would require us to ignore clear public policy embedded in the wrongful death statute and our laws governing decedents more generally. Analogously, the General Assembly has for centuries prohibited spousal disinheritance by will in order to ensure the surviving spouse’s financial security after the decedent’s death. SeeIn re Houston’s Estate, 371 Pa. 396, 89 A.2d 525, 526 (1952); see also 20 Pa.C.S. § 2203 (authorizing a surviving spouse to take against the will an elective share of one-third of the deceased’s property, subject to certain exceptions, thereby ensuring the surviving spouse’s right to some inheritance). Thus, a married individual cannot eliminate his spouse’s statutory entitlement, even through an attempted disinheritance in a last will and testament. In my view, it is impossible to reconcile allowing a sporting event participant to eradicate a statutory claim for wrongful death damages when he could not accomplish a disinheritance by virtue of a will. For this reason, and because liability waivers are disfavored, I join Justice Dougherty in narrowly construing the liability waiver so that it is enforceable only in the survival action brought on behalf of Decedent’s estate, where it was not challenged. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). So construed, it has no effect on the wrongful death action. Like Justice Dougherty, I would decline to give any effect to the Decedent’s contractual waiver of the Triathlon’s duty of care in the wrongful death action because doing so would implicate public, not merely private, affairs and would contravene the policy set forth by our legislature in the Wrongful Death Act which we must liberally construe. OISR (Dougherty, J.) at 954-55; see alsoChepkevich, 2 A.3d at 1189; Boyd, 94 A.2d at 46.

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Notes:

[1] We also granted allowance of appeal to determine whether to abolish the assumption of the risk doctrine under circumstances where the Comparative Negligence Act does not expressly permit its application. Appellant, however, waived this issue by not challenging the overall viability of the assumption of the risk doctrine in the lower tribunals. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal”).

[2] In block capital lettering above the signature line, the Agreement stated that Decedent’s acceptance of the Agreement confirmed that he read and understood its terms, that he understood that he would surrender substantial rights, including the right to sue, and that Decedent signed the agreement freely and voluntarily. Id. This final paragraph went on to state that acceptance of the Agreement constituted “a complete and unconditional release of all liability to the greatest extent allowed by law.” Id.

[3] In Pisano, the decedent had executed an agreement at the time of his admission to a long-term care nursing facility (“Extendicare”), providing that any dispute arising from the agreement would be resolved by binding arbitration. Id. at 653. The decedent’s son subsequently commenced a wrongful death action against Extendicare in the trial court. Extendicare filed preliminary objections, seeking to have the case dismissed for lack of subject matter jurisdiction. The trial court overruled Extendicare’s preliminary objections, holding that a wrongful death action is a creature of statute and is independent of the right of action of the decedent’s estate. Id. at 654. Thus, the trial court concluded, the decedent’s agreement to arbitrate disputes did not preclude the wrongful death claim brought by the decedent’s son. Id.

The Superior Court affirmed. The court reasoned that pursuant to 42 Pa.C.S. § 8301, a wrongful death action is not derivative of the decedent’s claim, but is a separate and distinct right of action belonging to statutory claimants to compensate them for damages they sustained as a result of the decedent’s death. Id. at 656-8. The Pisano court concluded that the arbitration agreement was not binding on the decedent’s son because he was not a party to that agreement; thus, the trial court was correct in refusing to compel arbitration.

[4] Notably, the Superior Court presumed the validity of the Agreement as Appellant presented no claim to the contrary. See id. at 492 n.6 (explaining that Appellant “does not challenge the substantive validity of the liability waiver as a bar to her claims of ordinary negligence. Consequently, we need not address the validity of the exculpatory provisions in the context of this case.”). By declaring the Agreement void as against public policy, the OISR ignores this clear waiver of any challenge to the Agreement on those grounds.

[1] Appellant stipulated to the dismissal of all defendants other than appellee on January 29, 2013, and they are not involved in this appeal. See Stipulation of Dismissal Without Prejudice.

[2] In Pennsylvania, wrongful death claims are separate and distinct from survival claims, although both involve allegations of negligence against the defendant. SeeDubose v. Quinlan, 643 Pa. 244, 173 A.3d 634, 637 (2017); Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 4 (1994) (discussing differences between survival and wrongful death claims); Tulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992); (“the two actions are designed to compensate two different categories of claimants”); Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa . 2014) (“Pennsylvania courts have repeatedly distinguished wrongful death claims from survival claims”). The survival claim is the “continuation of a cause of action that accrued to the plaintiff’s decedent while the decedent was alive …. On the other hand, a wrongful death action accrues to the decedent’s heirs when the decedent dies of such an injury ….” Dubose, 173 A.3d at 637. As explained more fully infra, a wrongful death claim is an independent action which belongs to the decedent’s heirs for damages aimed to compensate members of a decedent’s family for their loss. Tulewicz, 606 A.2d at 431.

[3] Judge Olson authored the majority opinion joined by P.J. Gantman, P.J.E. Bender, and Judges Bowes, Shogun and Ott.

[4] In a concurring and dissenting opinion joined by Judges Panella and Lazarus, P.J.E. Ford Elliott determined Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989) was instructive on the analysis of the Waiver, despite the majority’s effort to distinguish it. Valentino, 150 A.3d at 501-02 (Ford Elliott, P.J.E., concurring and dissenting). Judge Ford Elliott noted the Waiver is similar to the release in Buttermore, and the non-signatory heir in that case had an independent right to sue for the injury she suffered as a result of her decedent’s death. Id. Judge Ford Elliott stated the majority’s holding the Decedent’s own assumption of risk created a complete defense to his heirs’ wrongful death action would “eviscerate the Pennsylvania wrongful death statute which creates an independent and distinct cause of action, not derivative of the decedent’s rights at time of death.” Id. at 502. Judge Ford Elliott would also have relied on Pisano to reverse summary judgment. Id. at 504.

[5] This Court granted review of this second issue and ordered supplemental briefing via a per curiam order dated January 26, 2018. As acknowledged by the Opinion in Support of Affirmance (OISA), although appellant challenged the effectiveness of the Waiver as it applied to Decedent, she never questioned the overall viability of the doctrine of assumption of the risk below, and the issue is therefore waived. See OISA at 942, n.1.

[6] The OISA suggests our view of the case ignores the question before the Court. See OISA at 942-43. Respectfully, the OISA’s position reveals an overly narrow reading of the issue on appeal, i.e., whether an exculpatory contract can be enforced against non-signatory heirs in a claim made pursuant to the Wrongful Death Act. Seesupra at 950-51. In answering that question, we examine the terms of the Waiver within the context in which it is to be enforced. We cannot disregard the nature of the underlying suit and our jurisprudence guiding our interpretation of exculpatory contracts, which specifically includes a consideration of public policy. SeeChepkevich, 2 A.3d at 1177 (exculpatory agreement is valid only when “it does not contravene public policy …”). Although the question granted on appeal did not include the term “public policy,” we must surely consider public policy when determining whether an exculpatory agreement is valid and enforceable under the given circumstances.

[7] The OISA accurately observes an exculpatory agreement would “generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity,” but nevertheless rejects our view that the same waiver could be ineffective as a defense in a wrongful death claim while providing a viable defense in a survival action. See OISA at 947. We consider the disparate treatment of the Waiver in the two causes of action to be the direct result of the different goals and purposes served by the relevant statutes. Seesupra at 942, n.2.

[8] Importantly, our holding would not render appellee defenseless in that litigation, despite the OISA statement our reading means appellant’s right to relief is “absolute”. See OISA at 947. We recognize a wrongful death action is a tort claim arising from the alleged “wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Appellant must still prove the elements of her case, including causation, before any recovery would be assured. See, e.g.,Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008 (2003) (to maintain negligence action, plaintiff must show defendant had duty to conform to standard of conduct, breach of duty, the breach caused the injury, and the injury resulted in damages).

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Tennessee still has not caught up, and assumption of the risk is not a defense to sport or recreational activities.

There is no assumption of the risk defense in Tennessee. Consequently, cyclists in a paceline who crash can be liable to each other for the crash.

Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

State: Tennessee, Court of Appeals of Tennessee, At Knoxville

Plaintiff: Carolyn Crisp

Defendant: Michael Nelms, et Al.

Plaintiff Claims: negligence

Defendant Defenses: inherent risk

Holding: for the plaintiff

Year: 2018

Summary

Cyclists in a paceline could be liable for a fatality of one of the riders because Tennessee has no assumption of the risk as a defense. Paceline riding is inherently dangerous; however, court chose to ignore that issue. Recreation in Tennessee is risky for sports & recreation participants.

Facts

A paceline is a group of riders cycling right behind the first ride, single file in a row. Cyclists do this because it increases the speed of the entire group and saves everyone’s energy. The rider in front is expanding 10% or more, less energy and the riders behind can expand up to 30% less energy. Pacelines are what you see in large cycling races like the Tour de France.

On February 25, 2014, five people embarked on a cycling expedition along the shoulder of U.S. Highway 321 near Townsend, Tennessee. The group was riding in a paceline, an activity wherein cyclists ride in a line one after the other in close quarters. This action serves to increase the efficiency of the ride as the riders draft off one another to counteract the wind resistance. At the front of the line was Long. Behind Long was Nelms. Richard Cox was third. Decedent was fourth, and Stacy Napier was at the back of the line. This was not a group of novices. Rather, these were seasoned cyclists riding expensive bicycles. Long and Decedent, friends since childhood [*3] and regular cycling companions, were in their 70s.

The cyclists left Cycology, a bicycle shop on U.S. highway 321 in Blount County, at 10:30 a.m. The riders were traveling at a speed of about 22 miles per hour. Around noon, the incident occurred. Nelms’ front tire struck Long’s back tire. Nelms wrecked and fell to the pavement. Cox, third in line, swerved and avoided Nelms. Decedent, fourth, steered right but wound up flying off his bicycle and landing on his head. Hospital records reflect that “another rider hit” Nelms. Nelms denies that Decedent hit him, asserting instead that Decedent sharply applied his breaks and thereby caused his own misfortune.

Decedent was rendered quadriplegic by the wreck. Decedent dictated a note to Nelms, stating in part: “I think it is important for you to know that I place no blame on you for the accident . . . it was just one of those things that you cannot understand.” On August 22, 2014, Decedent died.

In February 2015, Plaintiff, Decedent’s widow, sued Nelms in the Trial Court. In April 2015, Nelms filed an answer denying liability. Nelms raised the defense of comparative fault and stated that Long may have been negligent in causing the incident. In [*4] June 2015, Plaintiff filed an amended complaint, this time including Long as a defendant. In August 2015, Long filed an answer acknowledging that Nelms struck his bicycle but denying that he slowed down. Long raised the defense of comparative fault with respect to Nelms and Decedent. Discovery ensued.

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

What a crock.

I’ve written extensively about most states bringing back the assumption of the risk defense for sports and recreational activities. Without players being protected from the risks of the sport, the sport or activity will have no enthusiasm and very little value. Tennessee has not adopted that doctrine. Tennessee states that assumption of the risk is a factor used to help determine the damages. Meaning when the jury determines if there was any negligence and then determine damages, the damages can be reduced by how much of the risk the plaintiff assumed.

Assumption of the risk is a complete bar to litigation in the vast majority of states. Not in Tennessee.

Tennessee still prevents litigation over inherently risky activities. However, this court in its zeal to allow the plaintiff to win, totally ignore the fact that riding in a paceline is an inherently dangerous activity.

Defendants argue that paceline riding is an inherently risky activity as described by the experts and participants, especially for a rider of Decedent’s age. Nelms argues that Decedent had his own duty to adhere to, as well. Plaintiff argues in response that no rider in a paceline assumes that the person riding in front of him suddenly and inexplicably will slow down. Our initial inquiry is whether a duty of care exists in paceline riding and what the nature of that duty is.

By ignored, I mean the court bent over backwards to find a way to allow this case to proceed by simply ignoring the law concerning inherently dangerous activities. The court moved from inherently dangerous to finding a duty. No duty is owed in an inherently dangerous activity.

INHERENTLY DANGEROUS: An activity is inherently dangerous if there is (a) an existence of a high degree of risk of some harm to the person; (2)likelihood that any harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of commons usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which value to the community is outweighed by its dangerous attributes. (Restatement, Torts 2d § 519(1))

See Definitions.

If assumption of the risk is not a defense, and if you ignore the issue of whether the risk is inherently dangerous. Consequently, you are back to simple negligence and the duties that each person owes another.

Everyone has a duty to exercise ordinary and reasonable care in light of the surrounding circumstances to refrain from conduct that could foreseeably injure others, and some locations and circumstances may require a higher degree of care than others.

The court even acknowledged why assumption of the risk is a doctrine that should be adopted in sporting and recreation situations.

The reason many courts have required a plaintiff to prove reckless or intentional conduct on the part of a defendant in order to recover for injuries sustained in an athletic competition, is that these courts have feared that an ordinary negligence standard will increase litigation of sports injuries and stifle athletic competition.

However, Tennessee does not believe it.

We do not share these court’s concerns with respect to the imposition of an ordinary negligence standard in cases of sports related injuries, because we think that the recognition that the reasonableness of a person’s conduct will be measured differently on the playing field than on a public street, will sufficiently prevent the stifling of athletic competition. We also note that the reasonableness of a person’s conduct will be measured differently depending upon the particular sport involved and the likelihood and foreseeability of injury presented by participation in the particular sport. What is reasonable, acceptable, and even encouraged in the boxing ring or ice hockey rink, would be negligent or even reckless or intentional tortious conduct in the context of a game of golf or tennis. We should not fashion a different standard of care for each and every sport. We simply recognize that the reasonable conduct standard of care should be given different meaning in the context of different sports and athletic competitions.

If there is a duty of reasonable care, you can then proceed to prove negligence. Negligence in Tennessee is defined as a five-step process.

To establish a claim for negligence a plaintiff must prove: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) injury or loss; (4) causation in fact; (5) and proximate causation.

From there it was easy to fabricate the idea that paceline riders owed each other a duty of reasonableness.

Inherently risky or not, a paceline rider still has a duty of care to her fellow riders. For instance, while wrecks can and do happen, a paceline rider has a duty to refrain from abruptly applying her brakes or from hitting the wheel of the rider of front of her without good reason. We conclude that each paceline rider in the instant case had a duty to act reasonably under the circumstances.

Think about the absurdity of the above statement. A group of cyclists in a paceline has the right of way. A large truck pulls out in front of the first rider. Based on the analysis of the facts by the court, the first rider is now supposed to hit or get hit by the truck. He or she cannot apply their brakes.

The Tennessee Appellate court sent the case back for trial.

So Now What?

Honestly, this is a scary case. Because Tennessee’s law is antiquated, any participant in any outdoor recreation activity or sporting event could be sued for any injury they receive during the event. Insurance costs in Tennessee will continue to rise because it will be cheaper to settle these cases then to try to win at trial.

And the court’s refusal to look at the inherent risks of cycling in a paceline was a plaintiff’s dream. Even professional’s crash in pacelines. Amateurs are always going to be at risk and there is nothing you can do about the risks. Don’t ride in a paceline, and you don’t get the benefits that a paceline provides.

If you engage in any event in Tennessee, you can walk away a defendant. Stay away from Tennessee if you are recreating.

What do you think? Leave a comment.

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Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

Court of Appeals of Tennessee, At Knoxville

January 16, 2018, Session; March 28, 2018, Filed

Reporter

CAROLYN CRISP v. MICHAEL NELMS, ET AL.

Subsequent History: Request granted Crisp v. Nelms, 2018 Tenn. LEXIS 401 (Tenn., Aug. 8, 2018)

Later proceeding at Crisp v. Nelms, 2018 Tenn. LEXIS 503 (Tenn., Aug. 9, 2018)

Prior History: Tenn. R. App. P. 3 [*1]
Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded. Appeal from the Circuit Court for Blount County. No. L-18929. Rex H. Ogle, Judge.

Disposition: Judgment of the Circuit Court Reversed; Case Remanded.

Counsel: David T. Black, Melanie E. Davis, and Carlos A. Yunsan, Maryville, Tennessee, for the appellant, Carolyn Crisp.

P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Michael Nelms. Rick L. Powers and William A. Ladnier, Knoxville, Tennessee, for the appellee, George Long.

Judges: D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

Opinion by: D. MICHAEL SWINEY

Opinion

This appeal arises from a lawsuit over a fatal cycling accident. Carolyn Crisp (Plaintiff), surviving spouse of William Andrew Crisp (Decedent), sued Michael Nelms (Nelms) and George Long (Long) (Defendants, collectively) in the Circuit Court for Blount County (the Trial Court) for negligence. Decedent and four others, including Nelms and Long, were riding as part of a paceline group when a crash occurred. Nelms asserted comparative fault, stating that Long slowed down suddenly at the head of the line. Long denied he slowed down suddenly. Defendants [*2]
filed motions for summary judgment. The Trial Court held, among other things, that paceline cycling inherently is dangerous and that Decedent was at least 50% at fault for his accident. Plaintiff appealed to this Court. We hold, inter alia, that there is a genuine issue of material fact as to whether Long slowed down suddenly at the head of the line and whether a reasonable jury could find Decedent less than 50% at fault in his accident. We reverse the judgment of the Trial Court and remand for the case to proceed.

OPINION

Background

On February 25, 2014, five people embarked on a cycling expedition along the shoulder of U.S. Highway 321 near Townsend, Tennessee. The group was riding in a paceline, an activity wherein cyclists ride in a line one after the other in close quarters. This action serves to increase the efficiency of the ride as the riders draft off one another to counteract the wind resistance. At the front of the line was Long. Behind Long was Nelms. Richard Cox was third. Decedent was fourth, and Stacy Napier was at the back of the line. This was not a group of novices. Rather, these were seasoned cyclists riding expensive bicycles. Long and Decedent, friends since childhood [*3]
and regular cycling companions, were in their 70s.

The cyclists left Cycology, a bicycle shop on U.S. highway 321 in Blount County, at 10:30 a.m. The riders were traveling at a speed of about 22 miles per hour. Around noon, the incident occurred. Nelms front tire struck Longs back tire. Nelms wrecked and fell to the pavement. Cox, third in line, swerved and avoided Nelms. Decedent, fourth, steered right but wound up flying off his bicycle and landing on his head. Hospital records reflect that another rider hit Nelms. Nelms denies that Decedent hit him, asserting instead that Decedent sharply applied his breaks and thereby caused his own misfortune.

Decedent was rendered quadriplegic by the wreck. Decedent dictated a note to Nelms, stating in part: I think it is important for you to know that I place no blame on you for the accident . . . it was just one of those things that you cannot understand. On August 22, 2014, Decedent died.

In February 2015, Plaintiff, Decedents widow, sued Nelms in the Trial Court. In April 2015, Nelms filed an answer denying liability. Nelms raised the defense of comparative fault and stated that Long may have been negligent in causing the incident. In [*4]
June 2015, Plaintiff filed an amended complaint, this time including Long as a defendant. In August 2015, Long filed an answer acknowledging that Nelms struck his bicycle but denying that he slowed down. Long raised the defense of comparative fault with respect to Nelms and Decedent. Discovery ensued.

Timothy Joganich, a bicycle safety expert testifying for Plaintiff, stated in his deposition:

Q. All right. The last sentence here, The collision with Mr. Nelms bike and the wheel of Mr. Longs
strike that. The collision with Mr. Nelms bike and with the wheel of Mr. Longs bike shows that these duties were breached by Mr. Nelms. That is an opinion you will be giving?

A. Yes.

Q. If Mr. Longs bike slowed suddenly, and Mr. Nelms front wheel contacted Mr. Longs back wheel, would that be a breach of a duty by Mr. Nelms?

A. You have to define suddenly because this is really a control systems problem. The reality is there is a variation in speed of all the cyclists out there, even the one in front. Now, it may be so subtle and so small that you may not perceive it. The fact is that the rider out in front has the duty to maintain a constant pace as possible, and then all the riders following [*5]
have to respond to any variation in input. Now, if for reason the rider out in front had an emergency braking where the following riders would not respond in time, then you are going to have a crash. In this case, I dont see anything in the evidence to support Mr. Long slowing down in a sudden manner to the point where Mr. Nelms could not respond.

Q. Okay. Well, you read Mr. Nelms deposition, did you not?

A. Correct. He said that he slowed down suddenly. But when you look at all the other evidence, even Mr. Nelms said that there was nothing in the roadway that he saw I should backup and say that the only reason why the rider is going to slow down is for some external factors such as something in the roadway Im talking about an emergency type of condition such as a deer runs out or a squirrel runs out, and that happens all the time. It happens to our group, but theres no evidence of anything like that happening. Mr. Long testified that he was going to go at a constant pace all the way to River Road, so theres no reason for him to slow down. The only other reason for him to slow down is he were going to pull off and switch positions, but theres no evidence of that.

Q. Well, [*6]
theres been testimony that there was a strong headwind that day. Are you going to give any opinion about the wind conditions on the day of the accident in question?

A. I will certainly refer to it because that is an issue in the case, and its been discussed in the depositions.

Q. Well, while we are on that topic, and I will cover it again, but I dont see that you give any opinion in your affidavit or in this letter where you discuss the wind conditions. Are you sticking to that?

A. Well, its not going to be a main point. It may be a sub opinion based on some of the main opinions Im talking about. If you asked me, was there a wind at the time, then Im going to talk to you about what the others said and what the climatology report says.

Q. Okay. When Mr. Long says that there was a strong headwind that day, do you have any reason to dispute that?

A. Well, I will say theres conflicting testimony in that regard because Ms. Napers doesnt remember any wind, and Mr. Nelms only suspects that there was a strong wind, so yes, Mr. Long did testify there was a wind. Now, when you look at the climatology records in that time frame, we are talking 8 to 10 miles an hour with the wind coming predominantly [*7]
out of the north, and it gives the wind direction, 330 degrees.

Q. Are you ruling out wind as any possible contribution to any of the accidents?

A. I dont see it playing a significant role.

***

Q. You state in paragraph 16 that the front wheel of Mr. Crisps bicycle subsequently ran into Mr. Nelms. Now, you understand that that statement, that fact, is disputed?

A. Its in the medical records.

Q. That was my next question.

A. Okay.

Q. What do you rely on to come to that conclusion?

A. A couple things. One is primarily the medical records. I will refer you

Q. The medical records of whom?

A. Mr. Nelms. I will refer you to the specific record. Im referring to the Care Today Clinic. Its for Michael Nelms. Lets see if theres a date on it. The date is 2/25/14. The time is 7:23. Under HPI, which is history of the patient, it says, Riding bicycle approximately 22 miles an hour, wrecked, and another rider hit him. When you look at that evidence in the context of all of the other testimony of the other riders that avoided the pileup, logically, you can only conclude it was Mr. Crisp hitting Mr. Nelms. Then Stacy testified that Mr. Crisp hit Mr. Nelms bike. Well, everything is happening so quick, [*8]
but both the bike and Nelms are on the ground, so bike versus Mr. Nelms, so I can see where there would be some confusion, and it may have been both.

James Green, a forensic engineer specializing in bicycle wreck reconstruction hired by Nelms, also was deposed. Green testified in part:

Q. You said you were employed to determine causation. Can you tell us whether or not this accident would have happened but for Mr. Nelms hitting the bicycle in front of him and losing control and wrecking?

A. Well, Im not sure I can answer it the way youve phrased it. If youre – – let me see if I understand your question and Ill try to answer it. Are you asking me if the accident to Mr. Crisp would have occurred if Mr. Nelms had not hit the bike ahead of him, or are you asking me what are you asking me causation, I guess is my question to you, to answer your question?

Q. No. Im asking you this question, and however you interpret it. But my question is, would this accident have happened not have happened but for the fact that Mr. Nelms hit the bicycle in front of him?

A. Im not Im not sure. If you isolate it just to the series of events, I would say it wouldnt. But if youre looking at causation [*9]
in terms of the whole scenario, Im going to say that you basically had four gentlemen in their 70s, and Im 71, riding riding bikes in a tight paceline on a very, very windy day where wind was coming from several different directions over time, and it really isnt an appropriate thing to do, in my opinion. I dont ride pacelines anymore, and I used to race as a pro. So and Im very familiar with riding in that area. I just dont see if youre going to ride in a paceline, even as a pro, in your 20s and 30s, eventually youre going to wreck riding in one. Its just a very dangerous activity. Its not a safe activity.

***

Q. Would you[r] opinion be different if you assume these facts. That Mr. Nelms says that he was struck by another bicyclist, that Mr. Crisp says that he struck Mr. Nelms and thats what caused him to hit and go over the handlebars, and that he had no time to apply his brakes. If those facts were true, would your opinion differ?

A. Well, those first of all, those arent facts. Those are fact statements. Witness statements. And no, it wouldnt change my opinion, because it does not line up with the engineering data that Ive already given you in the record. The [*10]
two of them for me to accept the fact witness statement its got to agree with the engineering, and the engineering is not supporting that statement. Its not supporting your hypothetical on Nelms or your hypothetical on Crisp.

Nelms and Long filed motions for summary judgment in April and May 2016, respectively. In September 2016 following a hearing, the Trial Court entered an order granting Defendants motions for summary judgment. In its oral ruling attached to its order, the Trial Court stated in part:

This is obviously a very tragic case, loss of life and just theres nothing that anybody can do to obviously change this. My first thought, as I have read through these things, is that there is no difference here in how this proceeded than a stock car race. Everybody bunched together.

You know, back in the old days, Dale Earnhardt, Sr., would run you off the road, and there you were off the track, and there you were in the wall. But by its very nature, NASCAR granted higher speeds is different, but theyve got steel and helmets and everything else. This type of activity, in a sense, is no different than that.

These gentlemen were riding together. It is very reasonable to [*11]
assume and well, its a fact that its not seriously disputed that an accident, when they are riding this closely together, is certainly foreseeable on everybodys part. And unfortunately, something happened up front that caused people to slow. But as it relates to Mr. Crisp, the Court would have to leap to assumptions in order to say what he did or what he didnt do, and he owed himself a duty of reasonable care to see what was in front of him and to understand his surroundings as well.

It would also as I have understood it and read it and counsel, this Court, as Ive said many times, I cannot guarantee you Im right, but I guarantee you I try to be right. From my reading of the record, from the affidavits, that there is no basis other than sheer speculation that would allow a jury to find for the plaintiff in this case.

In fact, speculation is pretty much all there is in this case. We could allow them to speculate about certain facts, but the ultimate conclusion is, is that these types of accidents are foreseeable in bicycle racing, especially this close type of racing. We see it all the time. We pass them on the highways. Im not taking well, I think I could take judicial [*12]
notice that cyclists in group activities wreck.

And so these parties chose to engage in this activity. They chose to ride together. Theres testimony throughout about what happens when these cyclists are riding together, about drafting, about various movements on the surface that they are cycling on.

And the Court hates to do it, but the Court does not see how any jury could reasonably find that either of these defendants were negligent in the cause the cause in fact or the proximate cause of the tragic accident and injury and ultimate death o[f] Mr. Crisp.

***

[T]he Court also holds that no jury that the actions of Mr. Crisp were at least his actions were at least fifty percent of the cause of his own accident.

In October 2016, Plaintiff filed a motion to alter or amend and a request for findings of fact and conclusions of law. In May 2017, the Trial Court entered an order denying Plaintiffs motion, stating:

After considering the plaintiffs motion and the responses thereto, the Court finds as follows:

1. That the Memorandum Opinion was issued by the Court and incorporated in the Order Granting the Motion for Summary Judgment on September 29, 2016.

2. That the plaintiff mistakenly [*13]
understood the Court to infer that the parties were racing. That was not the intention nor finding of this Court. The Court was merely referencing to the fact that bumper to bumper activities by automobiles or bicycles can lead to disastrous consequences.

3. That the plaintiffs basic position is that she does not know what happened, but that she wants a jury to try this matter.

4. That taken in a light most favorably to the plaintiff, there are no genuine issues of material fact upon which a claim of negligence against the defendants could be found.

5. That the unexplained cause or causes of the accident in question could not require a finding of negligence.

6. That because Mr. Crisp chose to ride in the activity of paceline riding where it is certainly foreseeable that an accident could occur, the Court finds that a reasonable jury would have to find that he was at least 50% liable for his own injuries.

From all of which it is hereby ORDERED, ADJUDGED, AND DECREED that the above, along with the Courts Memorandum Opinion, are the findings and fact and conclusions of law, and that no further hearing on this particular issue shall be considered by the Court, and that this order is hereby [*14]
deemed a final order in all respects. Any remaining court costs are hereby taxed to the plaintiff, for which execution shall issue if necessary.

Plaintiff timely appealed to this Court.

Discussion

We restate and consolidate the issues Plaintiff raises on appeal into the following dispositive issue: whether the Trial Court erred in granting summary judgment to Defendants.

As our Supreme Court has instructed regarding appellate review of a trial courts ruling on a motion for summary judgment:

HN1[] Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Tenn. R. Civ. P. 56.04. HN2[] We review a trial court
s ruling on a motion for summary judgment de novo, without a presumption of correctness. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare—Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471 (Tenn. 2012)). . . .

* * *

HN3[] [I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden [*15]
of production either (1) by affirmatively negating an essential element of the nonmoving partys claim or (2) by demonstrating that the nonmoving partys evidence at the summary judgment stage is insufficient to establish the nonmoving partys claim or defense. We reiterate that HN4[] a moving party seeking summary judgment by attacking the nonmoving partys evidence must do more than make a conclusory assertion that summary judgment is appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving party to support its motion with a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.
Tenn. R. Civ. P. 56.03.
Each fact is to be set forth in a separate, numbered paragraph and supported by a specific citation to the record.
Id. When such a motion is made, any party opposing summary judgment must file a response to each fact set forth by the movant in the manner provided in Tennessee Rule 56.03. HN5[]
[W]hen a motion for summary judgment is made [and] . . . supported as provided in [Tennessee Rule 56], to survive summary judgment, the nonmoving party may not rest upon the mere allegations or denials of [its] pleading, but must respond, and by affidavits or one [*16]
of the other means provided in Tennessee Rule 56, set forth specific facts
at the summary judgment stage
showing that there is a genuine issue for trial.
Tenn. R. Civ. P. 56.06. The nonmoving party
must do more than simply show that there is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The nonmoving party must demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party. HN6[] If a summary judgment motion is filed before adequate time for discovery has been provided, the nonmoving party may seek a continuance to engage in additional discovery as provided in Tennessee Rule 56.07. However, after adequate time for discovery has been provided, summary judgment should be granted if the nonmoving party
s evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the nonmoving party comes forward with at the summary judgment stage, not on hypothetical evidence that theoretically could be adduced, despite the passage of discovery deadlines, at a future trial. . . .

Rye v. Womens Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 2015).

Defendants argue that paceline riding is an inherently risky activity as described [*17]
by the experts and participants, especially for a rider of Decedents age. Nelms argues that Decedent had his own duty to adhere to, as well. Plaintiff argues in response that no rider in a paceline assumes that the person riding in front of him suddenly and inexplicably will slow down. Our initial inquiry is whether a duty of care exists in paceline riding and what the nature of that duty is.

The case of Becksfort v. Jackson is highly instructive. In Becksfort, a woman was injured while participating in a tennis drill at a club. We discussed as follows:

In Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994), our HN7[] Supreme Court abolished implied assumption of the risk as a complete bar to recovery in a negligence action and held that cases involving implied assumption of the risk issues should be analyzed under the principles of comparative fault and the common law concept of duty. The Court stated that the reasonableness of a partys conduct in confronting a risk should be determined under the principles of comparative fault. Attention should be focused on whether a reasonably prudent person in the exercise of due care knew of the risk, or should have known of it, and thereafter confronted the risk; and whether such a person would have [*18]
behaved in the manner in which the plaintiff acted in light of all the surrounding circumstances, including the confronted risk.
Id. at 905.

HN8[] Everyone has a duty to exercise ordinary and reasonable care in light of the surrounding circumstances to refrain from conduct that could foreseeably injure others, and some locations and circumstances may require a higher degree of care than others. White v. Metropolitan Government of Nashville and Davidson County, 860 S.W.2d 49, 51 (Tenn. App. 1993). The term reasonable care must be given meaning in relation to the circumstances. Doe v. Linder Constr. Co., Inc. 845 S.W.2d 173, 178 (Tenn. 1992). HN9[] To establish a claim for negligence a plaintiff must prove: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) injury or loss; (4) causation in fact; (5) and proximate causation. Haynes v. Hamilton County, 883 S.W.2d 606, 611 (Tenn. 1994).

***

[B]y participating in the drill, Ms. Becksfort did not confront or accept the risk that another player would act or play unreasonably. The plaintiff offered proof that Ms. Jackson knew or should have known that Ms. Becksfort was not watching Jacksons ball, and was rather watching only her (Becksforts) ball. The plaintiff also offered proof that Ms. Jackson knew or should have known that the ball was traveling in the direction of the plaintiff. [*19]
Kent Shultz stated in his deposition that during the two ball drill the respective sets of players focused on the ball in play on their half of the court. Mr. Shultz also testified that the shot which Ms. Jackson hit into the eye of the plaintiff was a forehand shot with some power behind it. Ms. Jackson contended in her deposition that (apparently due to the speed at which the ball was traveling) there simply was no time to issue a warning; however, that appears to be a question of fact upon considering all the circumstances involved.

We think there is sufficient evidence to create a genuine issue of material fact as to whether Ms. Jackson acted unreasonably by failing to warn of the errant shot. Based upon this record, reasonable minds could differ as to whether Ms. Jackson acted reasonably under the circumstances. Therefore, this question should be resolved by the trier of fact.

Becksfort v. Jackson, No. 02A01-9502-CV-00027, 1996 Tenn. App. LEXIS 257, 1996 WL 208786, at *2-4 (Tenn. Ct. App. April 30, 1996), no appl. perm. appeal filed.

In Becksfort, we elaborated upon the duty of care in a sports context as follows:

The reason many courts have required a plaintiff to prove reckless or intentional conduct on the part of a defendant in order to recover for injuries sustained in an athletic competition, is that [*20]
these courts have feared that an ordinary negligence standard will increase litigation of sports injuries and stifle athletic competition. See, e.g., Hoke v. Cullinan, 914 S.W.2d 335, 337, 42 12 Ky. L. Summary 33 (Ky. 1995) (A view often expressed is that such a standard promotes sound public policy by allowing redress in extraordinary circumstances without permitting fear of litigation to alter the nature of the game.); Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, 710 (Cal. 1992) (The courts have concluded that vigorous participation in sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.). We do not share these courts concerns with respect to the imposition of an ordinary negligence standard in cases of sports related injuries, because we think that the recognition that the reasonableness of a persons conduct will be measured differently on the playing field than on a public street, will sufficiently prevent the stifling of athletic competition. We also note that the reasonableness of a persons conduct will be measured differently depending upon the particular sport involved and the likelihood and foreseeability of injury presented by participation in the particular sport. What is reasonable, acceptable, and [*21]
even encouraged in the boxing ring or ice hockey rink, would be negligent or even reckless or intentional tortious conduct in the context of a game of golf or tennis. We should not fashion a different standard of care for each and every sport. We simply recognize that the reasonable conduct standard of care should be given different meaning in the context of different sports and athletic competitions.

Becksfort, 1996 Tenn. App. LEXIS 257, 1996 WL 208786, at *3 n. 4.

In the present case, we respectfully disagree with the apparent position of the Trial Court and Defendants that to participate in paceline riding is to assume the risk of whatever dangerous conduct, however unreasonable, is engaged in by the participants. Many years ago, our Supreme Court abolished implied assumption of the risk as a complete bar to recovery. We decline Defendants invitation to essentially resurrect implied assumption of the risk through a special carve-out exception. Inherently risky or not, a paceline rider still has a duty of care to her fellow riders. For instance, while wrecks can and do happen, a paceline rider has a duty to refrain from abruptly applying her brakes or from hitting the wheel of the rider of front of her without good reason. We conclude that each [*22]
paceline rider in the instant case had a duty to act reasonably under the circumstances.

Having concluded that the paceline riders owed a duty of care, it remains to be established in this case at the summary judgment stage whether that duty was breached and by whom. That is problematic because there are conflicting accounts as to what happened. Chiefly, it never has been established how Nelms came to collide with Longs bicycle. Nelms states that Long suddenly slowed down. Long disputes this. Nelms and Long are, therefore, at odds in their accounts. This is not a trivial dispute but rather goes to the heart of the case—whether a breach of duty occurred and, if so, by whom. This is what juries often are called on to decide in a negligence case where comparative fault is alleged. There are genuine issues of material fact as to whether Defendants acted reasonably under the circumstances, and the issue of fault allocation, if any, should be resolved by the trier of fact. We take no position on the merits of the question, only that it remains a question suitable for trial.

The Trial Court, in its order denying Plaintiffs motion to alter or amend, also stated: [B]ecause [Decedent] chose [*23]
to ride in the activity of paceline riding where it is certainly foreseeable that an accident could occur, the Court finds that a reasonable jury would have to find that he was at least 50% liable for his own injuries. This is a puzzling and unsupported finding. There were five participants in the paceline group at issue, and three of those were involved in the crash. If Decedent is presumed to be at least 50% responsible for his own accident simply for participating in paceline riding, then the other riders involved in the crash also must be at least 50% responsible simply by participating. The math does not add up as, naturally, one cannot exceed 100% in an allocation of fault. Finding or holding that someone who participates with others in an inherently dangerous activity must be at least 50% at fault if he is injured is, once again, an attempt to resurrect the defense of assumption of the risk. We decline to do so.

As genuine issues of material fact remain unresolved in this case, summary judgment is inappropriate. We reverse the judgment of the Trial Court and remand for further proceedings.

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the [*24]
Trial Court for collection of the costs below and for further proceedings consistent with this Opinion. The costs on appeal are assessed one-half equally against the Appellees, Michael Nelms and George Long.

D. MICHAEL SWINEY, CHIEF JUDGE


Even hikers sue for their injuries.

Although I would guess this is a subrogation claim because the plaintiff is now a quadriplegic.

Citation: Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

State: California, United States District Court, C.D. California

Plaintiff: Jill and Scott Kalter

Defendant: Grand Circle Travel

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: for the defendant

Year: 2009

Summary

The plaintiff fell trying to climb wet stone steps in Machu Pichu. She sued the travel agency she hired to take her there and lost. Climbing wet stones is an open and obvious risk and the doctrine of assumption of the risk prevented the plaintiff’s recovery.

Facts

Grand Circle is a tour operator that arranges vacation packages to destinations around the world. Jill Kalter (” Kalter” ) purchased a Grand Circle ” Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the ” Itinerary” ), which stated that her group would visit Machu Picchu on two consecutive days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. The Itinerary also stated: ” [t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” Kalter received and read the itinerary prior to departing on her trip. In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park. The map includes a section entitled ” Visit Regulations,” which states, among other things, ” Do not climb the walls,” and ” Follow only designated routes according to arrows.”

It was raining on both days Kalter was at Machu Picchu. The first day, she remained with Cardenas and walked on the stone paths The second day, she opted to explore on her own, and ventured off the established paths. states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. Kalter states that she did not hear Cardenas give these warnings, but that she ” has no reason to doubt” that he did so. Kalter went to an area known as the ” terraces,” filled with vertical rock walls that contain small stone protrusions called ” floating steps.” Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. Kalter did not think this was a dangerous act. As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.

The defendant moved for summary judgment, which was granted.

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

The defense raised by the plaintiff’s was assumption of the risk.

The doctrine of primary assumption of the risk applies where ” the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. The question turns on whether the plaintiff’s injury is within the ” inherent” risk of the activity. A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Accordingly, ” the doctrine of primary assumption of risk applies where ‘ conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries ” if the defendant ‘ engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.”

However…

If, on the other hand, ” the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the risk applies, which is analyzed under comparative fault principles.

The court found that inherent in the activity of hiking on uneven terrain among ancient ruins is the risk of falling and becoming injured.

The court then looked at the information the plaintiff received prior to going to Machu Picchu.

The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu ” are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus ” alter the fundamental nature of the activity.”

…Kalter did not fall while engaging in the activities condoned by Defendants-she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu.

The defendant would be liable for the plaintiff’s injuries only if the defendant’s conduct was so reckless as to be totally outside the range of the ordinary activity involved in hiking among ancient ruins or uneven terrain.

The plaintiff argued that the defendant was liable for encouraging the plaintiff to roam the ruins on her own.

…Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not ” so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region.

The next issue was whether or not the defendant had a duty to warn the plaintiff of the dangers equally obvious to both the plaintiff and others. The plaintiff admitted it was raining and admitted the steps were wet. The map she received told her not to climb the walls.

The court found the risks of the floating steps the plaintiff climbed leading to her fall were open and obvious, and she assumed the risk when climbing on them. “Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customer’s encounter on trips.” Consequently, the defendant had no duty to warn the plaintiff of the dangers of climbing on the steps that lead to her fall.

The court held for the defendant.

As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s injuries because the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall.

So Now What?

The plaintiff was a quadriplegic, so I suspect here health or disability insurance carrier started the lawsuit to recover the paid on behalf of the plaintiff. Alternatively, the plaintiff could have started the litigation because so much money was involved if they won that it might have been a lottery.

However the simple fact the plaintiff fell while on her own exploring, a ruin in Peru does not give rise to liability in this case.

What keeps coming to the surface in cases over the past couple of years is the defense of assumption of the risk. Looking at this from a different perspective. The more you educate your client, the less likely you will be sued and the less likely you will lose that lawsuit.

I’ve been saying that for more than thirty years, and it seems to come back with greater defenses and benefits for both the guests and the outfitters.

What do you think? Leave a comment.

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

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