Weird attempt to recover damages against a youth sports organization for actions of youth on his own
Posted: August 17, 2020 Filed under: Illinois, Minors, Youth, Children | Tags: Baseball, Coaches, Foreseeability, Interstate, players, raffle, Responsibility, Supervision, team, tickets, Volunteer Adult Leader, Volunteer Coach, Youth, Youth Sports, Youth Supervision Leave a commentJust a look at how far some plaintiffs, (or an insurance company) will go to recover money. At the same time, it is nice to know that they lost this attempt.
State: Illinois, Appellate Court of Illinois, Fifth District
Plaintiff: Jimmy Loosier, a Minor, by Joyce Loosier, his Mother
Defendant: Youth Baseball and Softball, Inc
Plaintiff Claims: negligence and punitive damages
Defendant Defenses: no duty
Holding: for the defendant
Year: 1986
Summary
Non-profit youth organization is not responsible for youth in its program when they are on their own selling tickets for the organization to raise money. Parents are responsible for their kids, unless the youth organization takes steps to be responsible.
Facts
This cause of action arose out of personal injuries suffered by the minor plaintiff when he was struck by a truck while trying to cross Interstate Route 57 west of Benton. Plaintiff filed suit alleging that defendant was negligent in that it was guilty of a breach of a duty owed the plaintiff to supervise, watch over, and care for the plaintiff while the plaintiff was selling baseball raffle tickets.
The defendant, Youth Baseball and Softball, Inc., is a not-for-profit organization which raises funds through raffle ticket sales. Each year prizes are given to the baseball participants who sell the most raffle tickets. The minor plaintiff, Jimmy Loosier, was a member of a baseball team which was under the supervision of the defendant’s summer baseball program. Members of the baseball team participated voluntarily with their parents’ permission in the sale of raffle tickets to give away a new automobile as a means of financing the costs of the baseball program.
The raffle tickets were issued to the coaches who then issued tickets to the players to be sold by them. The tickets were initial
distributed in lots of 10 to each child by the team coach. After the children sold their initial 10 tickets, they could get more tickets on
with their parents’ permission. After the initial 10 tickets were issued to a child, Youth Baseball did not issue any more tickets to the children but, rather, gave them to the children’s parents when their parents asked for additional tickets. Selling the raffle tickets was pure
the voluntary decision of each child and his parents. If a child did not participate in the fund-raising activities, the child lost no privileges.
Youth Baseball warned the children, upon distributing the initial 10 raffle tickets to each child who participated, not to sell them by themselves and not to go out without their parents’ permission. Although some individual coaches took their baseball players out to sell tickets periodically, it was understood that the overall duty of supervision lay with the child’s parents and not with Youth Baseball.
The plaintiff, Jimmy Loosier, was 11 years old at the time of his injury on July 22, 1982. He had been selling raffle tickets for the youth Baseball program for four years when the accident occurred. When Loosier first began selling raffle tickets his mother warned him about places he should not go, people he should not sell to, and streets and highways he should avoid. She had instructed him to stop, look and listen when crossing streets. The minor plaintiff had also been instructed in safety on highway crossing at school.
On July 22, 1982, plaintiff went to the Wal-Mart store, which was approximate two miles from his home and across Interstate Route 57, west of Benton. Prior to the accident, Jimmy Loosier had gone to the shopping mall where the Wal-Mart store is located on his own or with his friends 10 to 20 times in order to sell raffle tickets or just to “goof off.” The majority of the times the plaintiff had gone to Wal-Mart to sell tickets, he had gone without adult supervision. Jimmy’s mother knew when he went out to the mall by himself or with his friends and that there was no adult with them.
On the particular day the plaintiff was injured while crossing Interstate Route 57, he informed his mother he was going to Wal-Mart to sell raffle tickets. However, another reason plaintiff wanted to go to Wal-Mart that day was to simply “get out of the house” because he was bored. Mrs. Loosier saw that Jimmy had his little black bag with the tickets when he left the house. She knew that Youth Baseball was not providing people to accompany her son whenever he went to sell tickets; yet, she permitted him to sell the tickets anyway.
After arriving at the mall the plaintiff sold seven or eight tickets. Then Johnny Hines and some other kids asked Loosier to steal a “hot wheels car” from Wal-Mart. When Loosier refused, they said they were going to “beat the heck out” of plaintiff if he didn’t. Loosier then left Wal-Mart. While he was standing out in the parking lot, Loosier saw the other kids coming outside so he began running. As he was running, he could see Hines and the other children following him on bikes. Loosier ran toward Interstate 57 and made it safe across the southbound lanes of the interstate. When he was in the middle of the northbound portion of the interstate, he saw a semi-truck approaching. He slid and then started to scoot back up and the truck ran over his leg.
Analysis: making sense of the law based on these facts.
The plaintiff argued the organization owed the youth a duty of supervision while he was selling tickets. The trial court disagreed and dismissed the case resulting in this appeal. The court then reviewed a negligence claim in detail as required in Illinois.
The first requirement, even before duty is that the parties have a relationship.
It is fundamental that there can be no recovery in tort for negligence unless the defendant has committed a breach of duty owed to the plaintiff. Whether under the facts of a given case, such a relationship exists between the parties so as to require a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. In the absence of any showing upon which the court could infer the existence of a duty, no recovery is possible as a matter of law and summary judgment in favor of the defendant is proper.
If the law imposes a duty on the defendant, it must be based on the likelihood of the injury versus the burden of guarding against it. A quasi balancing test to some extent. Foreseeability is determined after the court as determined there is a duty.
“Whether a defendant should have ‘foreseen’ harm to a party injured is the test to be used by a jury in determining negligence. ‘Foreseeability’ enters into the negligence format only after the court has concluded that, at the time of the occurrence in question, the defendant was under a duty to guard against injury to the plaintiff
There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case, but the only factors for the jury to consider in determining the negligence issue are expressed in the foreseeability formula.
The court then examined the facts in this case and applied the law it had stated.
Youth Baseball provides a service to the community by sponsoring sports activities for young people without charge and it raises money for these activities by the sale of raffle tickets by its members on a voluntary basis. The sale of tickets is done only with parental permission. Ticket sales are made by the players at times other than when they are under the supervision of the coaches on the playing field. In fact, the ticket sales are made by the youths who participate in the program at any time when they are not either playing or practicing.
The court, to some extent, applied a balance test here looking at the likelihood of the injury to the burden of guarding against the injury.
We find that public policy does not require that citizens, who do volunteer work in coaching baseball and softball teams, provide supervision of all team members at the time when a team member is engaged in the activity of selling a raffle ticket. We find that the contrary is dictated by public policy, because such a requirement would impose an unreasonable burden upon those who operate and sponsor the Youth Baseball program.
The court determined it was impossible and burdensome to require the youth program to supervise the minors at all hours of the day and night. The burden of care lies with the parents. The court then reviewed the facts where the burden or duty of care in this case had always remained with the parents.
In the case at bar, we find that the care and control of the minor was with his parents. At the time of the accident the care of the minor had not been entrusted to youth Baseball. Loosier was selling tickets with the consent of his parents. He had gone to the shopping center with his friends with his mother’s permission to sell tickets which were obtained from the defendant by his father.
The only involvement of the defendant had been providing the tickets, which required the permission of the parents. There was no duty of supervision that could be placed on the defendant.
So Now What?
Those reading this article is a constant reminded that parents (and/or guardians) have the total control over their children. You as a coach, youth leader or volunteer must always make sure that you never do anything to imply that you are removing that duty from the parents, if you do, you are, then liable for the actions of the youth.
The more parental involvement in a program, the less likely the program will be sued because there is never any doubt that the parents have not relinquished their duty to supervise and control their children.
As a volunteer or even paid adult working with youth, you must constantly reinforce that you are acting with the parent’s permission, but they have the total control of the acts and situation and can revoke that permission at any time.
What do you think? Leave a comment.
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Loosier v. Youth Baseball and Softball, Inc., 142 Ill. App. 3d 313, 491 N.E.2d 933, 1986 Ill. App. LEXIS 2062, 96 Ill. Dec. 654
Posted: July 30, 2020 Filed under: Illinois, Minors, Youth, Children | Tags: Baseball, Coach, Coaches, Foreseeability, Interstate, No Duty, players, raffle, Supervision, team, tickets, Volunteer Youth Leader, Youth, Youth Baseball, Youth Organization 1 CommentLoosier v. Youth Baseball & Softball, Inc., 142 Ill. App. 3d 313, 491 N.E.2d 933, 1986 Ill. App. LEXIS 2062, 96 Ill. Dec. 654
Appellate Court of Illinois, Fifth District
April 11, 1986, Filed
No. 5-84-0640
Counsel: Carroll L. Owens, of Benton, for appellant.
Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellee.
Judges: PRESIDING JUSTICE KASSERMAN delivered the opinion of the court. KARNS, J., concurs. JUSTICE HARRISON, specially concurring.
[*313]
[**934]
[****655] This cause of action arose out of personal injuries suffered by the minor plaintiff when he was struck by a truck while trying to cross Interstate Route 57 west of Benton. Plaintiff filed suit alleging that [*314] defendant was negligent in that it was guilty of a breach of a duty owed the plaintiff to supervise, watch over, and care for the plaintiff while the plaintiff was selling baseball raffle tickets.
The defendant, Youth Baseball and Softball, Inc., is a not-for-profit organization which raises funds through raffle ticket sales. Each year prizes are given to the baseball participants who sell the most raffle tickets. The minor plaintiff, Jimmy Loosier, was a member of a baseball team which was under the supervision of the [***2] defendant’s summer baseball program. Members of the baseball team participated voluntarily with their parents’ permission in the sale of raffle tickets to give away a new automobile as a means of financing the costs of the baseball program.
The raffle tickets were issued to the coaches who then issued tickets to the players to be sold by them. The tickets were initially distributed in lots of 10 to each child by the team coach. After the children sold their initial 10 tickets, they could get more tickets only with their parents’ permission. After the initial 10 tickets were issued to a child, Youth Baseball did not issue any more tickets to the children but, rather, gave them to the children’s parents when their parents asked for additional tickets. Selling the raffle tickets was purely the voluntary decision of each child and his parents. If a child did not participate in the fund-raising activities, the child lost no privileges.
Youth Baseball warned the children, upon distributing the initial 10 raffle tickets to each child who participated, not to sell them by themselves and not to go out without their parents’ permission. Although some individual coaches took their baseball [***3] players out to sell tickets periodically, it was understood that the overall duty of supervision lay with the child’s parents and not with Youth Baseball.
The plaintiff, Jimmy Loosier, was 11 years old at the time of his injury on July 22, 1982. He had been selling raffle tickets for the youth Baseball program for four years when the accident occurred. When Loosier first began selling raffle tickets his mother warned him about places he should not go, people he should not sell to, and streets and highways he should avoid. She had instructed him to stop, look and listen when crossing streets. The minor plaintiff had also been instructed in safety on highway crossing at school.
On July 22, 1982, plaintiff went to the Wal-Mart store, which was approximately [**935]
[****656] two miles from his home and across Interstate Route 57, west of Benton. Prior to the accident, Jimmy Loosier had gone to the shopping mall where the Wal-Mart store is located on his own or with his friends 10 to 20 times in order to sell raffle tickets or just to “goof off.” The majority of the times the plaintiff had gone to Wal-Mart [*315] to sell tickets, he had gone without adult supervision. [***4] Jimmy’s mother knew when he went out to the mall by himself or with his friends and that there was no adult with them.
On the particular day the plaintiff was injured while crossing Interstate Route 57, he informed his mother he was going to Wal-Mart to sell raffle tickets. However another reason plaintiff wanted to go to Wal-Mart that day was to simply “get out of the house” because he was bored. Mrs. Loosier saw that Jimmy had his little black bag with the tickets when he left the house. She knew that Youth Baseball was not providing people to accompany her son whenever he went to sell tickets; yet, she permitted him to sell the tickets anyway.
After arriving at the mall the plaintiff sold seven or eight tickets. Then Johnny Hines and some other kids asked Loosier to steal a “hot wheels car” from Wal-Mart. When Loosier refused, they said they were going to “beat the heck out” of plaintiff if he didn’t. Loosier then left Wal-Mart. While he was standing out in the parking lot, Loosier saw the other kids coming outside so he began running. As he was running, he could see Hines and the other children following him on bikes. Loosier ran toward Interstate 57 and made it safely [***5] across the southbound lanes of the interstate. When he was in the middle of the northbound portion of the interstate, he saw a semi-truck approaching. He slid and then started to scoot back up and the truck ran over his leg.
The plaintiff alleges that Youth Baseball owed a duty of supervision to him at the time and occasion of his injury. The trial court granted defendant’s motion for summary judgment, finding that Youth Baseball owed no duty to Loosier under the circumstances because the injuries to Loosier did not arise out of a time in which raffle tickets were being sold due to the fact that the sale of tickets had effectively been terminated prior to the activity which led to the plaintiff’s injuries. Plaintiff appealed from that portion of the trial court’s order. The trial court further held that the complaint stated a cause of action in that Youth Baseball had a duty to provide supervision for raffle ticket sales. Youth Baseball cross-appealed from this portion of the trial court’s order.
The first issue we must determine is whether the trial court appropriately granted defendant’s motion for summary judgment on the grounds that Youth Baseball had no duty to exercise [***6] ordinary care for Loosier under the circumstances of the instant case.
It is fundamental that HN1[
] there can be no recovery in tort for negligence unless the defendant has committed a breach of duty owed to the plaintiff. Whether under the facts of a given case, such a relationship [*316] exists between the parties so as to require a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1045, 462 N.E.2d 502, 505.) In the absence of any showing upon which the court could infer the existence of a duty, no recovery is possible as a matter of law and summary judgment in favor of the defendant is proper. Keller v. Mols (1984), 129 Ill. App. 3d 208, 210, 472 N.E.2d 161, 163.
Whether the law imposes a duty upon a defendant for injuries to a plaintiff does not depend upon the factor of foreseeability alone but rather the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant must also be taken into account. (Cf. Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) [***7] In the case at bar the same standard applies for imposition of a legal duty which we set forth in Zimmermann. [**936]
[****657] As we noted in Zimmermann, the existence of a legal duty is not dependent on the factor of foreseeability but requires consideration of public policy and social requirements. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1047, 462 N.E.2d 502, 506.) In Zimmermann we stated as follows:
HN2[
] “Whether a defendant should have ‘foreseen’ harm to a party injured is the test to be used by a jury in determining negligence. ‘Foreseeability’ enters into the negligence format only after the court has concluded that, at the time of the occurrence in question, the defendant was under a duty to guard against injury to the plaintiff.” 122 Ill. App. 3d 1042, 1048, 462 N.E.2d 502, 507.
Continuing, we stated further:
“‘The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case, but the only factors for [***8] the jury to consider in determining the negligence issue are expressed in the foreseeability formula.’ Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18.” ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1048, 462 N.E.2d 502, 507, citing Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E. 2d 307.)
In Zimmermann we clarified the role of “foreseeability of harm” and the fact that it enters the negligence format only after the court determines that at the time of the occurrence in question there existed [*317] a duty on the part of the defendant to guard against injury to plaintiff. We additionally analyzed the policy basis of duty in Zimmermann. Quoting from Professor Prosser regarding the policy foundation of duty, we stated:
HN3[
] “‘”[D]uty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say the particular plaintiff is entitled to protection.
[T]he courts have merely ‘reacted to the situation in the way in which the great mass of mankind customarily react,’ and that as our ideas of human relations change the law as to duties has changed with [***9] them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.’ (Prosser, Torts sec. 54, at 326-27 (4th ed. 1971).)” 122 Ill. App. 3d 1042, 1053, 462 N.E.2d 502, 510.
Using the foregoing analysis which we set forth in Zimmermann as our guide, we turn to the consideration of the issue of whether Youth Baseball owed a duty to Loosier to protect him from injury at all times when he might sell a raffle ticket or be enroute to sell a raffle ticket. Consideration of this issue depends on public policy considerations and not merely foreseeability as we noted in Zimmermann.
To the extent that public policy enters into the analysis, no reasons sounding in public policy would require that a duty of continuous protection be imposed. Youth Baseball [***10] provides a service to the community by sponsoring sports activities for young people without charge and it raises money for these activities by the sale of raffle tickets by its members on a voluntary basis. The sale of tickets is done only with parental permission. Ticket sales are made by the players at times other than when they are under the supervision of the coaches on the playing field. In fact, the ticket sales are made by the youths who participate in the program at any time when they are not either playing or practicing. [**937]
[****658] We find that public policy does not require that citizens, who do volunteer work in coaching baseball and softball teams, provide supervision of all team members at the time when a team member is engaged in the activity of selling a raffle ticket. We find that the contrary is dictated by public policy, because [*318] such a requirement would impose an unreasonable burden upon those who operate and sponsor the Youth Baseball program.
While defendant has a duty to supervise the activity of baseball and softball games while the players are on the field actively participating in the sport and entrusted by their parents to their [***11] coaches, we are unwilling to conclude that they are required to supervise those same players at any hour of the day or night when they might decide to sell a raffle ticket while they are under the care of their parents. Under the circumstances of the case at bar, public policy is best served by placing the burden of the care of the children upon their parents who permit them to participate in the raffle ticket sales. In the case at bar, we find that the care and control of the minor was with his parents. At the time of the accident the care of the minor had not been entrusted to youth Baseball. Loosier was selling tickets with the consent of his parents. He had gone to the shopping center with his friends with his mother’s permission to sell tickets which were obtained from the defendant by his father. The only involvement of Youth Baseball was that it had provided the tickets that Loosier was selling with the permission of and while in the care of his parents. Under these circumstances, we find that Youth Baseball had no duty of supervision and affirm the trial court’s entry of summary judgment in defendant’s favor.
As an aside, we note that if foreseeability were to play [***12] a rule in the determination of duty, it is not reasonable or likely that a boy going to a shopping center with his teammates to sell raffle tickets will be requested by one of those teammates to steal from the store in which they are selling tickets; that when he refuses his teammates will threaten to beat him for not stealing; that his teammates will then chase him; and that in the chase he will run across an interstate highway and be struck by a truck. We find that the likelihood of such an occurrence was not even remotely foreseeable.
In addition to finding that Youth Baseball owed no duty to Loosier under the circumstances of this case, resulting in the entry of a summary judgment in defendant’s favor, the trial court further found that Youth Baseball owed a duty to Loosier to provide supervision of raffle ticket sales, even though it did not define under what circumstances such a duty would exist. Defendant Youth Baseball cross-appealed from this portion of the trial court’s order.
The defendant points out that the single issue before the trial court in the Motion for Summary Judgment was: “Did Youth Baseball owe a duty to Loosier to take measures to protect him from the injury [***13] he received as a result of the described occurrence?” The trial [*319] court determined the answer to that question was no. The defendant notes however that in its order the court seemed to indicate that there would be some other circumstances when the plaintiff would be actively engaged in the sale of tickets under which a duty would be owed. We agree with the defendant that this finding of the trial court was erroneous inasmuch as it did not define under what circumstances such a duty would exist. HN4[
] Liability for negligence is predicated upon the requirement that a defendant use reasonable and ordinary care to protect a plaintiff under the circumstances in question. ( Sims v. Chicago Transit Authority (1954), 4 Ill. 2d 60, 122 N.E.2d 221.) As we noted in Zimmermann, the courts in Illinois frequently have been called upon in negligence cases to determine whether a duty exists under the specific facts presented. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1046, 462 N.E.2d 502, 505-06.) HN5[
] Although the issue regarding duty is broad in its implication, a duty, when created as a matter of law, is required to have a particular set of [**938]
[****659]
[***14] circumstances as a basis for its creation. In the case at bar, the trial court held that there may be some other circumstances under which the plaintiff would be actively engaged in the sale of tickets under which a duty would be owed by the defendant. We conclude that such portion of the trial court’s order is erroneous inasmuch as the court appears to hold that a duty to use due care may arise under circumstances not presented to it for determination.
Concluding, we find that the trial court appropriately found that Youth Baseball owed no duty to exercise ordinary care for the plaintiff under the circumstances of the case at bar; consequently, that portion of the trial court’s order is affirmed. Furthermore, we reverse that portion of the trial court’s order which denied defendant’s motion to dismiss plaintiff’s complaint inasmuch as it was not based upon circumstances present in the case at bar.
Affirmed in part, reversed in part.
JUSTICE HARRISON, specially concurring.
Although I agree with the result reached in the majority opinion, I cannot accept the majority’s unwillingness to recognize the relevance of foreseeability regarding the duty question for [***15] the reasons discussed in the dissenting opinion in Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1054-56, 462 N.E.2d 502, 511-12 (Harrison, J., dissenting).
Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?
Posted: March 25, 2019 Filed under: Assumption of the Risk, Minnesota, Skier v. Skier, Skiing / Snow Boarding | Tags: appreciated, assume a risk, ball, Baseball, Collisions, Court of Appeals, district court, doctrine, Downhill, flying, Hazard, Hockey, injuries, instructor, Law, participants, patron's, Primary Assumption of Risk, recreational, rider's, secondary assumption, Skating, skier collision, skier v. skier, skier's, skiing, Snowboarder v. Skier, snowboarding, Snowmobiling, Spectator, Sport, Summary judgment, trick Leave a commentNSSA website that describes skiing as safe if done under control contributes to the reasoning that skiers should be able to sue other skiers in a sport.
Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)
State: Minnesota; Supreme Court of Minnesota
Plaintiff: Julie A. Soderberg
Defendant: Lucas Anderson
Plaintiff Claims: Negligence
Defendant Defenses: Primary Assumption of the Risk
Holding: For the Plaintiff
Year: 2019
Summary
Primary Assumption of the Risk does not apply to collisions between skiers on the slopes in Minnesota. Any collision between two people using a ski area will now result in lawsuits.
The Minnesota Supreme Court believed that skiing, and snowboarding were not inherently dangerous because they could be done with common sense and awareness to reduce the risk, as quoted from the NSAA website.
Facts
On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.
When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.
Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.” Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.
Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.
As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.
Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law.
Analysis: making sense of the law based on these facts.
The court first looked at Assumption of the risk and the differences between Primary Assumption of the Risk and Secondary Assumption of the Risk.
Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.
By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Therefore, primary assumption of risk precludes liability for negligence, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'”
The court found the ski instructor did not assume the risk of being hit. “Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So, the issue is whether she assumed the risk by implication.”
This first step in the analysis, that the ski instructor did not assume the risk of being hit, which the defense agreed to, sealed the fate of the decision. I think now days; most people consider the risk of a collision to be possible on the slopes.
So, the court then went through the history of primary assumption of the risk in Minnesota and how it was applied in baseball, skating and other sports. It then related why it has not applied primary assumption of the risk to snowmobiling.
Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity.
The court found that although skiers do collide with each other, it is not so frequent that it is considered an inherent risk of the sport.
First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .”
The National Ski Area Association, (NSAA) has this statement on their website:
Common Sense, it’s one of the most important things to keep in mind and practice when on the slopes. The National Ski Areas Association (NSAA) believes education, helmet use, respect and common sense are very important when cruising down the mountain. NSAA developed Your Responsibility Code to help skiers and boarders be aware that there are elements of risk in snowsports that common sense and personal awareness can help reduce.
The National Ski Patrol, which probably has a better understanding of the risks of skiing does not have that statement on its website. The good news is both the NSAA, and the NSP now at least have the same code on their websites. That was not true in the past.
The court then stated it just did not want to extend primary assumption of the risk to another activity.
Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.”
Finally, the court stated that it did not believe this decision would lead to fewer Minnesotans skiing. It will, but not by much. However, what it will do will be to increase litigation amount skiers and boarders. And if you are looking at going to a state to ski, knowing you can be sued if you hit someone else on the slopes might have you ski in another state.
Minnesota now joins Colorado in having billboards you can see leaving the ski areas asking if you have been hurt while skiing.
So Now What?
The court used an interesting analysis coupled with language from the NSAA website to determine that skiing was like snowmobiling and totally controllable, therefore, it was not a sport where you assume the risk of your injuries.
This is a minority opinion. Something this court did not even consider in its opinion. Most states you assume the risk of a collision. This decision was clearly written to increase the litigation in the state.
What do you think? Leave a comment.
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Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357
Posted: March 9, 2015 Filed under: Legal Case, New Jersey | Tags: Baseball, Coach, Volunteer, Volunteer Immunity Leave a commentByrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357
George C. Byrne, JR., A Minor by his Guardian Ad Litem, Francine Byrne, and Francine Byrne, Individually, Plaintiffs-Appellants, v. Fords-Clara Barton Boys Baseball League, Inc., Defendant, and Dennis Bonk, Defendant-Respondent
No. A-4172-88T2
Superior Court of New Jersey, Appellate Division
236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357
September 19, 1989, Argued
October 4, 1989, Decided
COUNSEL: James J. Dunn argued the cause for appellants (Levinson, Axelrod, Wheaton & Grayzel, attorneys; Richard J. Levinson, of counsel; Richard J. Levinson and James J. Dunn, on the brief).
Salvatore P. DiFazio argued the cause for respondent (Golden, Rothschild, Spagnola & DiFazio, attorneys).
JUDGES: Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.
OPINION BY: PRESSLER
OPINION
[*186] [**1223] In evident response to the increasing cost of liability insurance and, in some instances the unavailability of liability insurance, for volunteer athletic coaches, managers and officials of nonprofit sports teams, 1 the Legislature, by L. 1986, c. 13, adopted N.J.S.A. 2A:62A-6, amended by L. 1988, c. 87, which affords those volunteers immunity from tort liability subject to the conditions and exceptions specified therein. This appeal from a summary judgment requires us to construe paragraph (c) of the Act, which conditions the availability of the immunity, to some degree at least, upon the volunteer’s participation in a safety and training program.
1 See, e.g., Legislative Summaries: Sports Law, 10 Seton Hall Legis. J. 332 (1987).
[***2] The facts relevant to the issue before us are not in dispute. In the spring of 1986, plaintiff George C. Byrne, Jr., then 11 years old, was enrolled in the Fords-Clara Barton Baseball League, Inc. The League, while not affiliated with Little League Baseball, Inc., is nevertheless similarly organized, structured and conducted, offering inter-team competitions for similarly aged youngsters. Defendant Dennis Bonk was the coach of the team to which the infant plaintiff was assigned. On May 13, 1986, the day after the effective date of N.J.S.A. 2A:62A-6, Bonk instructed plaintiff to “warm-up” the pitcher. [*187] Although plaintiff was wearing most of the catcher’s special protective gear, he was not, in violation of the League’s rules, wearing a catcher’s mask. During the warm-up, he was struck in the eye by a pitched ball, sustaining the injury which is the gravamen of this complaint. The complaint charged Bonk both with ordinary negligence and with “willful, wanton, reckless and gross” negligence.
Bonk’s motion for summary judgment dismissing the complaint as to him relied on N.J.S.A. 2A:53A-7 (charitable immunity) as well as on N.J.S.A. 2A:62A-6. The trial judge [***3] ruled that N.J.S.A. 2A:53A-7 was inapplicable to the claim against Bonk, as opposed to the League, because of its express exception of “agents or servants” from the immunity it affords. Bonk does not challenge that ruling on this appeal.
With respect to the applicability of N.J.S.A. 2A:62A-6, both plaintiff and this defendant relied on paragraph (c), which prior to its 1988 amendment provided in full as follows:
[HN1] Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.
At least for purposes of the summary judgment motion, Bonk conceded that he had never participated in a safety orientation or training program, and the reason he had not was the League’s failure to have established one.
The issue then is whether paragraph (c), as originally adopted, required participation as a condition of immunity only if the league or team had established a safety and training program or if, to the contrary, the [***4] legislative intention was to mandate the establishment of a program as a quid pro quo, as it were, for the immunity, thus granting it only to those volunteers who had actually participated in such a program. [**1224] The trial court judge declined to read the statute as requiring the establishment of a safety and training program for volunteers, concluding therefore that a volunteer who had had no [*188] training in safety because there was no program for him to attend was fully entitled to the statutory immunity. Accordingly, it entered partial summary judgment dismissing the ordinary negligence claims against Bonk. 2 We granted plaintiff’s motion for leave to appeal and now reverse.
2 The trial judge did not rule on the wanton and gross negligence claims, concluding that questions of fact were involved, and defendant did not seek leave to cross-appeal from that determination. It is therefore not before us. See R. 2:5-6(b).
The direct legislative history is both sparse and inconclusive. The bill, A-2398, [***5] which was finally adopted as L. 1986, c. 13, had been first introduced and passed in the Assembly, whose version of paragraph (c) excepted only willful, wanton, or grossly negligent acts. The provision respecting safety and training programs was added by the Senate in its version of the bill, S-1678, which also added paragraphs (d), (e) and (f), all of which further limit and condition the immunity afforded by the Assembly bill. 3 The Statement accompanying the Senate version is not particularly helpful in construing its intention since, in explaining the addition to paragraph (c), it uses exactly the same verbiage as the statutory text.
3 Paragraph (d) makes the immunity inapplicable “to any person causing damage as the result of his negligent operation of a motor vehicle.” Paragraph (e) withholds the immunity from a person “permitting a sport competition or practice to be conducted without supervision.” Paragraph (f) makes clear the Act’s inapplicability to school coaches, managers, and officials.
[***6] We recognize that there is an ambiguity in the manner in which the operative clause of paragraph (c) was drawn. Normally that ambiguity would have required us to determine, without benefit of express legislative explication, whether the general legislative purpose to accord the immunity was meant to prevail over the safety concerns expressed by that paragraph or not. We need not, however, engage in that debate since the Legislature, by its 1988 amendment of paragraph (c), left no doubt that its original intent had been to condition the immunity [*189] upon the volunteer’s actual participation in an appropriate program. 4
4 The trial court apparently did not consider the effect of the 1988 amendment and its legislative history on this interpretation problem of the 1986 Act. Nor did either counsel bring the amendment to the attention of the trial court or this court.
By L. 1988, c. 87, the originally adopted single-section paragraph (c) was replaced by this two-section paragraph (c):
[HN2] (1) Nothing [***7] in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training skills program which program shall include but not be limited to injury prevention and first aid procedures and general coaching concepts.
(2) A coach, manager, or official shall be deemed to have satisfied the requirements of this subsection if the safety orientation and skills training program attended by the person has met the minimum standards established by the Governor’s Council on Physical Fitness and Sports in consultation with the Bureau of Recreation within the Department of Community Affairs, in accordance with rules and regulations adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.).
The 1988 version does more than define, qualify, and standardize the prescribed safety program. In our view, the text of paragraph (c)(2), in its reference to a volunteer being “deemed to have satisfied the requirements of this subsection” (emphasis added), makes plain that actual program [***8] attendance is the unequivocal prerequisite for entitlement to the immunity. We are further persuaded that this was the legislative intention from the outset.
We base this conclusion first on public policy considerations. We do not believe that in initially prescribing participation in [**1225] a safety program, the Legislature meant to provide a disincentive to the establishment of such programs by charitably organized leagues and teams — and surely a disincentive is implicit in a scheme in which a coach or manager can obtain immunity against ordinary negligence by the simple expedient of the league’s failure to instruct him on matters of safety. Rather, we are convinced that the Legislature, responding to a perceived [*190] insurance crisis, concluded that all of the competing interests involved in the management of and participation in nonprofit athletic organizations could be most reasonably accommodated by encouraging the safety training of volunteer coaches and managers — not discouraging such training — and then protecting trained volunteers from ordinary negligence claims. Thus, the prior training was at the heart of the immunity concept. That being so, we are convinced [***9] that the Legislature never intended that the immunity would attach to an untrained volunteer simply because his league or team chose not to offer appropriate training.
Beyond that, we are also convinced that that construction of the original version of the statute has been expressly confirmed by the Senate Statement accompanying the 1988 amendment. That Statement starts with the observation that the amendment is intended to clarify the manner in which the volunteer coach, manager, or official can satisfy “the training program requirement of the ‘little league liability law,’ P.L.1986, c. 13. . . .” 5 Thus, the Legislature itself thereby described the program referred to in the original Act as mandated rather than optional. The conclusion is, therefore, ineluctable that [HN3] a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.
5 Although the Act by its terms is not limited to the Little League or even to youngsters participating in nonprofit athletic organizations, the Act has been referred to by the Little League nomenclature because it was that context in which it was initially adopted.
[***10] The partial summary judgment dismissing the ordinary negligence counts of the complaint against Dennis Bonk is reversed, and the matter is remanded to the trial court for further proceedings
The Iowa Supreme Court reaffirms a Permission Slip is not a release, but leaves open the argument that releases may stop a minor’s claim for negligence.
Posted: July 21, 2014 Filed under: Assumption of the Risk, Iowa, Legal Case, Sports | Tags: assumption of the risk, Baseball, Baseball Game, Bat, Bettendorf Parks and Recreation, City of Bettendorf, Code of Iowa, Duty of care, Inherent Risk Doctrine, Iowa, Iowa Supreme Court, Minor, negligent supervision, Plaintiff, Recreation Department, Spectator Leave a commentCity Parks Department sued for injuries of an eight-year-old girl hit by a flying bat at a baseball game field trip.
Sweeney v. City of Bettendorf, 762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26
State: Supreme Court of Iowa
Plaintiff: Tara Sweeney, Individually, and by Cynthia Sweeney, Her Mother and Next Friend
Defendant: City of Bettendorf and Bettendorf Parks and Recreation
Plaintiff Claims: Negligence
Defendant Defenses: Release (Permission Slip), No duty owed,
Holding: Split, the permission slip was not a release however there triable issues to the defense of duty owed
Year: 2009
The city recreation department would take kids on field trips to see minor-league baseball games in other cities. The plaintiff was an eight-year-old girl who loved baseball and her mother. The minor went on several of these field trips in the past. Her mother signed the permission slip and she went off on the trip.
In the past, the participants had sat behind home plate which was protected by netting from flying objects. This time the kids were taken to bleachers along the third baseline. They were told they had to sit there and could not move.
During the game, a player lost his grip on the bat which sailed down the third baseline hitting the girl. The minor had turned to talk to her friend when she was struck. No adults were around at the time.
The plaintiffs sued for negligent. The defendant filed a motion for summary judgment citing a permission slip the mother had signed as a release and that the plaintiff had not shown a breach of duty owed to the injured minor.
The plaintiff’s opposed the motion for summary judgment arguing:
The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.
The trial court granted the motion for summary judgment based on the permission slip no evidence of a breach of duty. The plaintiff’s appealed.
Summary of the case
The court reviewed several procedural issues and then looked into releases under Iowa law. The court found the permission slip was deficient in many ways.
…the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent would be waiving all claims relating to future acts or omissions of negligence by the City. The language at issue here refers only to “accidents” generally and contains nothing specifically indicating that a parent would be waiving potential claims for the City’s negligence.
Based on the language in the permission slip the court found it could not enforce the release because it was not a release.
Next the court looked at whether being hit by a bat at a baseball game was an inherent risk of being a spectator at a baseball game. In Iowa this is called the inherent risk doctrine. (This doctrine is very similar to a secondary assumption of risk argument.) What created a difference in this issue, is the issue of whether a flying bat is an inherent risk, is a defense of the baseball team/promoter/owner or field rather than a city recreation department field trip.
In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game.
Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected.
Because the inherent risk was not one of a field trip, the court found differently than if the defense was argued by the owner of the field. The issue was not one of attending a sporting event invited by the event, but supervision of a minor child by a recreation department.
A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment.
As a negligent supervision case, the recreation department owed a different type and a higher degree of care to the minor.
Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. The gist of the plaintiffs’ claim is that a substantial cause of the injury was the supervisors’ decision to allow the children, who cannot be expected to be vigilant at all times during a baseball game, to be seated in what a jury could conclude was an unreasonably hazardous location behind third base instead of behind the safety of protective netting.
Add to this the change in sitting and the restrictions the adults placed on where the minors could sit and the court found there was a clear issue as to liability.
The third issue reviewed by the court was whether the recreation department failed to provide an adequate level of care to the minor. Here the court agreed with the recreation department. Not because the level of care was sufficient, but because the plaintiff could not prove the level of care was inadequate.
There was a dissent in this case, which argued that the risk of being hit by a bat was an inherent risk of attending a baseball game and that the permission slip was a valid release.
The case was then sent back for trial on the negligence claims of the plaintiff.
So Now What?
What is of interest is the single sentence that argues a release signed by an adult stops the claims of a minor. It was argued by the plaintiff’s as one of the ways the permission slip was invalid. However, the court did not look at the issue in its review and decision in the case.
The court’s review was quite clear on releases. If you do not have the proper language in your release, you are only killing trees. It was a stretch, and a good one, by the recreation department to argue that a document intended to prove the minor could be on a field trip was also a release of claims.
Releases are different legal documents and require specific language.
You also need to remember that defenses that are available to a lawsuit are not just based on the activity, like baseball, but the relationship of the parties to the activity. If the minor child had attended the baseball game on her own or with her parents, the Iowa Inherent Risk Doctrine would have probably prevented a recovery. However, because the duty owed was not from a baseball game to a spectator, but from a recreation department to a minor in its care, the inherent risk defense was not available.
What do you think? Leave a comment.
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Moore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
Posted: February 20, 2014 Filed under: Legal Case, Minnesota, Minors, Youth, Children, Release (pre-injury contract not to sue), Sports | Tags: Baseball, Minneapolis, Minnesota, Minnesota Baseball Instructional School, Minor, parent, Release Leave a commentMoore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
Terry Moore, as father and natural guardian for minor, Thaddeus J. Moore, Appellant, vs. Minnesota Baseball Instructional School, Respondent.
A08-0845
2009 Minn. App. Unpub. LEXIS 299
March 31, 2009, Filed
NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.
PRIOR HISTORY: [*1]
Hennepin County District Court File No. 27-CV-07-11022.
DISPOSITION: Affirmed.
COUNSEL: For Appellant: Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN; and Stuart L. Goldenberg, Goldenberg & Johnson, Minneapolis, MN.
For Respondent: Marianne Settano, Theresa Bofferding, Law Office of Settano & Van Cleave, Bloomington, MN.
JUDGES: Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Connolly, Judge.
OPINION BY: CONNOLLY
OPINION
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant Terry Moore initiated this negligence action in district court on behalf of his minor son, T.J., following an incident in which T.J.’s eye was permanently injured while T.J. was participating in a baseball camp operated by respondent Minnesota Baseball Instructional School. The district court granted summary judgment to respondent. Because appellant had signed a valid agreement releasing respondent from liability for T.J.’s injury prior to enrolling in the camp, we affirm.
FACTS
Respondent operates summer baseball-instructional camps for students of varying ages. T.J. participated in one of respondent’s camps during June 2005. The camp was located on the grounds of the University of Minnesota. On the camp’s final day, students walked from Siebert baseball [*2] stadium to Sanford residence hall to have lunch. When the students were done eating lunch, they were given the option of going to a television lounge in the residence hall or going to the residence hall’s courtyard. T.J. and a number of other students went to the courtyard to play. While in the courtyard, students began throwing woodchips at each other. T.J. sustained a permanent eye injury when he was struck by a woodchip thrown by another student.
After T.J.’s father initiated suit, respondent moved the district court for summary judgment, arguing that an exculpatory clause contained in the camp’s registration materials insulated it from liability. The district court agreed with respondent and granted summary judgment. Appellant contends that the district court erred because there are material facts in dispute. Specifically, appellant argues that there are fact issues as to whether T.J.’s mother signed the emergency medical information form in question and whether the form contained the exculpatory clause as it is described by respondent. Appellant also contends that, if it does exist, then the district court erred in interpreting and upholding the exculpatory clause in the release. [*3] This appeal follows.
DECISION
[HN1] “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
I. It is not in dispute that T.J.’s mother signed the assumption-of-risk-and-release agreement.
Respondent was unable to produce the assumption-of-risk agreement and release signed by T.J.’s mother. Appellant contends that, because of this, there is a material factual dispute about whether T.J.’s mother signed the agreement.
Lee Swanson is respondent’s director. In his deposition, Swanson was asked about the method through which participants sign up for respondent’s camp. He explained that parents have the option of enrolling their children [*4] online, and that T.J.’s mother used this process to enroll her son. In order to enroll her son, T.J.’s mother first went to the camp’s website and filled out the enrollment form online. After filling out the form online, T.J.’s mother clicked on a link that submitted the enrollment form. Respondent has been able to produce a document generated from the camp’s archives as confirmation that T.J.’s mother filled out the enrollment form. Swanson testified that this document was based on information that is sent to the camp electronically upon the completion of a student’s enrollment form. Swanson testified that the camp does not receive the actual completed enrollment form.
Respondent has also produced a spreadsheet containing the roster of students who participated in the June 2005 camp that lists T.J. as a camp participant. Respondents were unable to produce a copy of the online enrollment form that T.J.’s mother filled out; however, they were able to produce a 2007 version of the enrollment form, and Swanson testified it was the same as the 2005 version that T.J.’s mother would have filled out:
ATTORNEY: I’m showing you what has been purported to in your interrogatory answers to be the [*5] summer camp enrollment [form] of ’07 which was the same — there’s a little note that says same as ’05; is that correct?
SWANSON: That’s correct.
ATTORNEY: That’s Exhibit Number 5? 1
SWANSON: Correct.
ATTORNEY: Do you recall anything different about this particular enrollment form from the one that existed in ’05?
SWANSON: That is the same.
1 Exhibit 5 is a copy of the 2007 summer enrollment form.
Swanson was next questioned about an emergency medical form that a student’s parent must sign before that student is allowed to participate in the camp:
ATTORNEY: This is Exhibit Number 7, can you identify what that is for us, please?
SWANSON: This is our emergency medical information form that a parent or guardian has to fill out, it gives specific information about primary contacts, about medical histories, about emergency contacts, it also gives information provided for policy numbers, insurance in case we have to ship the kid to the emergency room for some problem. Also it has a Recognition and Assumption of Risk Agreement that the parent or guardian has to sign along with the camper’s signature.
ATTORNEY: Is this something that’s on-line or is this sent to the parents to sign?
SWANSON: It is available [*6] on-line, but every kid that registers gets an e-mail sent, an attachment with this.
ATTORNEY: Do you have a specific copy of this that the Moores actually signed?
SWANSON: We were not able to retrieve it. Generally I have to destroy these because of valuable information or personal information on these.
ATTORNEY: Okay.
. . . .
ATTORNEY: Do you know for certain that this form was in place as of June of ’05?
SWANSON: Yes.
ATTORNEY: What happens if you don’t get a copy of this form
SWANSON: Kid cannot participate in camp.
ATTORNEY: So it is fair to say that your testimony is going to be that even though you couldn’t find a copy of this if he showed up to camp without his parents signing it he would not be allowed to participant
SWANSON: Correct.
ATTORNEY: So is it fair to say that you can make that assumption then that they did sign this agreement?
SWANSON: Yes.
ATTORNEY Okay. That’s Exhibit Number Seven?
SWANSON: Yes.
(Emphasis added.)
Exhibit seven contains the assumption-of-risk agreement that is at the heart of this appeal. It, under the headline “RECOGNITION & ASSUMPTION OF RISK AGREEMENT,” reads:
I, the undersigned parent/legal guardian of , authorize said child’s participation in the Minnesota [*7] Baseball Instructional School (MBIS) camp. It is my understanding that participation in the activities that make up MBIS is not without some inherent risk of injury. As such, in consideration of my child’s participation in the MBIS camp, I hereby release, waive, discharge, and covenant not to sue the MBIS and any and all Directors, Officers, and Instructors and the Regents of the University of Minnesota and its Directors, Officers, or Employee from any and all liability, claims, demands, action, and causes of action whatsoever arising out of or related to any loss, damage, or injury including death, that may be sustained by my child, whether caused by the negligence of the releases, or otherwise while participating in such activity, or while in, or upon the premises where the activity is being conducted.
The following colloquy occurred when respondent’s attorney questioned T.J.’s mother about the assumption-of-risk agreement:
QUESTION: Okay. I’m showing you what’s been marked Deposition Exhibit No. 2. Do you recognize that document?
ANSWER: I don’t recall it specifically.
QUESTION: Do you recall that that is an emergency medical information — or should I say — let me rephrase that. Do [*8] you recall filling out a health information form and emergency medical form for T.J. to attend the Minnesota Baseball Instructional School in either 2004 or 2005?
ANSWER: I don’t recall.
QUESTION: Okay. Do you deny having filled out an emergency form for T.J.?
ANSWER: I must have.
QUESTION: Okay. I’m going to ask you to look at both pages of that form and see if you recognize that form.
ANSWER: I don’t recall the form.
QUESTION: Okay. I’d like you specifically to read the second page of the form, recognition and assumption of risk agreement, and I’d like you to read that to yourself and tell me if you recognize that.
ANSWER: I don’t recall the form.
QUESTION: Do you deny having filled it out
ANSWER: I do not deny it, I just don’t recall.
(Emphasis added.)
Based on the above deposition testimony, there is no material fact in dispute that T.J.’s mother signed the emergency medical form containing the assumption of risk agreement. Swanson testified that the 2007 enrollment form he produced was the same as the 2005 version that T.J.’s mother would have used. He was able to produce a document generated from archived enrollment data that indicates T.J. enrolled in the camp. He was also able to produce [*9] a roster, containing T.J.’s name, of children who participated in the 2005 camp. Finally, he produced a copy of an emergency medical form that is e-mailed to parents upon completion of the enrollment form. He testified that this was the same version of the emergency medical form that was in place in 2005. He testified that a student would not be allowed to participate in the camp unless the emergency medical form was signed and returned to respondent. The emergency medical form contained the assumption-of-risk agreement with the release language.
T.J.’s mother does not deny filling out the emergency medical form containing the assumption-of-risk agreement. She only states that she does not recall filling it out but admits that she must have filled it out. Because she does not claim that she did not fill out the emergency medical form, and because Swanson testified that she did fill out the form, it is simply not in dispute that T.J.’s mother filled out the form. Appellant argues, in essence, that the district court made a credibility determination in giving greater weight to Swanson’s testimony than to T.J.’s mother. This is not the case because Swanson’s testimony and T.J.’s mother’s [*10] testimony are not in conflict. Swanson testified that T.J.’s mother filled out the emergency medical form. T.J.’s mother’s testimony does not contradict Swanson’s testimony; she only states that she does not remember filling it out, but that she must have filled it out, and that she does not deny doing so.
Finally, the text of the assumption-of-risk agreement is not in dispute. Swanson produced the 2007 version of the agreement and testified that the 2007 version is the same as the 2005 version. Appellant disputes this in his brief, but points to no evidence that contradicts this testimony. T.J.’s father did not present any evidence that the emergency medical form produced by respondent was different from the 2005 agreement that she “must have” filled out. In sum, there are no material facts in dispute. The district court did not make any credibility determinations and did not weigh the evidence. It simply applied the law to undisputed facts.
II. The exculpatory clause releases respondent from liability for any damage resulting from T.J.’s injury.
[HN2] “The interpretation of a contract is a question of law if no ambiguity exists, but if ambiguous, it is a question of fact . . . .” City of Va. v. Northland Office Props. Ltd. P’ship, 465 N.W.2d 424, 427 (Minn. App. 1991), [*11] review denied (Minn. Apr. 18, 1991).
[HN3] It is settled Minnesota law that, under certain circumstances, “parties to a contract may, without violation of public policy, protect themselves against liability resulting from their own negligence.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982). The “public interest in freedom of contract is preserved by recognizing [release and exculpatory] clauses as valid.” Id. at 923. (citing N. Pac. Ry. v. Thornton Bros., 206 Minn. 193, 196, 288 N.W. 226, 227 (1939)). But releases of liability are not favored by the law and are strictly construed against the benefited party. Id. “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id.
Appellant contends the district court erred in interpreting the exculpatory clause contained in the assumption-of-risk-and-release agreement because the events leading to T.J.’s injury were not covered by the exculpatory clause, and because T.J.’s injuries occurred on premises not covered by the exculpatory clause.
Regarding appellant’s first contention, the district court did not err in concluding [*12] that the events that resulted in T.J.’s injuries were covered by the exculpatory clause. Appellant’s argument on this point is that woodchip throwing is not an inherent risk of playing baseball. While this may be true, it is not dispositive in this case. As respondent noted, the “inherent risk” language found in the assumption-of-risk-and-release agreement is extraneous to the exculpatory clause because the sentence containing the “inherent risk” language precedes the exculpatory language. However, more important to the resolution of this appeal is determining what actions are covered by the term “activities” as it is used in the exculpatory clause. Appellant attempts to define the term “activities” narrowly, to mean only activities directly related to the game of baseball. This is contrary to a plain reading of the assumption-of-risk-and-release agreement. The first time “activities” occurs in the agreement, it is used to describe “the activities that make up the MBIS.” It is not limited to the activity of playing baseball; instead, it covers all of the activities encompassed by the respondent’s camp. Lunch-break activities were part of respondent’s camp. T.J. was injured during the [*13] lunch break. As such, the exculpatory clause, under a plain reading, does cover T.J.’s injury.
Regarding appellant’s second contention, the district court did not err in concluding that T.J.’s injuries occurred on premises covered by the exculpatory clause. Appellant argues that the residence hall courtyard, in which the injury occurred, is not part of the “premises” used for specific baseball instructional activities. As explained above, appellant’s definition is too narrow. As used in the assumption-of-risk-and-release agreement, “activities” refers to all of the activities that are part of the camp, rather than just activities directly related to baseball. Because lunch-break activities are part of the camp, those activities are covered by the assumption-of-risk-and-release agreement. As a result, the premises where lunch-break activities occurred are covered by the exculpatory clause.
III. The exculpatory clause does not violate public policy.
Finally, the district court was correct in concluding that the exculpatory clause did not violate public policy. 2
2 Appellant does not contend that T.J. was injured as a result of respondent’s intentional conduct.
[HN4] Even if a release clause is [*14] unambiguous in scope and is limited only to negligence, courts must still ascertain whether its enforcement will contravene public policy. On this issue, a two-prong test is applied:
Before enforcing an exculpatory clause, both prongs of the test are examined, to-wit: (1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision) . . . and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).
Id. (citations omitted).
The two-prong test describes what is generally known as a “contract of adhesion.” Anderson v. McOskar Enters., 712 N.W.2d 796, 800 (Minn. App. 2006). As explained in Schlobohm, [HN5] a contract of adhesion is
a contract generally not bargained for, but which is imposed on the public for necessary service on a ‘take it or leave it’ basis. Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly [*15] disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.
326 N.W.2d at 924-25.
Here, it is not in dispute that the exculpatory clause was part of a take-it-or-leave-it agreement. Neither appellant nor respondent argues that T.J.’s mother had the ability to negotiate the agreement. What the parties do dispute is the nature of the services being offered by respondent. Appellant argues that instructional baseball training is an educational activity and, thus, an essential public service. We disagree. Instructional baseball training is not a service that is either of great importance to the public, or a practical necessity for some members of the public. Furthermore, the services provided by respondent are not essential because there are other avenues to obtain instructional baseball training for children. See id. at 926 ( [HN6] “[I]n the determination of whether the enforcement of an exculpatory clause would be against public policy, the courts consider whether the party seeking exoneration offered services of great importance to the public, which were a practical necessity for some members of the public.”).
Because the [*16] district court did not err (1) in concluding that there was no material fact in dispute; (2) in interpreting the exculpatory clause; and (3) determining that the exculpatory clause did not violate public policy, we affirm.
Affirmed.
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Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Posted: February 21, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Baseball, Baseball Camp, Child, Coach, JimMoss, Minnesota, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Summer Camp Leave a commentCase was a baseball camp where the minor was injured during horseplay.
Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
This is a pretty simple case. The defendants operated a baseball camp on the campus of the University of Minnesota. The plaintiff’s mother had signed her son up for the camp, online or electronically. On the last day after lunch a group of students went to the courtyard. The plaintiff sustained a permanent eye injury when they started throwing woodchips from the courtyard at each other.
The father sued on behalf of his son. The trial court, a district court in the opinion, granted the defendant’s motion for summary judgment. The father on his and his son behalf appealed.
The plaintiff first argued that the release, or assumption of the risk agreement as it was termed in the decision, should be “thrown out” because it could not be produced. Because the mother had signed online there was no signed document. On top of that, the system used by the defendant did not produce any document indicating who had signed what documents.
However, the defendant was able to show that the mother had signed other documents just like the release. A roster of those kids that had attended the camp that summer, with the injured minor’s name on it was produced. The camp through a director, also testified that if the mother had not signed the release, the minor would not have been allowed to attend the camp.
The mother’s deposition was also introduced. She could not deny filing out the forms online even though she did not remember the forms.
The plaintiff’s then argued that the language of the release did not cover the injury the minor sustained. The language only spoke to baseball and as such the release only covered injuries that the minor could have received playing baseball. Horsing around during free time therefore, was not covered by the release. The plaintiff also argued the language that excluded the claims; the release sentence was separate from the sentence that identified the risks. As such the release should be very narrowly construed.
Neither argument was accepted by the court. The court found that the release covered more than just baseball, and the release had to be read as a whole so the risk was incorporated into the exculpatory sentence.
The plaintiff then argued the exculpatory clause violated public policy. The court dismissed this argument. The court found that the baseball camp was not educational in nature. The training could be found through other sources and playing baseball was not essential or of great importance to members of the public.
So?
The rules of evidence have a procedure for admitting into trial documents that have been lost. The rule is based on procedure. The procedure to be allowed to go to a baseball camp required a parent to sign many documents. The child would not have been allowed at amp without signing all of the documents. A procedure was set up to show the mother had to have signed the release because her son was at the camp.
You should create a procedure for your business, camp or program. The best one I’ve seen for whitewater rafting was created by Mountain Waters Rafting. Guests were given their PFD’s (life jackets) when they handed in their releases. If a guest had on a PFD, the guest had signed a release.
The more you can identify a procedure that you used the same way every time, the easier to introduce a lost piece of paper.
Electronically, there can be several ways to make sure you can prove a person read and signed the release online. I first suggest you always tie a release into a credit card. The credit card company knows more about the holder of a credit card then you ever will. If the credit is accepted to pay for something on line, and the name on the release matches the name on the credit card you can prove the release was signed. If the trip or camp was paid for a release was signed.
You should also have a system that you are notified that each person has signed the documents. Create a way to download the information, name, address, etc. date and exact time the release was signed to your business computer and do so regularly. That information can be matched up, name, date and time to the credit card and payment used. Match this with your receipt of payment from the credit card company and you should have proof.
Make sure your release is written to cover all the risks of your program, business or activity. Here the language was broad enough the baseball program was covered for horseplay. How often do you feed guests, transport guests, and have guests just walking around that could be a chance to be injured. Your release needs to stop litigation, all types of litigation, not just what you face what you are selling to the public.
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