It’s a balance, healthy kids versus safe kids, health adults versus safe adults, polluted air versus clean air or more importantly, personal choice versus you telling me what to do.Posted: March 18, 2015
Study from Sweden looks at the effects of cycling after a 2005 law requiring children to wear helmets while riding bikes.
This article came from a study by the Swedish Association of Transportation Planners. The article, What happens when you mandate helmet-wearing among young Swedish cyclists? is based on the study.
These are quotes from the article. Emphasize in bold is mine.
Mandatory helmet laws have been controversial in that they seem to have a limited effect on the number of head injuries, if at all, but instead are correlated with a decrease in cycling numbers.
Graph 1 shows the number of head injuries as a share of injuries to all parts of the body. The downward sloping lines indicate that head injuries are falling faster than other injuries.
As we can see there does not seem to be a difference between the trends of the different modes, suggesting that if there is any fall in the share of head injuries it is likely to be an effect of something that also applies to other or all road users.
However there does seem to be another effect of helmet laws, namely a decline in cycling among school children. In 1983 57% of children aged 7-9 had permission from their parents to bike to school without adult companion, and for the age group 10-12, 94% had such permission. By the year 2007 this had decreased to 25% and 79% respectively. Bearing in mind, the helmet law was introduced in 2005, we can’t be sure of a correlation, because the data consists of surveys from 1983 and then 2007. But we do also have data recording that the share of school journeys by bicycle fell from 33% in 2006 one year after the legislation to 29% in year 2012. The evidence does suggest that the effect of the helmet law primarily is that fewer children bike to school.
So the data does show a decline in cycling, but without annual surveys it’s hard to be sure of a correlation. However, a Danish report made the same link between declining cycling to school and helmet promotion and safety/scare campaigns. They determined that half the decline in cycling was caused by these campaigns, and half was caused by other factors such as more car traffic and longer distances to school.
From my perspective, laws telling me how to live don’t work, and this study shows that. Whether I wear a helmet is more personal issue that I should be allowed to decide.
More importantly, cycling increases the cyclist’s health, decreases air pollution and general promotes health. That is a greater benefit to all of us then the individual benefit of forcing someone to do something they may or may not want to do.
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U.S. Bicycle Route System grows to over 8,000 miles
Official national bicycle network expands to 8,042 miles with addition of five new routes
MISSOULA, MONTANA, November 16, 2014 — Adventure Cycling Association and the American Association of State Highway and Transportation Officials (AASHTO) today announced that AASHTO’s Special Committee on U.S. Route Numbering has approved 1,253 miles of new U.S. Bicycle Routes (USBRs): USBR 1 in Massachusetts and Florida, USBR 10 in Michigan, USBR 11 in Maryland, and USBR 90 in Florida. Realignments were also approved for USBR 76 and USBR 1 in Virginia, which were originally designated in 1982. The U.S. Bicycle Route System (USBRS) now encompasses 8,042 miles of routes in 16 states and the District of Columbia.
“We continue to be impressed by the strong work of state Departments of Transportation and congratulate them on their designations,” said AASHTO Executive Director Bud Wright. “We also wish to acknowledge our partnership with Adventure Cycling Association and the expertise they bring to the process.”
The U.S. Bicycle Route System is a developing national network of numbered and signed bicycle routes that connect people, communities, and the nation. Similar to emerging international networks, such as Europe’s EuroVelo network and Quebec’s La Route Verte, the U.S. Bicycle Route System provides important recreational and transportation options for the active traveler. Currently, more than 40 states are working to develop route corridors into official U.S. Bicycle Routes to be approved by AASHTO at their spring and fall meetings.
“With each new route and each new state in the U.S. Bicycle Route System, we will soon see this network reach every corner of America, from urban to rural areas” said Jim Sayer, executive director of Adventure Cycling Association. “Given the project’s momentum, we expect that, over time, the USBRS will become the largest official bicycle route network on the planet.”
U.S. Bicycle Route 1 in Florida (584.4 miles)
U.S. Bicycle Route 1 follows Florida’s Atlantic coast from Key West to Jacksonville, where it ends at the Georgia State Line. Much of USBR 1 follows the East Coast Greenway and Adventure Cycling Association’s Atlantic Coast Route. The route includes many scenic beaches and intersects cities and towns along the way.
Florida Department of Transportation Secretary Ananth Prasad commented, “We’re very pleased that Florida now joins other states in establishing U.S. Bicycle Routes. Milepost 0 in Key West will now be the starting point for U.S. Bicycle Route 1 as it is for U.S. Highway 1. The Sunshine State invites cyclists to enjoy our great state.”
State Bicycle Coordinator DeWayne Carver said that FLDOT plans to designate more U.S. Bicycle Routes in the near future.
U.S. Bicycle Route 90 in Florida (423.8 miles)
U.S. Bicycle Route 90 is an east-west route that connects the Alabama border to Florida’s Atlantic Coast in Butler Beach, just south of St Augustine. The route partly follows Adventure Cycling’s Southern Tier route and traverses rural north Florida through pastures, forests, and small towns, with a few “big city” stops in Pensacola and Tallahassee.
Florida DOT Secretary Ananth Prasad said, “cyclists can now follow USBR 90 across Florida from the coast to Alabama. We’ll guarantee to keep the route free from snow year-round and provide plenty of sunshine.”
Bicyclists interested in riding U.S. Bicycle Routes in Florida can find maps, turn-by-turn directions and other information at http://www.dot.state.fl.us/planning/policy/usbr.
U.S. Bicycle Route 11 in Maryland (34 miles)
US Bicycle Route 11 runs for 34 miles from the Pennsylvania state line northwest of Hagerstown to Harpers Ferry, West Virginia. There are a variety of urban and scenic attractions along the route, which follows a combination of rural roads, state highways and off-road trails. Cyclists can stop in downtown Hagerstown and explore its historical and art museums located in the picturesque Hagerstown City Park. For bicycle travelers interested in civil war history, there are many historical attractions along or near the route, including the National War Correspondents Memorial in Gathland State Park, the Antietam National Battlefield, and Harpers Ferry National Historical Park. USBR 11 also traverses the traffic-free, scenic Chesapeake and Ohio Canal Towpath (also designated as U.S. Bicycle Route 50) for 2.6 miles until it reaches Harpers Ferry.
“US Bicycle Route 11 will be a great asset for bicyclists and Washington County businesses,” said Richard Cushwa, Acting Chair of the Maryland Bicycle and Pedestrian Advisory Committee. “By connecting with U.S. Bicycle Route 50, this designation will help enhance safety, travel, and tourism throughout Western Maryland and beyond.”
For more information on bicycling in Maryland, visit the Maryland Department of Transportation Bicycle and Pedestrian site at http://1.usa.gov/1uLsgp3.
U.S. Bicycle Route 1 in Massachusetts (18 miles)
The Massachusetts Department of Transportation has designated two new segments along U.S. Bicycle Route 1, adding 18 miles to the route, which now totals 38 miles. The two new segments offer a glimpse of what makes Massachusetts a special place for local and long-distance travelers alike, with an array of landscapes and settlements along urban and rural byways.
The more northerly segment of USBR 1 in Salisbury and Newburyport straddles the majestic Merrimack River. USBR 1 here offers views of watercraft, and reminders of the area’s rich nautical history. While the Salisbury Old Eastern Marsh Trail provides proximity to expansive Atlantic Ocean beaches, Newburyport’s Clipper City Rail Trail reminds riders that the City’s clipper ships were once the fastest on the seas, spawning a global maritime trade. Both communities also offer nature preserves and museums in close proximity to USBR 1.
Further south, USBR 1 traverses through the communities of Topsfield, Wenham, Danvers, and Peabody, which are removed from the Atlantic and offer a different experience of Massachusetts. The Topsfield Linear Common and Wenham Swamp Walk wind their way through these communities, and riders are treated to a number of river crossings. Wetlands remind cyclists of glacial epochs long past, and boardwalks provide opportunities to explore these landscapes and natural history. Timeless town centers and deep woods also attract riders. Further south, USBR 1 enters busier settlements via the Danvers Rail Trail and Independence Greenway where cyclists can buy needed provisions.
U.S. Bicycle Route 10 in Michigan (193 miles)
U.S Bicycle Route 10 stretches for 193 miles along U.S. 2 and connects the eastern and central portions of Michigan’s Upper Peninsula. The eastern terminus connects with U.S. Bicycle Route 35 in St. Ignace. As the route travels west to Iron Mountain, Michigan, travelers are presented with stunning views of the Mackinac Bridge, rolling sand dunes along Lake Michigan, and tourist attractions like the famous Mystery Spot. The gently rolling route passes numerous parks, state and national forest lands, and scenic overlooks. Along the way, small lumber towns and rural communities offer everything a bicycle traveler could need every 20 to 30 miles.
A recent study initiated by the Michigan Department of Transportation showed that bicycling brings $668 million per year in economic benefits to Michigan’s economy. The state’s third U.S. Bicycle Route designation, USBR 10 will bring bicycle tourism revenue and new economic growth opportunities to Michigan’s Upper Peninsula. The designation is also part of a regional effort to complete U.S. Bicycle Routes around Lake Michigan and market the area as an active tourism destination.
Kerry Irons, a USBRS coordinator for Adventure Cycling based in Michigan, noted that “with the addition of USBR 10, Michigan is now tied with Florida for second place among states for USBR mileage (1,008 miles), with Alaska having the highest mileage (1,414 miles). We’re looking forward to the connection of USBR 37 to Wisconsin and the completion of USBRs all the way around Lake Michigan.”
U.S. Bicycle Route 1 Realignment in Virginia (6 miles added)
The Virginia Department of Transportation has realigned U.S. Bicycle Route 1 in Northern Virginia to provide a safer and more reliable route for cyclists. Increased traffic volumes, changes to access through Ft. Belvoir, and the closure of a bridge on Gunston Cove Rd were all factors which triggered a re-evaluation of the existing route. The realignment improved the scenic appeal of the route by adding more mileage along the Potomac River.
USBR 1 in Northern Virginia travels by several interesting and historic sites including Historic Occoquan, Mt. Vernon (Home of George Washington), Woodlawn Plantation, the Pope-Leighey house (designed by Frank Lloyd Wright), George Washington’s Grist Mill, and Old Town Alexandria. The route now ends at the 14th St Bridge in Washington DC.
United States Bicycle Route 76 Realignment in Virginia (6 miles removed)
The Virginia Department of Transportation (VDOT) has realigned U.S. Bicycle Route 76 in the Staunton District to provide a safer, more direct route for cyclists. The route was realigned just north of Lexington to Route 56 near Vesuvius and matches the existing Adventure Cycling TransAmerica Trail route. The new route follows roads with lower-volume traffic and avoids two interstate interchanges.
This section of USBR 76 passes through the historic city of Lexington, home of the Virginia Military Institute and Washington and Lee University. For eastbound cyclists, this section of USBR 76 is the last part of the route in the Shenandoah Valley and skirts the western foot of the Blue Ridge Mountains. The northern end of the realignment ends at Route 56 which then quickly climbs 2000 feet over four miles to the Blue Ridge Parkway. The 17-mile section of the Blue Ridge Parkway offers numerous scenic views and is consistently noted as one of the highlights of the TransAmerica Trail by cross country cyclists. Maps of the TransAmerica Trail are available at Adventure Cycling and more information about the USBR 76 route changes is available on the VDOT website.
The U.S. Bicycle Route System will eventually be the largest bicycle-route network in the world, encompassing more than 50,000 miles of routes. Adventure Cycling Association has provided dedicated staff support to the project since 2005, including research support, meeting coordination, and technical guidance for states implementing routes. Adventure Cycling also provides an updated list of links to maps and other resources for cyclists wishing to ride an established U.S. Bicycle Route on its Use a U.S. Bicycle Route page.
AASHTO’s support for the project is crucial to earning the support of federal and state agencies. AASHTO is a nonprofit, nonpartisan association representing highway and transportation departments in all 50 states, the District of Columbia, and Puerto Rico. A powerful voice in the transportation sector, AASHTO’s primary goal is to foster the development of an integrated national transportation system.
Support for the U.S. Bicycle Route System comes from Adventure Cycling members, donors, and a group of business sponsors that participate in the annual Build It. Bike It. Be a Part of It. fundraiser each May. The U.S. Bicycle Route System is supported in part by grants from the Tawani Foundation, Lazar Foundation, and Climate Ride.
Learn more at www.adventurecycling.org/usbrs.
Plaintiff’s complaint was not sufficient to adequately plead its claim for punitive damages.
N.H., a minor child, v. N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)
Plaintiff: N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually
Defendant: Sequoyah Council, Inc., Boy Scouts of America
Plaintiff Claims: (1) it [defendant] failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners
Defendant Defenses: Unknown
Holding: Motion to dismiss punitive damages claim by defendant granted for defendant
This is a pre-trial decision and should not be relied upon for a firm statement about the law in Tennessee as far as dismissing claims prior to trial.
The plaintiff was a boy who went to a Boy Scout Summer Camp in Tennessee. While mountain biking at the camp his brakes allegedly did not work, and he rode off the trail and hit a tree.
The plaintiff sued for a multitude of claims, including an allegation that punitive damages were being requested. The defendant filed this motion prior to trial to eliminate the claim for punitive damages.
Summary of the case
The court looked at Tennessee’s law concerning punitive damages. Under Tennessee’s law, punitive damages are only available for “only the most egregious of wrongs.” “Accordingly, under Tennessee’s law, “a court may … award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.”
Punitive damages are not available for gross negligence. To receive punitive damages under Tennessee’s law:
A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.
In this case, the complaint did not make any allegations that fit within the required definitions. Consequently, the part of the complaint demanding punitive damages was dismissed.
So Now What?
This was a pre-trial motion that was of interest; however, this is not a final decision in the case and could be overturned by another court after the trial on this case.
Tennessee has higher requirements for most other states to ask for and receive punitive damages. Consequently, the defendant was able to dismiss that part of the complaint in advance of trial.
It never hurts to know the specifics of what is required to prove damages above normal damages. That knowledge can help keep you safe.
What do you think? Leave a comment.
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N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)Posted: November 18, 2013
N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)
N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually, v. Sequoyah Council, Inc., Boy Scouts of America
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
2012 U.S. Dist. LEXIS 87452
April 30, 2012, Filed
COUNSEL: [*1] For Jorge Hernandez, Individually Minor N. H, Elizabeth Hernandez, Individually Minor N. H., Plaintiffs: Thomas C Jessee, Jessee & Jessee, Johnson City, TN.
For Sequoyah Council, Inc., Boy Scouts of America, defendant: Suzanne S Cook, LEAD ATTORNEY, Hunter, Smith & Davis – Johnson City, Johnson City, TN.
JUDGES: J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.
OPINION BY: J. RONNIE GREER
This personal injury action is before the Court pursuant to 28 U.S.C. § 1332. Pending before the Court is the defendant’s motion to dismiss plaintiffs’ demand for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 5]. For the reasons which follow, the motion is GRANTED.
The following facts are taken from plaintiffs’ Complaint and are assumed true for the purposes of defendant’s motion to dismiss. In June 2010, the minor plaintiff was registered by his parents to participate in a summer camp owned and operated by defendant in an attempt to earn merit badges towards becoming an Eagle Scout. On June 15, 2010, while at this summer camp, the minor plaintiff participated in a mountain biking activity/class sponsored by defendant. During the course of his participation, the minor plaintiff discovered [*2] that the brakes on his bike were not working, and he rode off the trail and struck a tree, sustaining severe bodily injuries.
The defendant was allegedly negligent as follows: (1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.” [Doc. 1 at ¶19]. The Complaint also states that “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff.” Id. at ¶20. The Complaint contains a number of additional paragraphs that allege how the “negligence” of the defendant was the proximate cause of various other consequences. Id. at ¶¶22-27. The final paragraph of the Complaint states, “As a proximate . . . result of the negligence of Defendant, the Plaintiffs have been damaged . . . in an amount not to exceed $600,000.00 actual damages. As a [*3] direct and proximate result of the gross negligence of the Defendant, the Plaintiffs believe they are entitled to recover punitive damages . . ..” Id. at ¶28 (emphasis added).
Defendant has filed a motion asking the Court to dismiss the Complaint so far as punitive damages are concerned on the ground that the plaintiffs have failed to adequately plead a factual basis that would provide for the award of punitive damages.
[HN1] Fed.R.Civ.P. 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than just labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
[HN2] “To survive a motion to dismiss, a complaint must contain sufficient factual matter, [*4] accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984).
[HN3] “In a diversity action . . . the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Thus, to survive a motion to dismiss, a claim for punitive damages must be plausible as defined by Tennessee law.
[HN4] The Tennessee Supreme Court has held that punitive damages are available in cases involving “only the most egregious of wrongs.” [*5] Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Accordingly, under Tennessee law, “a court may . . . award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Id. 1
1 [HN5] The Tennessee Supreme Court has expressly stated that punitive damages are not available for “gross negligence.” Hodges, 833 S.W.2d at 900-901. However, the legal sufficiency of a complaint does not depend upon whether or not the plaintiffs invoked the right “magic words,” but instead whether the facts as alleged may plausibly be construed to state a claim that meets the standards of Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)(clarifying the dismissal standard under Rule 12(b)(6) and noting that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”). Consequently, the Court will construe the plaintiffs’ allegations of “gross negligence” in paragraph 28 of the Complaint as an allegation that defendant behaved “recklessly.”
Here, defendant asserts that “Although the Complaint cursorily mentions ‘gross negligence’ one time in a conclusory manner, the Complaint [*6] lacks any facts or allegations that aver an utter lack of concern or reckless disregard such that a conscious indifference can even be implied . . ..” [Doc. 6 at 3]. The plaintiff counters that “The plaintiff in this case has identified specific detailed acts of negligence on the part of the defendant and . . . [consequently] it is clear that a jury could decide that the actions of the defendant were grossly negligent.” [Doc. 7 at 2].
The Court has reviewed the Complaint and agrees with the defendant. [HN6] “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678. Such is the case with the Complaint in this matter. The entirety of the Complaint is dedicated to explaining why the defendant was negligent. However, there is no separate mention made regarding why the defendant was reckless. To be sure, the plaintiff could argue that by alleging in multiple paragraphs that defendant “knew, or should have known,” of certain unsafe conditions, he has sufficiently pled both negligence and recklessness. However, plaintiff would be mistaken in asserting such [*7] argument.
[HN7] Under Tennessee law, “A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges, 833 S.W.2d at 901. An examination of the Complaint reveals that plaintiffs have failed to allege how or why the defendant was aware of the deficiencies in the bicycle and the biking trail. This is fatal to plaintiffs’ claim for punitive damages. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012) ( [HN8] “To survive a motion to dismiss . . . allegations must be specific enough to establish the relevant ‘who, what, where, when, how or why.”); See also, Tucker v. Bernzomatic, 2010 U.S. Dist. LEXIS 43771, 2010 WL 1838704 (E.D.Pa. May 4, 2010) (Dismissing punitive damages claim in products liability action because consumer did not allege how or why manufacturer knew that its product was dangerous).
In light of the foregoing, the Court concludes that the Complaint does not contain sufficient factual content to allow the Court to draw the reasonable inference that defendant has acted recklessly. [*8] See Iqbal, 556 U.S. at 678. The punitive damages claim will therefore be dismissed.
For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ demand for punitive damages [Doc. 5] is GRANTED and plaintiffs’ demand for punitive damages is DISMISSED.
/s/ J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
The Good, The Bad, The Ugly and the Confusing
Overall, I believe Interbike was a success for the exhibitors attending and indoors.
New Venue: The show moved from the Sands to the Mandalay Bay Convention center. I had been to the convention center many times for the ski show and was familiar with the venue. Everyone else seemed confused with the new venue and booth arrangement. However, that confusion had a big payoff. The smaller 10 x 10 booths that normally don’t see anyone till late the first day or later were packed from the beginning. I talked to one exhibitor who had expected to have meetings the morning of the first day and did not get to them because of the traffic. That’s great.
Overall everyone thought traffic was good and constant.
Mandalay Bay’s food court was closed so that left few options for food. 4 options actually, all with the same fare. Day 1 and 2 the food was expensive but great. Day 3 the lettuce started to wilt. $7.50 for a Gatorade was also a little tough, but I should be used to it by now at trade shows.
When the Food court is open, life will get better. More and better food options are always great at a trade show.
Part of the show was outside. In theory, it was a great idea, the opportunity to test bikes, check out things what would not fit or would be hard to get into a trade show. The only problem was Mother Nature did not cooperate. It was hot. Most attendees got about 150’ out to the “paddock” and quit, returning quickly to the air-conditioned indoors. However the idea works.
The venue did bring back the crit. Having two bicycle races at a tradeshow, cyclecross and a crit are great! Two of the best reasons to attend the show is to relax after the day on the show floor and watch racing rather than crowing into a bar and not getting served (sorry started thinking about OR at SLC).
It would be nice to have a couple of straight aisles to move from one end of the show to the other. It helps with orientation also.
The overall opinion of the move to Mandalay Bay from the Sands: nicer bathrooms.
Eventually, everyone will know where everyone else is and things will settle back to the old familiarity everyone felt at the Sands. Mandalay Bay is smaller than the sands, but with the outdoor space, (weather permitting) and how much nicer the entire area is, Mandalay Bay will work.
Traffic: Traffic was down; Interbike preliminary numbers reported “Overall attendance was down 7 percent from 2012”. I think 7% is optimistic. Day two of the demo seemed that way to everyone I talked to. However, the total numbers do not matter; it only matters if the right people were there and every exhibitor I talked to accept one said they were happy with the attendance.
The one exhibitor who thought numbers were down was upstairs in the main hall and could have been downstairs in health and fitness business. That area was light, light might not be the best word, void might be better.
Walking through the health and fitness business section, it seemed like the same number of exhibitors were there. However buyers were not. Part of the problem was there was nothing on the main show floor saying where to find H&F Biz. or how to get there. I finally asked someone on how to get to the H&F Biz.
The App. The Interbike App was much better, must faster and worth downloading. Don’t go to a tradeshow and not use the app if they have one. The only problem was people walking around following their phones and having me bump into them……or maybe I was following my phone and bumping into them…..
Demo. The demo is the best part of Interbike. You get to ride bikes and figure out how bikes ride. You can compare bikes side by side or ride by ride. You get to talk to the mechanics, the people who work on the bikes and ask them questions about what works and what does not work. I’m afraid that Interbike will become like the ski show. People show up for the demo and skip the tradeshow.
Consumer Day: The major talk of the show was Consumer Day: The big talk for the entire show, instead of what was new, consumer day. Originally, Interbike tried to entice retailers to bring six of their best clients to Vegas and attend Interbike on the last day, for $50 each. That was expanded to anyone who attended Vegas Cyclecross and paid less, then anyone who rode the Vegas Fondo, then members for People for Bikes. Supposedly, the difference in what you paid was a different swag bag.
Exhibitors had three issues throughout the show: How was it going to work? Information was either hard to find or just missing as far as most exhibitors were concerned.
They’re going to steal us blind. One booth used plastic wrap on their booth each night to prevent theft when no one was in the booth. Friday morning they left the wrap on.
Can we sell to the people coming in? Many exhibitors pay for part of their costs and save shipping by selling to the exhibitors the last day. Retailers have a great deal on product and exhibitors have less to pack and ship and a little cash in their pocket at the end of the show. Exhibitors were met Friday morning with a piece of paper warning them not to sell anything on the last day. This was met with mixed reaction. Some booths that normally sold everything packed up everything and some booths were empty just as they normally were.
Consumer badges had a yellow/tan background. I started counting them when I saw them. I waited by the main door at 9:00 am expecting a rush of consumers. There was no rush of anyone. (I could have been at the wrong door…..) By 4:00 Pm I had counted 36 consumer badges. I did not search; I just counted if I saw a badge. By mid-morning, many consumers had turned their badge around so they were not identifiable as a consumer, so I’m sure there were more people than 36 consumers.
Interbike reported that “Preliminary data shows that approximately 750 verified consumers attended Interbike’s 1st consumer-access day on Friday, September 20th.” I think that is a little bit of a stretch or they reported something wrong. There were not 750 people on the show floor combined on Friday: Exhibitors, Buyers, Media and Consumers. I can’t believe I missed 714 people walking around the show floor.
The biggest tragedy of consumer day was exhibitors thought the consumers had chased buyers away. The exhibitors seemed right. There appeared to be a lot less buyers on the floor the last day. This was an open discussion on the floor throughout Friday.
The one funny thing is what the “consumers” did buy. Las Vegas has a dozen booth filler companies as I call them. I met one at an Interbike a while ago. They live in Vegas and make a living selling stuff at tradeshows. Many times they have nothing to do with the show. They are contacted by the convention center owners or the tradeshow when a tradeshow has space. They just quickly move in, set up and sell what they have. It is better to have “what are they doing here” booths than empty space according to my source.
At this year’s Interbike half of the consumers were walking around with bags from one of these booths. It was some sort of muscle stimulate selling for $60+ dollars on the show floor and available online for $5.
At least there wasn’t a personal injury law firm with a booth like last year.
Should you attend?
Yes. You should always attend your industry tradeshow.
1. You find new things. Not in the big booths, but the next new thing that sits by your counter or in five years may occupy a large portion of your showroom floor. Small companies can’t hire reps and can’t come to see you. The next great bicycle thing only shot is the national tradeshow. That five minutes they can grab from you aisle you walk the back rows may be your profit next year.
The big booths have reps; the small booths have one shot.
2. You need to learn. Not just from the education seminars but from everyone there. Standards change. The legal balance on how you run your store shifts with what some think is the wind. The best chance you have to stay on top of these issues is attending a trade show. Conversations in booths and in aisles can make big difference in how you run your store.
3. Industry Support. The industry’s only real chance together is at a tradeshow. Those people, who volunteer their time and money to serve on boards for you, need to know it is worth their time and effort. You should show up to show the organizations that serve you, both as a retailer and a rider, that they are doing a good job. You need to let them know you care. The National Bicycle Dealers Association (NBDA) booth was staffed by a board member the entire show. You could walk up at any time and talk about your issues, gain their insight and let them know you appreciate their efforts.
4. You put a face on an email or a phone number. Relationships are the key to the cycling industry. The stronger the relationship the better you and the industry. When you know who you are dealing with. When their face pops into you mind when you answer the phone the better your store or your
If nothing else you can stand around with the rest of us and watch consumers walk around…….
What do you think? Leave a comment.
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Besides riding a BMX course before it is open is not smart.
Plaintiff: Bradley J. R. Cottom and Melissa Cottom
Defendant: USA Cycling, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: the danger which injured the plaintiff was Open and Obvious
Holding: for the defendant on its motion for summary judgment
In this Federal District Court case from Michigan, the court discusses the open and obvious rule applied to a mountain biker on someone else’s land. In this case, the plaintiff entered upon an unfinished BMX or dirt bike track being built by USA Cycling, Inc. and was injured in loose dirt. Because the condition of the track was open and obvious, he could not recover from the defendant.
The plaintiff was a fairly experienced BMX rider. He had seen a dirt track being built and went over to investigate. He saw construction workers as well as cyclists on the track. Talking to one construction worker, he as assured the track was safe. He rode around the track once without incident. On the second lap, he fell when he hit a rock or slipped on loose gravel and hyperextended his knee and broke his leg.
Summary of the case
Under Michigan’s law, the plaintiff was identified as a licensee. A licensee is someone who:
…is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.
The other two categories describing people on another’s land are trespasser and invitee. A trespasser is there without any benefit for the land owner generally, and an invitee is one who is there for the benefit to the landowner and at the bequest of the landowner.
The defense is whether the danger that injured the plaintiff was hidden or open and obvious.
USA Cycling [defendant] argues that because the condition of the track was open and obvious, it did not owe Cottom [plaintiff] a duty of protection or warning. USA Cycling notes that Cottom was able to observe the track prior to riding, that he rode around the track one time without falling, and that he was able to get a feel for the track conditions prior to his accident. Thus, according to USA Cycling, there were no hidden dangers present and it cannot be held liable for Cottom’s accident.
To prove the danger that injured the plaintiff was not open and obvious the plaintiff must complete a two-step test. Plaintiff must prove that the defendant should have known of the potentially dangerous condition and that the plaintiff did not know about the dangerous condition. The court stated the plaintiff failed to prove the second part of the test because there is no requirement to safeguard licensees from dangers that are open and obvious because those dangers come with their own warnings. The open and obvious test is an objective one, whether a reasonable person in the position of the plaintiff would have foreseen the danger.
…there is no duty to take steps to safeguard licensees from conditions that are open and obvious, for “such dangers come with their own warning. A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.”
The plaintiff’s experience, visual review of the track and one lap without incident defeated his claim.
Cottom, an experienced BMX cyclist, was able to casually inspect the track and the track conditions before his accident by watching other bikers on the track and then riding on the track once himself. A reasonable person in this position would foresee the dangers the track presented, making the condition of the track open and obvious. In fact, most Americans have ridden bicycles in their youth and know that bike riders lose control of their bikes in loose dirt or that a rock will cause a bike to tip over.
First, the unpacked, gravelly condition of the track surface did not make the likelihood of injury higher than an ordinary, complete bike track. It is just as difficult for an ordinarily prudent person to ride a bike on a race track of loose dirt without losing control of the bike or falling as it is on any other dirt track. Second, there was not a high potential for severe harm. Thousands of people ride bikes every day, and many of them fall while riding their bikes on sidewalks, bike paths, tracks or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case.
Because the plaintiff was able to inspect the track himself, had seen other bikers on the track and ridden the track once before falling on this second lap the plaintiff had a chance to see any dangers. The danger that cased the injury, therefore, was open and obvious and the defendant did not owe any greater duty to the defendant licensee.
Once this burden was met by the defendant the only option left to the plaintiff was to argue the danger was unreasonable. Whether there were special aspects of the danger that created or differentiated the risk. The court explained the differences this way.
For example, a pothole in a parking lot presents an open and obvious risk for which the premise’s owner would not normally be liable if someone were to trip and fall because of the hole. An unguarded, 30-foot-deep pit might present an unreasonable risk, however, because of the danger of death or severe injury.
The plaintiff was unable to argue that a rock on a dirt track was an unreasonable danger.
Thousands of people ride bikes everyday, and many of them fall while riding their bikes on sidewalks, bike paths, tracks or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case.
The risks of the track were ordinary, not an unguarded deep pit. Nor was he able to prove the person who gave him the assurance that the track was safe was an employee of the defendant or that the person providing the warning had any greater knowledge about the track than the plaintiff.
The court granted the defendants motion for summary judgment.
So Now What?
This decision besides explaining the landowner’s duty for hidden dangers and the defense of open and obvious danger has great language in it for any cycling decision. The court sets forth facts that falling is a part of cycling. “Bumps, bruises, and scrapes or occasionally broken bones or more serious injures” are normal for bike riders. If you are a land owner, bike rental company, or cycling retailer, this is important language to keep available or even incorporate into your release.
If you are a land owner offering your land to someone, you should review your risks with an attorney specializing in real estate. You have multiple defenses available to you so you can allow people the opportunity to recreate. The first is all states have a statute that provides indemnity for landowners who allow others to recreate for free. These laws are called Recreational Use statutes. They differ wildly from state to state and the amount of protections they provide. Make sure you understand what you must and must not do to qualify for this protection.
What do you think? Leave a comment.
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Bradley J. R. Cottom and Melissa Cottom, Plaintiffs, v. USA Cycling, Inc., Defendant.
Case No. 1:01-CV-474
United States District Court for the Western District of Michigan, Southern Division
2002 U.S. Dist. LEXIS 6745
April 11, 2002, Decided
April 11, 2002, Filed
Counsel: For BRADLEY J.R. COTTOM, MELISSA COTTOM, plaintiffs: Michael J. Cronkright, Michael J. Cronkright, PC, Lansing, MI.
For USA CYCLING INC, defendant: John J. Hoffman, Thomas, DeGrood, Witenoff & Hoffman, Southfield, MI.
Judges: GORDON J. QUIST, UNITED STATES DISTRICT JUDGE.
Opinion By: GORDON J. QUIST
Plaintiffs, Bradley Cottom (“Cottom”) and his wife Melissa, filed this premises liability action against Defendant, USA Cycling, Inc. (“USA Cycling“), in state court after Cottom suffered injuries in a bicycling accident. USA Cycling removed the action to this Court based on diversity jurisdiction, and the matter is now before the Court on USA Cycling’s motion for summary judgment. Oral argument on the Motion was heard on April 9, 2002.
Cottom, an avid dirt bicycle rider, participated in competitive BMX bicycle racing from age 14 to 20. (Cottom Dep. at 4-5, Pl.’s Br. Resp. Ex. A.) Since that time, he has primarily restricted himself to recreational riding on streets and bike trails. n1 (Id. at 10-11, 20.) At approximately 5 p.m. on July 12, 2000, Cottom took his high performance Diamondback Reactor BMX bicycle to Gier Park in Lansing, Michigan. (Id. at 6, 15.) USA Cycling was constructing a dirt bike race track at the park, and Cottom went to investigate the progress of the track construction. (Id. at 6-7.) Cottom had been to the park approximately one month before and had seen a bulldozer working at the site. (Id. at 7-9.) At that time, he observed approximately 12 riders using the track. (Id. at 9.) When Cottom arrived at the park on July 12, he saw a bulldozer and men who appeared to be construction workers, but they were not working on the track at the time. (Id. at 47, 103.) Other people present at the park were picking up rocks and removing them from the track. (Id. at 93, 103.) There was no fence or other barricade around the track, and no warning or construction signs were posted. (Compl. PP 8-9, 19f.) Other riders were using the dirt track, and Cottom retrieved his bike from his truck in order to join them on the track. (Cottom Dep. at 26-28.) The track was dry, and it was still daylight when he began to ride. (Id. at 26.)
n1 Cottom was 36 years old at the time of his deposition in November 2001. (Cottom Dep. at 4.)
Cottom rode his bike around the track one time without incident. (Id. at 29.) Plaintiffs allege in the Complaint that Cottom stopped to discuss the track conditions with a worker at the track and that the worker assured him that the track was safe. (Compl. P 10.) Plaintiffs have not presented evidence regarding the identity of this person. It is unknown whether the person was an employee or agent of USA Cycling, a construction worker employed by an independent contractor, or merely a bystander, a passerby, or a volunteer picking up rocks. There is nothing in the record to indicate that the person had any more experience on the track or knowledge of the track conditions than Cottom had.
On his second lap around the track, Cottom was riding through a banked turn and heading toward a jump when he lost control of his bike. (Cottom Dep. at 61.) He hyperextended his knee while attempting to recover control and fell to the ground, injuring his leg. (Id. at 32-34, 40.) Cottom testified at his deposition that he was not sure exactly what caused his accident, but he surmised that his tire may have hit a rock or a rut or sank into loose, gravelly dirt. (Id. at 30-32, 92-93.) According to Cottom, his bike was functioning properly and he was “taking it easy” by traveling between 5-10 miles per hour at the time, so neither the condition of his bike nor his speed caused him to lose control. (Id. at 41, 91-92.) Cottom’s wife was present at the park at the time, but she did not see the fall. (Id. at 42.)
Cottom was taken to a hospital where he was admitted for four days. (Compl. P 13.) He fractured his lower left leg in the fall and has undergone three corrective surgeries on his leg and knee since the accident. n2 (Medical Records, Pl.’s Br. Resp. Ex. B.)
n2 The Complaint states that Cottom injured his right leg, but at his deposition, Cottom testified that it was his left leg that was injured. (Compl. PP 11, 23; Cottom Dep. at 33.) Cottom’s medical records confirm that it was his left leg that was fractured. (Medical Records, Pls.’ Br. Resp. Ex. B.)
[HN1] Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S. Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S. Ct. at 2511 (citing Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L. Ed. 867 (1872)).
[HN2] A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with “concrete evidence” that there is a genuine issue of material fact for trial. Id.; Frank v. D’Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992)(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
The parties agree that Michigan law governs the substantive issues of this case because all of the events occurred in Michigan, the forum state. (Def.’s Br. Supp. at 8-9; Pls.’ Br. Resp. at 4.) See Haque Travel Agency, Inc. v. Travel Agents Int’l, Inc., 808 F. Supp. 569, 572 (E.D. Mich. 1992).
USA Cycling makes several arguments as to why it is entitled to summary judgment. Because the Court believes that the “open and obvious” argument is dispositive, the Court will address only that argument.
USA Cycling argues that because the condition of the track was open and obvious, it did not owe Cottom a duty of protection or warning. USA Cycling notes that Cottom was able to observe the track prior to riding, that he rode around the track one time without falling, and that he was able to get a feel for the track conditions prior to his accident. Thus, according to USA Cycling, there were no hidden dangers present and it cannot be held liable for Cottom’s accident. The Court agrees.
For the purposes of this motion, the parties agree that Cottom entered USA Cycling’s premises as a licensee. (Def.’s Br. Supp. at 10; Pls.’ Br. Resp. at 8-9.) The Michigan Supreme Court has defined licensee status and explained the duty owed to a licensee by a premises owner:
[HN3] A “licensee” is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.
Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596-97, 614 N.W.2d 88, 91-92 (2000)(citation omitted).
Plaintiffs contend that USA Cycling knew of the dangers presented by an unfinished dirt track, and they submit as evidence publications from USA Cycling regarding safety guidelines and its recommendations concerning BMX track conditions that discuss the dangers of unpacked, loose dirt tracks. (Insurance Guidelines and Safety Manual, Pls.’ Br. Resp. Ex. F; Building the Track – Suggestions, Pls.’ Br. Resp. Ex. E.) Even assuming that USA Cycling knew of the dangers presented by the track at Gier Park, this assertion only gets Plaintiffs halfway over their burden of proof. In order to hold USA Cycling liable for Cottom’s accident, Plaintiffs must not only show that USA Cycling knew or should have known of the potential danger on the premises but also that Cottom did not know about it. This is because [HN4] there is no duty to take steps to safeguard licensees from conditions that are open and obvious, for “such dangers come with their own warning.” Pippin v. Atallah, 245 Mich. App. 136, 143, 626 N.W.2d 911, 914 (2001). A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.'” Abke v. Vandenberg, 239 Mich. App. 359, 361-62, 608 N.W.2d 73, 75 (2000) (per curiam) (alteration in original) (quoting Novotney v. Burger King Corp., 198 Mich. App. 470, 475, 499 N.W.2d 379, 381 (1993)). The test is an objective one, asking whether a reasonable person in the position of the plaintiff would foresee the danger. Hughes v. PMG Bldg., Inc., 227 Mich. App. 1, 11, 574 N.W.2d 691, 696 (1997).
Cottom, an experienced BMX cyclist, was able to casually inspect the track and the track conditions before his accident by watching other bikers on the track and then riding on the track once himself. A reasonable person in this position would foresee the dangers the track presented, making the condition of the track open and obvious. In fact, most Americans have ridden bicycles in their youth and know that bike riders lose control of their bikes in loose dirt or that a rock will cause a bike to tip over. Therefore, USA Cycling is absolved of potential liability unless Plaintiffs can show that the condition of the track posed “an unreasonable risk of harm.” Abke, 239 Mich. App. at 361, 608 N.W.2d at 75 (citing Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich. App. 490, 498-99, 595 N.W.2d 152, 156-57 (1999)). Michigan courts have explained that “special aspects of a condition [might] make even an open and obvious risk unreasonably dangerous.” Lugo v. Ameritech Corp., 464 Mich. 512, 517, 629 N.W.2d 384, 386 (2001). In Lugo, the Michigan Supreme Court discussed the “special aspect” exception to the open and obvious doctrine:
[HN5] With regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.
. . . .
. . . In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.
Id. at 517-19, 629 N.W.2d at 387-88. For example, a pothole in a parking lot presents an open and obvious risk for which the premises owner would not normally be liable if someone were to trip and fall because of the hole. An unguarded, 30-foot-deep pit might present an unreasonable risk, however, because of the danger of death or severe injury. Id. at 520, 629 N.W.2d at 388.
Cottom has failed to present a genuine issue of material fact about whether the unfinished condition of the track made it unreasonably dangerous. First, the unpacked, gravelly condition of the track surface did not make the likelihood of injury higher than an ordinary, complete bike track. It is just as difficult for an ordinarily prudent person to ride a bike on a race track of loose dirt without losing control of the bike or falling as it is on any other dirt track. Second, there was not a high potential for severe harm. Thousands of people ride bikes everyday, and many of them fall while riding their bikes on sidewalks, bike paths, tracks or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case. The track at Gier Park presented these same types of dangers, making it more like an ordinary pothole and less like a deep, unguarded pit. Finally, Cottom has failed to support with any evidence the allegation that an employee or agent working on the track assured him that it was safe for use. There is no indication in the record that this person was actually an employee or agent of USA Cycling rather than a passerby or bystander who came to watch people ride on the track. Moreover, there is nothing to demonstrate that he or she was any more knowledgeable about the safety of the track conditions than was Cottom. In fact, Cottom had the benefit of riding around the track one time and experiencing the track conditions firsthand, and he himself concluded that the track was suitable for riding. (Cottom Dep. at 48-49.)
USA Cycling is entitled to summary judgment because the dangers presented by the track were open and obvious and Plaintiffs have failed to show that there were special aspects of the track making it unreasonably dangerous.
For the foregoing reasons, the Court will grant USA Cycling’s motion for summary judgment.
An Order consistent with this Opinion will be entered.
Dated: APR 11 2002
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
For the reasons stated in the Opinion filed this date,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (docket no. 24) is GRANTED.
This case is closed.
Dated: APR 11 2002
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
Thanks to Brad Waldron at Kali Protectives for giving me the visual to explain this.
A helmet needs to absorb energy to work. The more energy a helmet absorbs the more protection a helmet provides. If you look at the inside of your helmet
what is there to absorb energy?
A helmet does not work by being a hard surface to protect your head from head injuries. Hard surfaces protect your head from pointed objects. Think Knights of the Round Table and spears and arrows. If you are riding a bike or skiing and someone is shooting arrows at you, you need a hard helmet.
Hitting the ground is different. Your brain bounces around inside your skill causing damage; a concussion. You need something to absorb the impact and soften the blow or extend the time the impact (force) is being applied to your head, which softens the blow. Helmets as they are currently used, do not do that.
Think about the issue this way. If you drop a weight on an egg, say 11 pounds from 4 feet the egg is going to smash. If you put a book on top of the egg and drop the 11-pound weight the egg is still going to smash. The amount of energy transmitted to the egg maybe reduced by the book; however, the energy reduction is not enough to protect the egg.
A Bicycle or ski helmet is the same way. There is some energy absorption, but not enough to protect your brain.
If you want to know why I picked 11 pounds from 4 feet that is the test for helmets. Watch Video of cycling helmet testing. No one is testing the force on the head, if the helmet absorbs any of the force, or if the impact broke your neck.
On top of that, always remember the helmet is tested with the impact landing in the center top of the helmet. When you fall to make sure you drive your head into the ground hitting the helmet in the center on top of your head to receive the maximum protection.
See for yourself. This is the UIAA (European) Test for Helmets.
This test is for climbing and some European ski helmets. In the US, a bike helmet and ski helmets are not tested for lateral force, slippage or chin strap strength.
There are some organizations that test the helmets to greater extremes such as Consumer Reports, but all they are doing is testing the helmet. They are not looking at whether the helmet protects your head. See Consumer Reports Bike Helmet Testing.
We are not testing whether a helmet looks good after an impact. We are testing whether the helmet protects your head from an impact and the drop test does not test that sufficiently, if at all.
If you want to test this yourself, figure a way to stick an egg under a helmet and drop a weight on the helmet. The egg is still going to crack or break.
Yes, your head is not an egg. It is just easier to see the results with an egg. The helmet did not decrease the pressure enough to protect the egg. The injury still occurred. If you could take the time to measure the breaking strength of an egg and then start below that number and drop weights on the helmet you would see a difference eventually which would be the amount of protections the helmet provides. However, that number would be small and probably no different from what a plastic bowl would do.
If you really want to test this, go buy two eggs. Drop one from 15 feet and see what happens to the egg. Tape the other one in your helmet and drop it from the same height. The egg will crack (and make a real mess in your helmet).
Want more laughs about this? Watch this video where a cardboard helmet does a better job of protecting your head, by absorbing more force, than a bicycle helmet. See Kranium helmet Crash Test
Yes, your head is not an egg. Yes, a helmet will protect you from minor hits. Yes, a helmet is probably better than not using a helmet, unless the process stops you from riding a bike or skiing. The health benefits of activity out weight the risk of a head injury.
If that is the case, then why not wear a helmet when you drive, shower or work in the kitchen. All three have a far greater risk of head injuries then cycling.
However, we have not looked at whether using helmets deters activities. See TEDxCopenhagen – Mikael Colville-Andersen – Why We Shouldn’t Bike with a HelmetI love the fact the in the video Mr. Colville-Andersen lets you know that the helmet tests were designed for pedestrians wearing helmets. Also he points out that helmet laws do not reduce head injuries. They reduce the total number of people riding bikes, which results in a reduction of head injuries.
Nor have we looked at the issue of the advertised protection versus the real protection afforded by a helmet.
Finally, we have not looked at whether wearing a helmet makes you react in a way to protect other parts of your body rather than your head. If you fall you natural protect your head. Your arms go out to keep your head form hitting the ground and then your cradle your head from being hit or hitting the ground. This accounts for tons of videos and statements when people hold up their battered helmet and say my helmet saved my life.
However, a helmet will not save your life. If you want to be cool and have a helmet that might protect your head watch this video: Hövding krocktest
But without bike and ski helmets where would we mount our video cameras?
Gourley, Jim, Bicycle Times August 1, 2011, Pull Your Head Out of Your…Helmet
Other Articles on Helmets:
A helmet manufacture understands the issues(Uvex, Mouthguards)
What do you think? Leave a comment.
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Colorado ranks number 2 for bicycle transportation enhancements
Since with the transportation bill coming out of congress these numbers are now just figments of our imagination we should at least relieve the good old days.
Here is the top five states in each category from the article.
See Which States Invest the Most Federal Dollars on Bike/Ped Projects? The table can be downloaded here! It will download or open as an Excel spreadsheet.
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The article tells you how to encourage your employees to bike to work.
The article Get Your Employees Biking to Work is actually full of great information. The article not only talks about the reasons why you as an employer want to encourage your employees to bike but what your employees may want to ride their bikes to work.
Read the article, follow the advice, and encourage your employees to ride their bikes to work.
Read the article: Get Your Employees Biking to Work
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How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?Posted: September 14, 2011
Crumple zones and skid marks don’t work in cycling.
When two cars collide there are several things besides the statements of the drivers that a cop (police officer when they do things correctly and cop when they don’t) can use to determine who was a fault. When a car hits cyclists, there are one set of skid marks, the cars, but rarely any on the pavement from the bike. Consequently it will be your statement against the drivers and cops have an affinity to believe the driver.
What do you do and in what order to make sure the correct person is handed a ticket and you are your bike are taken care of.
Before you take off on a ride:
- Get a smartphone and/or
- Get a GPS unit that records your travels in detail
- Download to your smartphone an app that tracks your location and time in as small of increments as possible.
When you go on your ride:
- Start the GPS unit or your smart phone program
- Tell someone where you are going and when you should be expected back
- Make sure you can dial 911 easily and quickly from your phone
- Make sure you can call friends if need help.
- Make sure you know how to use your phone’s camera
a. Make sure you know how to upload photos to some site when you take them at the same time leaving a copy on your phone
- F. Put an app on your phone that allows you to record conversations and upload or email those files to a third party or upload them
If you are in an accident:
- Call 911
- Tell them you have been involved in an accident, there are injuries (if there are) and damages and request the police
Do not state that one of the vehicles is a bike if you can because that may slow response in some jurisdictions.
- Photograph everything, the car, the bike, the scene and any witnesses, especially reluctant ones.
- Get names and addresses of any witnesses and ask them to stick around until the cops arrive
- Take a picture of the witnesses so you can match the information to each witness
- Better photograph their driver’s license
- Upload your photographs to a safe site, keeping copies on your phone to show the cop
- Get the driver’s information and while you’re doing that
- Record the driver’s conversation. Initially most people tell the truth, only when the cops arrive do they start to change stories.
However, do not give all of this to the police officer unless you have backed it up or have copies; it may disappear. If the conversation is backed up by the evidence or telling, let the officer hear it and tell the officer as soon as you can get it downloaded you can provide a copy. However you cannot give him the smartphone as it is your only phone. Ask the officer if you can email the recording to him from your phone and do so along with any photographs.
If your GPS allows you, do the same with your track on the GPS. Tell the officer it requires special software that you have to download and print the track and you will deliver it to him ASAP, but be hesitant about giving him the GPS.
Always set your GPS to record as much information as possible for each of your rides. A report that only provides data every several minutes may not sure you stopped at the stop sign before proceeding into the intersection. However multiple GPS hits at one spot with the time stamp will show you obeyed the law.
At the same time, always ride as the law requires. If you do not you will provide the police with the information needed to ignore your story or even write you’re a ticket
Get the case number from the officer and his information. Many officers carry business cards now days. Get the officers business card, and take a photograph of it with your phone and upload it. (In case you lose it or it gets sweaty and can’t be used.) Find out how you can supplement the report with a transcript or a copy of the recording, photographs and a download of the GPS report showing your mode of travel.
If you have the GPS track on your phone make sure you email a copy of the track, photographs and recording to yourself ASAP to have a back copy of everything.
You may not be able to win the argument at the scene; cops are tuned to disregard cyclists. Put together a package of the information you have and deliver it to the police officer. Get a receipt when you do. If you do not hear from the officer within 7 days, find out the officers supervisor and give a copy of your information to him, with a cover letter. Also at that time, give a copy of the report to your county commissioner or city council person anyone who was elected to their position and has responsibility for the police.
If that does not work, go to the press and/or a police overview group. The squeaky wheel gets greased and until you make enough noise that someone cares, you may not get satisfaction.
The whole key is to get enough information to be able to prove your point from anyone or anything other than you. Photographs, recordings, notes and other people are more credible than cyclists in many cases when pleading a case. If nothing else, those third parties and things will support your claims.
What do you think? Leave a comment.
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Herbst et al. v. The Guilford Yatch Club Association, Inc. et al., 2009 Conn. Super. LEXIS 765
Sharon Herbst et al. v. The Guilford Yatch Club Association, Inc. et al.
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN
2009 Conn. Super. LEXIS 765
March 30, 2009, Decided
March 31, 2009, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
JUDGES: [*1] John F. Cronan, J.
OPINION BY: John F. Cronan
This personal injury action was commenced on August 14, 2008, by plaintiff Sharon Herbst, via service of writ, summons and complaint on the agents for service of defendants Guilford Yacht Club Association, Inc. and Unit Owners Association at Guilford Yacht Club, Inc. The plaintiff alleges that she suffered serious injuries when, as a business invitee of the defendants, she was thrown off of a malfunctioning bicycle owned and maintained by the defendants.
The plaintiff’s ten-count complaint alleges five counts against each defendant, with counts six through ten re-alleging the facts and claims in counts one through five. Counts one and six allege negligence for failure to inspect, maintain, house, and test the defective bicycle, failure to warn that the bike was unsafe, and failure to provide the plaintiff with a helmet or access to helmets. Counts two and seven allege loss of consortium on the part of Richard Herbst, husband of plaintiff Sharon Herbst. 1 Counts three and eight allege recklessness for the same acts or omissions described in counts one and six. Counts four and nine allege Connecticut Unfair Trade Practices Act (CUTPA) 2 violations [*2] on the ground that the defendants advertised free use of bicycles to increase business from transient club members while failing to take steps to ensure that the bicycles were safe for use, thus violating Connecticut public policy by placing profits ahead of safety and causing substantial injury to consumers and/or providing the defendant with an unfair advantage over competing marinas. Counts five and ten allege spoliation of evidence on the ground that the defendants repaired the bicycle in question while aware of the impending action.
1 Although Richard Herbst is a plaintiff in this action, the claims central to this motion solely involve Sharon Herbst and therefore the court will refer to her as “the plaintiff” for purposes of this decision.
2 Although the plaintiff fails to allege the violation of a particular statute in her complaint, both parties make arguments referring to the Connecticut Unfair Trade Practices Act, General Statutes §42-110a et seq., therefore the court will address their arguments under that statute.
On November 28, 2008, the defendants filed a motion to strike (# 117) paragraphs 12(e) and 12(f) of counts one and six, and counts three, four, eight and nine entirely. [*3] The defendants filed a memorandum of law in support (# 118). The plaintiff filed an objection to the motion to strike (# 120) and corresponding memorandum of law in opposition (# 121) on December 11, 2008. The parties presented oral arguments to the court on January 12, 2009.
[HN1] “The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.” (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). “[I]n determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Counts One and Six
The defendants move to strike paragraphs 12(e) and (f) of counts one and six. These [*4] two paragraphs allege that the defendants negligently caused the plaintiff’s injuries “in that the defendant did not provide the plaintiff with a bicycle helmet when they could and should have done so” and “in that the defendant failed to make bike helmets visible and/or readily assessable [sic] to business invitees.” The defendants argue that “there exists no legal duty on the part of the defendants to provide and/or make available a bicycle helmet to an adult.” (Motion to Strike, p. 5.) The plaintiff responds that the defendant cannot move to strike only certain portions of a count, but rather only a count as a whole, and that, even if the court were to examine the merits of the defendants’ arguments, the plaintiff sufficiently pleaded a claim for common-law negligence on the ground that the defendants failed to maintain safe premises for business invitees by offering bicycles to visiting boaters without providing helmets. (Memorandum in Opposition, pp. 4-5.)
[HN2] “‘Although there is a split of [opinion], most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause [*5] of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense . . . Prior to the 1978 Practice Book revision, a motion to strike . . . individual portions or paragraphs of a count did not lie if the count as a whole stated a cause of action . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of [opinion] in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action.’ (Citations omitted; internal quotation marks omitted.) Trimachi v. Workers’ Compensation Commission, Superior Court, judicial district of New Haven, Docket No. CV 97 0403037 (June 14, 2000, Devlin, J.) (27 Conn. L. Rptr. 681, 2000 Conn. Super. LEXIS 1548).” Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079, (May 21, 2007, Tanzer, J.) (43 Conn. L. Rptr. 458).
The plaintiff alleges the breach of a variety of duties under its general claim of negligence in counts one and six. The plaintiff’s [*6] claims relating to the defendants’ alleged failure to provide bicycle helmets identifies a purported duty that may be properly recognized as a claim entirely distinct from the alleged duties pertaining to the maintenance of the bicycle. As such, this is an instance where it is appropriate to review the legal sufficiency of the identified individual paragraphs via a motion to strike.
The claims in paragraphs 12(e) and (f) of counts one and six are not legally sufficient to state a claim upon which relief can be granted, and therefore the court grants the defendant’s motion to strike those paragraphs. The plaintiffs claim that the defendants had a common-law duty to provide bicycle helmets to adults finds no support in Connecticut law. The only bicycle helmet statute in Connecticut, General Statutes §14-286d, requires protective headgear solely for children under the age of sixteen. 3 The plaintiff is older than sixteen and therefore the requirements of §14-286d are inapplicable.
3 The relevant portions of §14-286d state: [HN3] “(b) No child fifteen years of age or under shall operate a bicycle on the traveled portion of any highway unless such child is wearing protective headgear which conforms [*7] to the minimum specifications established by the American National Standards Institute or the Snell Memorial Foundation’s Standard for Protective Headgear for Use in Bicycling. Failure to comply with this section shall not be a violation or an offense. Failure to wear protective headgear as required by this subsection shall not be considered to be contributory negligence on the part of the parent or the child nor shall such failure be admissible in any civil action . . . (d) A person, firm or corporation engaged in the business of renting bicycles shall provide a bicycle helmet conforming to the minimum specifications established by the American National Standards Institute or the Snell Memorial Foundation’s Standard for Protective Headgear for Use in Bicycling to any person under sixteen years of age who will operate the bicycle if such person does not have a helmet in his possession. A fee may be charged for the helmet rental. Violation of any of the provisions of this subsection shall be an infraction.”
[HN4] “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular [*8] situation at hand . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy . . . [W]e are not required to address the first prong as to foreseeability if we determine, based on the public policy prong, that no duty of care existed.” (Citation omitted; internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
The plaintiff has not identified any prior Connecticut court that recognizes the duty of a bicycle purveyor to provide a helmet to a would-be cyclist over the age of sixteen. Several superior court decisions have addressed the related question of whether there exists a duty [*9] to wear a bicycle helmet in the context of a special defense of contributory negligence. The court in Dubicki v. Auster, Superior Court, judicial district of New London at Norwich, Docket No. 107712 (March 8, 1996, Hendel, J.) (16 Conn. L. Rptr. 301, 1996 Conn. Super. LEXIS 671), considered the question of “whether an adult bicycle rider can be considered contributorily negligent for his or her failure to wear a bicycle helmet while riding his or her bicycle.” The court noted that the language of §14-286d, “as well as a review of the legislative history . . . reveals that the statute was primarily designed to encourage the use of headgear by children” and that “[t]here is no similar statute for adults.” Id., 302, 1996 Conn. Super. LEXIS 671. The court concluded that “[t]here being no statutory duty imposed on an adult rider to wear [a helmet], there can be no contributory negligence for an adult rider’s failure to do so.” Id.
In an analogous case, the court in Ruth v. Poggie, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 93 52750 (November 22, 1993, Klaczak, J.) [10 Conn. L. Rptr. 412, 1993 Conn. Super. LEXIS 3090], concluded that an injured motorcyclist could not be found contributorily negligent for failing to wear a helmet because “there is [*10] no duty, statutory or otherwise, for motorcycle operators in Connecticut to take the safety precaution to wear a protective helmet. Thus . . . it cannot be said that the failure to wear a motorcycle helmet amounts to negligence on the party of the rider.”
As this court agrees with those decisions holding that an adult cyclist does not have a duty to wear a helmet, and further observes that the legislature clearly decided to limit any such duty to children under the age of sixteen, this court now holds that a bicycle purveyor is under no duty to provide an adult bicyclist with a helmet. The practical reason for drawing this line is self-evident: an adult is fully capable of rationalizing the risks of riding a bicycle with or without a helmet, and may choose to act accordingly. The legislature’s policy of allowing each individual adult to choose whether to use a helmet is exemplified by the age cap on the protective headgear requirement for bicyclists in §14-286d as well as the legislature’s repeal of the so-called “motorcycle helmet law” in 1976. See General Statutes (Rev. to 1975) §14-289e; Ruth v. Poggie, supra, Superior Court, Docket No. CV 93 52750. As illustrated in this case, if [*11] the plaintiff was concerned about her lack of a helmet, she could have chosen not to ride the bicycle. The defendants did not owe the plaintiff a duty to provide a bicycle helmet and the court therefore grants the defendants’ motion to strike paragraphs 12(e) and (f) of counts one and six.
Counts Three and Eight
The defendants move to strike counts three and eight on the ground that the plaintiff has “failed to plead facts alleging malicious, wanton and/or reckless conduct on the part of the defendants” and “merely reiterate the claims made in the negligence counts.” (Motion to Strike, p. 9.) The plaintiff responds that “the specific facts alleged in the case at bar are sufficient to satisfy the elements necessary to support a claim for reckless conduct so as to survive a motion to strike.” (Memorandum in Opposition, p. 6.) The court agrees with the plaintiff and denies the defendants’ motion to strike counts three and eight.
[HN5] “Recklessness is a state of consciousness with reference to the consequences of one’s acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there [*12] must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . [S]uch aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.” (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
The plaintiff utilizes language explicit enough to inform the court and the defendants that both negligence and reckless misconduct are being asserted. Furthermore, the plaintiff has alleged facts that, viewed in the light most favorable to sustaining the claim and treated as admitted for purposes of deciding this motion, support a claim for recklessness. The plaintiff’s detailed allegations regarding the purchase, [*13] maintenance and inspection of the bicycle are sufficient to sustain a claim of recklessness. The defendants’ motion to strike counts three and eight is therefore denied.
Counts Four and Nine
The defendants move to strike comas four and nine on the ground that the plaintiff’s CUTPA claims are legally insufficient because “(1) the alleged wrongful act was not conducted in the course of the defendant’s primary line of business; and (2) the plaintiffs cannot establish that Sharon Herbst suffered an ‘ascertainable loss’ as required by General Statutes §42-110g(a).” (Motion to Strike, pp. 14-15.) The plaintiff argues that she has established a prima facie CUTPA claim because she alleges in the complaint that the defendants operate a full service recreational facility that includes the advertising and provision of bicycles to increase business at the expense of competitors and that the solicitation of cycling business while providing unsafe bicycles offends public policy. (Memorandum in Opposition, pp. 10-11.) The plaintiff also argues that her personal injuries are an ascertainable loss recoverable in a claim for a CUTPA violation. Id. The defendants’ arguments rely on questions of fact not [*14] properly addressed at this juncture and therefore the court denies the motion to strike counts four and nine.
[HN6] “It is well settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier . . . To establish a CUTPA violation, a claimant’s evidence must establish that the conduct at issue falls within one of three criteria. A court must decide whether the conduct (1) offends public policy, (2) is immoral, unethical, oppressive or unscrupulous or (3) causes substantial injury to consumers, competitors or other businessmen . . . Whether the defendant is subject to CUTPA is a question of law, not fact.” McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 520-21, 890 A.2d 140 (2006). “[A] CUTPA violation may not be alleged for activities that are incidental to an entity’s primary trade or commerce.” Id., 523. “[T]he touchstone for a legally sufficient CUTPA claim is the implication that the acts complained of have ‘an entrepreneurial or business aspect.'” Simms v. Candela, 45 Conn. Supp. 267, 273, 711 A.2d 778 (1998) [21 Conn. L. Rptr. 479], quoting Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997).
Without [*15] evidence from either party, and accepting the facts as alleged in the complaint as true for purposes of resolving this motion, the court cannot say definitively that cycling is not a component of the defendants’ primary line of business. The plaintiff alleges that the defendant operated and managed a commercial boating marina but also repeatedly alleges that bicycling was a component of that operation. The court is unwilling to draw adverse factual inferences that the bicycling business was merely incidental to the marina business without additional facts not properly presented in a motion to strike. As such, the court cannot strike counts four and nine on this ground.
Similarly, the plaintiff alleges a variety of losses including those for physical injuries, medical care, lost wages, and the loss of enjoyment of life, and alleges that her damages resulted in part because of the defendants’ alleged CUTPA violations. Both parties acknowledge that there is a split of opinion in the superior court regarding whether damages for personal injuries may be recoverable under CUTPA. See, e.g., Rodriguez v. Westland Properties, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, [*16] Docket No. CV 02 077228 (March 17, 2004, Upson, J.) (36 Conn. L. Rptr. 702, 2004 Conn. Super. LEXIS 615) (“[d]espite CUTPA’s broad language and remedial purpose, the plaintiff’s alleged [slip and fall] injuries do not satisfy the distinction alluded to in Haynes because they are personal, rather than economic”); Simms v. Candela, supra, 45 Conn.Sup. 274 (“[the plaintiff], like most personal injury plaintiffs, alleges that he has suffered economic losses, including medical expenses and lost wages, as a result of his fall. Assuming this allegation to be true, he is a ‘person who suffers [an] ascertainable loss of money’ “). Although the plaintiff’s claims may appear to be only tenuously derived from the defendants’ “entrepreneurial or business aspect”; see Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 32-35; the plaintiff has adequately pleaded conduct and damages that could potentially be construed as ascertainable losses derived from a violation of CUTPA. The “issue as to whether this loss resulted from the CUTPA violation complained of . . . is a factual issue appropriately left to the judge or jury hearing the case.” Simms v. Candela, supra, 45 Conn.Sup. 274. The court therefore denies the defendants’ [*17] motion to strike counts four and nine.
For the foregoing reasons, the court grants the defendants’ motion to strike paragraphs 12(e) and 12(f) of counts one and six, and denies the motion to strike counts three, four, eight and nine.
Stelluti v. Casapenn Enterprises, Llc, d/b/a Powerhouse Gym, 203 N.J. 286; 1 A.3d 678; 2010 N.J. LEXIS 750Posted: January 10, 2011
GINA STELLUTI, Plaintiff-Appellant, v. CASAPENN ENTERPRISES, LLC, d/b/a POWERHOUSE GYM, Defendant-Respondent, and ABI PROPERTY PARTNERSHIP, d/b/a PAVILION CENTER and STAR TRAC FITNESS, Defendants.
A-43 September Term 2009
SUPREME COURT OF NEW JERSEY
203 N.J. 286; 1 A.3d 678; 2010 N.J. LEXIS 750
March 9, 2010, Argued
August 5, 2010, Decided
PRIOR HISTORY: [*1]
On certification to the Superior Court, Appellate Division, whose opinion is reported at 408 N.J. Super. 435, 975 A.2d 494 (2009).
Stelluti v. Casapenn Enterprises, LLC, 408 N.J. Super. 435, 975 A.2d 494, 2009 N.J. Super. LEXIS 173 (App.Div., 2009)
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Gina Stelluti v. Casapenn Enterprises, LLC, d/b/a Powerhouse Gym (A-43-09)
Argued March 9, 2010 — Decided August 5, 2010
LAVECCHIA, J., writing for a majority of the Court.
The Court considers whether a pre-injury waiver of liability agreement that the plaintiff, Gina Stelluti, signed when she became a member at a private fitness center precludes her from recovering for her injuries.
On January 13, 2004, Stelluti entered into an agreement with defendant Powerhouse Gym (Powerhouse) for membership at its Brick, New Jersey facility. As part of the process of joining the facility, Stelluti signed and dated a waiver and release form. The form stated, in part, that the member assumed all risks of negligence on the part of Powerhouse, including injury from malfunctioning equipment. [*2] The same day that Stelluti signed the form and became a member, she participated in a spinning class. As the class began, the participants started out pedaling the spin bikes in a seated position. Shortly afterward, the instructor told the participants to change from a seated to a standing position on their bikes. When Stelluti rose to a standing position, the adjustable handlebars dislodged from the bike. She fell forward while her feet remained strapped to the pedals. Stelluti’s injuries included pain in her neck and shoulders, soreness in her thighs and back, a cracked tooth, and bruises. She later was diagnosed with back and neck strain and alleges that she suffers from chronic pain associated with myofascial pain syndrome.
Stelluti filed a complaint against Powerhouse and others. With regard to Powerhouse, Stelluti alleged negligence in failing to maintain and set up the bike, failing to properly instruct her on its use, failing to provide warnings and safe equipment, and other claims. Powerhouse filed a motion for summary judgment based on the waiver of liability agreement that Stelluti signed. The trial court granted the motion, finding that 1) the waiver agreement was enforceable [*3] because Powerhouse was not subject to a requirement to perform under a specific duty imposed by law; 2) the waiver was not unconscionable and Stelluti read and understood the agreement’s provisions; and 3) the exculpatory language in the waiver agreement covered claims sounding in both negligence and gross negligence.
The Appellate Division affirmed. 408 N.J. Super. 435, 975 A.2d 494 (App. Div. 2009). The panel held that the agreement was not unconscionable and therefore was valid. However, it determined that the agreement could only immunize Powerhouse from ordinary negligence and not from reckless, willful or wanton, or palpably unreasonable behavior. Because the facts in this matter did not support a claim for more than ordinary negligence, the panel held that summary judgment in favor of Powerhouse was proper. The Supreme Court granted Stelluti’s petition for certification. 200 N.J. 502 983 A.2d 1110 (2009).
HELD: The Court affirms the judgment of the Appellate Division, which upheld the dismissal of plaintiff Gina Stelluti’s negligence claims against defendant Powerhouse Gym for injuries she sustained on exercise equipment. It is not contrary to the public interest, or to a legal duty owed, to enforce the [*4] pre-injury waiver of liability agreement that Stelluti entered into with Powerhouse Gym, which limited the gym’s liability for injuries arising from a patron’s participation in instructed activity and voluntary use of the gym’s equipment.
1. A contract of adhesion is defined as one presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the adhering party to negotiate. Although a contract of adhesion may require one party to choose either to accept or reject it as is, the agreement may be enforced. Here, Powerhouse’s agreement was a contract of adhesion, but Stelluti was not in a position of unequal bargaining power such that the contract must be voided. Stelluti could have taken her business to another fitness club, could have found another means of exercising aside from joining a gym, or could have sought advice before signing up and using the facility’s equipment. The agreement was not void based on any notion of procedural unconscionability. (Pp. 15-18)
2. In considering whether the agreement was enforceable even though it was exculpatory, the Court agrees with the trial court’s determination that Stelluti understood the terms of [*5] the agreement. The Court then considers whether Powerhouse had a legal duty to perform that governs here. The Court previously has recognized that certain activities require the participant to assume some risk because injuries are common. For such activities, the standard of care to be met must exceed mere negligence because the risk of injury cannot be eliminated through the exercise of reasonable care. Furthermore, although the Legislature has enacted statutes that allocate the risks and responsibilities of the parties who control and those who participate in certain types of recreational activities, it has not addressed private fitness centers. However, the common sense behind a risk-sharing approach does not make it unreasonable to employ exculpatory agreements, within limits, in private contractual arrangements between fitness centers and their patrons. (Pp. 18-29)
3. To determine whether the public interest would be adversely affected by enforcement of the exculpatory agreement in this matter, the Court engages in a balancing of public-policy interests. The Court explains that, by its nature, exercising entails vigorous physical exertion. Injuries are common and may result from [*6] faulty equipment, improper use of equipment, inadequate instruction, inexperience, poor physical condition of the user, or excessive exertion. Although there is a public interest in holding a health club to its duty to maintain its premises in a condition safe from defects that it is charged with knowing or discovering, it need not ensure the safety of its patrons who voluntarily assume some risk by engaging in strenuous physical activities that have a potential to result in injuries. Any requirement to guarantee a patron’s safety from all risk in using equipment that is passed from patron to patron could chill the establishment of health clubs, which perform a salutary purpose by offering activities and equipment so that patrons can enjoy challenging physical exercise. However, it would be contrary to the public interest to condone willful blindness to problems that arise with the equipment provided for patrons’ use. Therefore, the Court holds private fitness centers to a duty not to engage in reckless or gross negligence. If Powerhouse’s management or employees had been aware of a piece of defective exercise equipment and failed to remedy the condition or warn adequately of the dangerous [*7] condition, or if Powerhouse had dangerously or improperly maintained equipment, it could not exculpate itself from such reckless or gross negligence. The record in this matter, however, does not support such a showing. (Pp. 29-34)
4. The Court holds that it is not contrary to the public interest, or to a legal duty owed, to enforce Powerhouse’s agreement limiting its liability for injuries sustained as a matter of negligence that resulted from a patron’s voluntary use of equipment and participation in instructed activity. The exculpatory agreement between Powerhouse and Stelluti is enforceable as to the injury she sustained when riding the spin bike. (Pp. 34)
The judgment of the Appellate Division that sustained the summary judgment award to Powerhouse is AFFIRMED.
JUSTICE ALBIN, DISSENTING, joined by JUSTICE LONG, believes that the exculpatory clause in this matter should be void as against public policy because it unfairly allocates the risk from the commercial operator, who is in the best position to remove and prevent dangers on the premises, to an unwary patron. He maintains that the majority’s opinion will encourage a lack of due care on the part of commercial entities.
COUNSEL: Edward A. Genz [*8] argued the cause for appellant (Montenegro, Thompson, Montenegro & Genz, attorneys).
Russell S. Massey argued the cause for respondent (Billet & Associates, attorneys; Mr. Massey and Robert Douglas Billet, on the briefs).
E. Drew Britcher submitted a brief on behalf of amicus curiae New Jersey Association For Justice (Britcher, Leone & Roth, attorneys; Mr. Britcher and Jessica E. Choper, on the brief).
JUDGES: JUSTICE LaVECCHIA delivered the opinion of the Court. CHIEF JUSTICE RABNER and JUSTICES WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN, joined by JUSTICE LONG, filed a separate, dissenting opinion.
OPINION BY: LaVECCHIA
JUSTICE LaVECCHIA delivered the opinion of the Court.
On January 13, 2004, while participating in a spinning 1 class at a private fitness center, the handlebars on plaintiff Gina Stelluti’s spin bike dislodged from the bike, causing her to fall and suffer injuries. In this appeal we must determine whether plaintiff should be bound to a pre-injury waiver of liability that she executed in connection with her membership application and agreement. We conclude, for the reasons expressed herein, that the exculpatory agreement between the fitness center [*9] and Stelluti is enforceable as to the injury Stelluti sustained when riding the spin bike. In doing so [HN1] we reject the argument that limited liability waivers are per se invalid in private fitness center venues. Our decision affirms the Appellate Division judgment that upheld the dismissal of plaintiff’s claim.
1 “Spinning” is a popular exercise class offered by fitness centers. It involves riding a stationary bike led by a fitness instructor who gives commands to change positions, adjust the bike’s tension, and increase or decrease cadence.
Stelluti entered into an agreement with defendant Powerhouse Gym 2 for membership at its Brick, New Jersey facility. To do so, she filled out three forms: a “Membership Agreement” form; a “Member Information” form; and a “Health/Safety Consent” form. The “Member Agreement” and “Member Information” forms requested basic personal information. The “Health/Safety Consent” form asked a series of questions about the patron’s physical condition, and further, required a patron answering “yes” to any question to submit a doctor’s note before commencing physical activity. The form also encouraged patrons to wear “proper footwear and attire,” to ask for assistance [*10] with equipment or classes, and to notify the manager if medical assistance was needed.
2 Powerhouse Gym is a trade name of Casapenn Enterprises, LLC.
Stelluti completed the forms, signed and dated them, and answered “no” in response to all questions on the “Health/Safety Consent” form. That same day, she also signed and dated a “Powerhouse Fitness (The Club) Waiver & Release Form” (waiver). 3 The waiver, a standard pre-printed form drafted exclusively for Powerhouse, provided as follows:
POWERHOUSE FITNESS (The Club)
WAIVER & RELEASE FORM
Because physical exercise can be strenuous and subject to risk of serious injury, the club urges you to obtain a physical examination from a doctor before using any exercise equipment or participating in any exercise activity. You (each member, guest, and all participating family members) agree that if you engage in any physical exercise or activity, or use any club amenity on the premises or off premises including any sponsored club event, you do so entirely at your own risk. Any recommendation for changes in diet including the use of food supplements, weight reduction and or body building enhancement products are entirely your responsibility and you should [*11] consult a physician prior to undergoing any dietary or food supplement changes. You agree that you are voluntarily participating in these activities and use of these facilities and premises and assume all risks of injury, illness, or death. We are also not responsible for any loss of your personal property.
This waiver and release of liability includes, without limitation, all injuries which may occur as a result of, (a) your use of all amenities and equipment in the facility and your participation in any activity, class, program, personal training or instruction, (b) the sudden and unforeseen malfunctioning of any equipment, (c) our instruction, training, supervision, or dietary recommendations, and (d) your slipping and/or falling while in the club, or on the club premises, including adjacent sidewalks and parking areas.
You acknowledge that you have carefully read this “waiver and release” and fully understand that it is a release of liability. You expressly agree to release and discharge the health club, and all affiliates, employees, agents, representatives, successors, or assigns, from any and all claims or causes of action and you agree to voluntarily give up or waive any right [*12] that you may otherwise have to bring a legal action against the club for personal injury or property damage.
To the extent that statute or case law does not prohibit releases for negligence, this release is also for negligence on the part of the Club, its agents, and employees.
If any portion of this release from liability shall be deemed by a Court of competent jurisdiction to be invalid, then the remainder of this release from liability shall remain in full force and effect and the offending provision or provisions severed here from.
By signing this release, I acknowledge that I understand its content and that this release cannot be modified orally.
Signed: /s/ Gina Stelluti Names of family members (if applicable):
Any patron who declined to sign the waiver was not permitted to use the Powerhouse Gym.
3 Plaintiff has claimed in her certification and deposition that the Powerhouse employee did not tell her that she was signing a release form. She also claimed she was not provided with a personal copy of the signed release.
Stelluti’s injury occurred at the gym the day that she joined. After signing the requisite paperwork to become a member, she went to participate [*13] in a spinning class. She advised the instructor of her inexperience and the instructor helped her to adjust the bike seat for height and showed her how to strap her feet to the pedals. The instructor then told Stelluti to watch and imitate her during the class.
As the class began, the participants started out pedaling in a seated position. Shortly afterward, the instructor told the participants to change from a seated to a standing position on their bikes. When Stelluti rose to a standing position, the handlebars dislodged from the bike. 4 As a result, Stelluti fell forward while her feet remained strapped to the pedals. With assistance, she succeeded in detaching herself from the bike. When she tried to resume participation after resting for fifteen minutes, she soon had to quit, finding herself in too much pain to continue.
4 As stated by Stelluti, she did not pull up on the handlebars as she stood. Rather, she described the handlebars as feeling loose as she held onto them when rising. She also said that she did not detect that the handlebars were loose before she stood up in the pedals.
Stelluti’s injuries included pain in her neck and shoulders, soreness in her thighs and back, a [*14] cracked tooth, and bruises on her legs. After a hospital visit, she was diagnosed with back and neck strain, prescribed medication, and discharged with a recommendation for a follow-up appointment with a doctor. She claims also to experience persistent pain as a result of the incident. Her medical expert has stated that three years after her accident Stelluti suffers from chronic pain associated with myofascial pain syndrome. 5
5 Myofascial pain syndrome is described as on-going or long-lasting pain stemming from the connective tissue (fascia) of muscles. WebMD, Myofascial Pain Syndrome, http://www.webmd.com/a-to-z-guides/myofascial-pain-syndrome-topic-overview.
Stelluti filed a timely complaint for damages in the Law Division against Powerhouse; Star Trac, the manufacturer of the spin bikes used at Powerhouse; and ABI Property Partnership, the premises owner. The complaint alleged the following negligence claims against Powerhouse and ABI: 1) “fail[ing] to properly maintain and set up the stationary bike”; 2) “fail[ing] to properly instruct the plaintiff as to how to use the bike [or] exercise proper care”; 3) “caus[ing] a dangerous and hazardous condition to exist”; 4) “allow[ing] [*15] a nuisance to exist”; 5) “fail[ing] to provide proper safeguards or warnings on the bike”; 6) “fail[ing] to provide proper and safe equipment”; 7) “maintain[ing] the bike in an unsafe, hazardous and/or defective manner”; and 8) acting in “a negligent, careless and reckless manner so as to cause an unsafe hazardous and/or defective condition to exist . . . [and failing] to provide proper safeguards and/or warnings.” Plaintiff also asserted a products liability claim against Star Trac Fitness. 6
6 Defendants Star Trac and ABI are no longer parties to the case. ABI was not represented at oral argument on Powerhouse’s motion for summary judgment, nor was ABI a party to the case before the Appellate Division. See Stelluti v. Casapenn Enters., 408 N.J. Super. 435, 443 n.3, 975 A.2d 494 (App. Div. 2009). Further, we were informed at oral argument that plaintiff’s claims against Star Trac have been resolved.
This appeal comes to us from a summary judgment record. That record reveals the following contrasting views about the spin bike that was involved in Stelluti’s fall and resultant injuries.
Powerhouse submitted an expert liability report that described the mechanics of a Star Trac Fitness Johnny G. Spinner [*16] Pro bike. According to that expert’s examination of an exemplar bike, 7 the handlebars have a chrome stem post and the entire, unitary piece — handlebars and post — may be detached and separated from the bike frame. The chrome post, which is approximately seven inches tall, contains seven elevation positioning holes, each approximately three-quarters of an inch apart. At the lower end of the post, a horizontal line and arrow, pointing down to the word “Maximum,” indicates the furthest extension point of the post. However, Powerhouse’s expert opined that an inexperienced user “would not notice th[at] mark.” The chrome post fits into a vertical support member that extends from the bike’s frame base. A locking pin — a threaded rod fitted with a spring-loaded pin and handle –secures the post to the frame. The pin is inserted into one of the elevation holes and is locked into place by tightening its handle. The expert noted that there is “no noticeable difference” between the appearance of the post when it is locked in place or when the post merely is resting on top of an elevation locking pin. Powerhouse’s expert concluded that plaintiff’s accident “occurred because the handlebars [*17] present on the stationary exercise bicycle that she was using unexpectedly and without warning separated from the bicycle causing her to fall.”
7 The actual bike on which Stelluti had sustained her injury could not be identified.
Stelluti’s liability expert, a college professor with an advanced degree in physical education and certifications in specialized fitness activities including spinning instruction, issued a report that opined that Powerhouse was “negligent in providing a safe environment” and, specifically that the spinning instructor “failed to provide effective specific supervision, instruction and assistance” to Stelluti. He also stated that Stelluti sustained her injuries as a result of the handlebar stem becoming dislodged from the locked position and explained how the handlebars may be raised or lowered, and locked into place, consistent with defendant’s liability expert. Plaintiff’s expert also agreed with those statements by defendant’s representatives, the spinning instructor, and plaintiff, that the only way the handlebars could have become dislodged would be if the lock pin had not been engaged and, instead, the stem had been resting on the lock pin. He explained that, [*18] when in that position, the stem would recede only one inch into the vertical support member, thus creating an unstable position for the handlebars. Therefore, when plaintiff raised herself from a seated position, and leaned forward and downward on the handlebars, the handlebars and post would separate from the frame.
Stelluti’s expert report also referenced a protocol 8 that, he said, every certified spinning instructor should follow, including “proper handlebar height adjustment” before each class to “help ensure a comfortable position on the bike and avoid undue strain on the back.” The protocol noted that students should be reminded “to check that the ‘pop pin’ is fully engaged in to make sure that the handlebars are secure.” The expert also referred to the Star Trac Group Cycles Owners Guide, which emphasized that “[p]roper instruction from a certified Spinning instructor should be used to properly fit the group cycle for use” and that “[u]sers should be aware of the features, functions and proper operation of the cycle before using the cycle for the first time.” In conclusion, Stelluti’s expert report stated that “[t]he proximal cause and mechanism of injury are a direct result [*19] of a lack of appropriate instructions in setting up the plaintiff’s bike by the instructor.”
8 The expert referred to the Madd Dog Athletics Johnny G. Spinning Instructor Manual.
As noted, defendant filed a motion for summary judgment. Before ruling, the trial court required additional briefing on whether common law premises liability imposed an affirmative duty that served to invalidate the use of an exculpatory agreement in this setting. Following submission of that additional briefing and argument, the court entered an order granting summary judgment in favor of Powerhouse, finding Powerhouse’s waiver effective to exculpate it from plaintiff’s negligence claims. The judge made several findings: 1) that the exculpatory agreement was enforceable because Powerhouse was not subject to a requirement to perform under a specific legal duty imposed by statute or by regulation; 2) that the waiver signed by Stelluti was not unconscionable and, further, that plaintiff had read and understood the agreement provisions when she signed them; and 3) that the exculpatory language would be applied to cover claims sounding in both negligence and gross negligence.
Plaintiff appealed, and in a comprehensive [*20] decision penned by Judge Sabatino, the Appellate Division affirmed the order granting summary judgment to defendant. Stelluti v. Casapenn Enters., 408 N.J. Super. 435, 440, 975 A.2d 494 (App. Div. 2009). Importantly, the appellate decision pared back the permissible reach of defendant’s exculpatory agreement with its patrons, holding “that the exculpatory agreement only insulated [defendant] from ordinary negligence respecting the use of the exercise equipment at its facility,” and that the agreement could not insulate defendant from “extreme conduct such as reckless, willful or wanton, or palpably unreasonable acts or omissions diminishing the safe condition of its equipment.” Id. at 439, 975 A.2d 494. Acknowledging that a fitness club owes a general duty to invitees who come onto its premises, the panel explained that the question was whether, and to what extent, the agreement entered into by Stelluti eliminated the duty that Powerhouse owed to her. Id. at 446, 448, 975 A.2d 494.
Recognizing that the standardized pre-printed document required for membership to the club constituted a contract of adhesion, Id. at 448-50, 975 A.2d 494, the panel first applied the factors identified in Rudbart v. North Jersey District Water Supply Commission, 127 N.J. 344, 356, 605 A.2d 681 (1992), [*21] and determined that the agreement was not unconscionable and therefore was valid. Stelluti, supra, 408 N.J. Super. at 449-50, 975 A.2d 494. The panel then addressed the agreement’s enforceability in light of its exculpatory nature. Id. at 453, 975 A.2d 494. In performing that inquiry, the panel considered the test that had been identified by another appellate panel in Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 248, 845 A.2d 720 (App. Div. 2004), which stated that an exculpatory agreement
is enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.
[Id. at 454, 975 A.2d 494 (citing Gershon, supra, 368 N.J. Super. at 248, 845 A.2d 720).]
Addressing considerations one, two, and four under Gershon (because the third plainly was inapplicable), the panel explained that Powerhouse has a general legal duty to its business invitee patrons and, therefore, “[a]n unbounded waiver of liability [would] unjustifiably eviscerate  those protections for business invitees.” Id. at 454-55, 975 A.2d 494. However, the panel also cited [*22] other countervailing public policy considerations, including the importance of encouraging physical fitness and the necessity for fitness facilities to have access to the protections of exculpatory agreements due to the potential for substantial financial exposure from injuries associated with exercise equipment and activities in a gym. Id. at 455-57, 975 A.2d 494. The panel balanced those public interest and policy considerations against the state interest in the established common law on premises liability, and found that although the public policy interests could not justify a complete waiver of liability, the exculpatory agreement was valid but required some paring. Id. at 457-59, 975 A.2d 494 (stating that “[i]f Powerhouse, or any other fitness club, so sharply deviated from the ordinary standards of reasonable care, public policy dictates that the exculpatory agreement should not protect it from liability”). The panel held that Powerhouse’s exculpatory agreement could only immunize it from ordinary negligence and not “reckless, willful or wanton, or palpably unreasonable [behavior].” Id. at 439, 975 A.2d 494.
Focusing on the liability question raised by the facts in this matter, and expressly not addressing the validity [*23] of the agreement either as to hazards posed by other equipment on the premises not used routinely for exercising or as to other dangerous conditions that could arise on any premises, the panel addressed whether plaintiff’s proofs raised her above the exculpatory bar against liability for ordinary negligence associated with use of the fitness equipment. Id. at 459-60, 975 A.2d 494. The appellate panel concluded, like the trial court, that it could not determine exactly how the handlebars became detached, but that, even if the instructor had failed to check the handlebars, or a cleaning-crew member mistakenly had removed the pin, and the equipment was not examined before Stelluti or any other patron was allowed to use the equipment, those acts did not rise to a reckless or extreme deviation from a duty of care. Id. at 460, 975 A.2d 494. 9 In sum, even though the agreement attempted to protect Powerhouse from acts or omissions concerning the safety of its equipment that constituted more than ordinary negligence, because there was no genuine issue of fact that rose above a cause of action in ordinary negligence, the panel held that summary judgment in favor of Powerhouse was proper and affirmed the judgment. Id. at 460-61, 975 A.2d 494.
9 The [*24] panel also found that the record presented no evidence that Powerhouse had neglected over time to maintain its equipment. Stelluti, supra, 408 N.J. Super. at 460-61, 975 A.2d 494.
We granted plaintiff’s petition for certification, 200 N.J. 502, 983 A.2d 1110 (2009). Plaintiff argues that the language of the agreement was unclear and ambiguous, and thus inadequate; that it is an unconscionable contract of adhesion not entitled to be enforced; and that it is contrary to public policy to allow an exculpatory agreement to be applied in the instant context. In respect of her last point, plaintiff maintains that the spinning instructor’s failure to check the handlebars before she allowed Stelluti to mount the bike and begin the spin class amounted to gross negligence and, therefore, summary judgment should not have issued.
Powerhouse refutes each of plaintiff’s arguments, and generally agrees with the reasoning of the Appellate Division decision, parting company only as to the panel’s holding that declared the agreement inapplicable to gross negligence claims.
The issue of general public importance in this appeal, see R. 2:12-4, concerns the enforceability of an exculpatory agreement executed in a commercial setting [*25] involving membership in an exercise facility, where the exculpation brought about by the agreement does not implicate the violation of any statutory or regulatory legal duty owed by the facility. It is not the circumstances of the forming of this take-it-or-leave-it waiver agreement that drew our attention, although that is among Stelluti’s points of error in seeking certification. We reject that claim of error in her petition and, substantially for the reasons expressed in Judge Sabatino’s opinion, we affirm the Appellate Division’s assessment of this agreement as a contract of adhesion but one that does not suffer from procedural unconscionability concerns. We add briefly the following.
[HN2] A contract of adhesion is defined as one “presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate.” Rudbart, supra, 127 N.J. at 353, 605 A.2d 681 (citations omitted). Although a contract of adhesion may require one party to choose either to accept or reject the contract as is, the agreement nevertheless may be enforced. See id. at 353, 356-61, 605 A.2d 681 (noting such considerations as “the subject matter of the contract, the parties’ relative [*26] bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract”). Plainly, courts can, and do, refuse to enforce an unconscionable contract of adhesion. See Muhammad v. County Bank of Rehoboth Beach, Del., 189 N.J. 1, 15, 912 A.2d 88 (2006). When making the determination that a contract of adhesion is unconscionable and unenforceable, we consider, using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest. Delta Funding Corp. v. Harris, 189 N.J. 28, 39-40, 912 A.2d 104 (2006). 10
10 As Delta Funding, supra, exemplifies, a finding of a high level of procedural unconscionability alone may not render an entire agreement unenforceable. 189 N.J. at 40-41, 912 A.2d 104 (holding contract one of adhesion but not unenforceable, despite finding one party to possess greater sophistication and bargaining power).
Here, Powerhouse’s agreement was a standard pre-printed form presented to Stelluti and other prospective members on a typical “take-it-or-leave-it basis.” No doubt, this agreement was one of adhesion. As for the relative bargaining positions of the parties, [*27] see Rudbart, supra, 127 N.J. at 356, 605 A.2d 681, we assume that Stelluti was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically. Giving her the benefit of all inferences from the record, including that Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability, we nevertheless do not regard her in a classic “position of unequal bargaining power” such that the contract must be voided. As the Appellate Division decision noted, Stelluti could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. No time limitation was imposed on her ability to review and consider whether to sign the agreement. In sum, although the terms of the agreement were presented “as is” to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.
To the extent that any contract of adhesion also would require review to [*28] determine whether its enforcement implicates a matter of public interest, see ibid., that test overlaps, and is subsumed by the more precise analysis employed when assessing whether to enforce an exculpatory agreement. We therefore turn to consider the specific type of contract whose enforceability is the reason certification was granted in this appeal.
[HN3] As a general and long-standing matter, contracting parties are afforded the liberty to bind themselves as they see fit. See Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S. Ct. 476, 477, 75 L. Ed. 1112, 1116 (1931) (“The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”). See generally 11 Williston on Contracts § 30:9, at 96 (Lord ed., 4d ed. 1999). Out of respect for that very basic freedom, courts are hesitant to interfere with purely private agreements. See, e.g., Twin City Pipe Line Co., supra, 283 U.S. at 356-57, 51 S. Ct. at 477, 75 L. Ed. at 1116 (evaluating unenforceability with “caution”); Allen v. Commercial Cas. Ins. Co., 131 N.J.L. 475, 478, 37 A.2d 37 (E. & A. 1944) (finding [*29] freedom to contract “sacred,” and thus not to be interfered with “lightly” (citation omitted)); Chem. Bank v. Bailey, 296 N.J. Super. 515, 526-27, 687 A.2d 316 (App. Div.) (noting ability of parties to apportion risk of loss through contractual limitation of liabilities), certif. denied, 150 N.J. 28, 695 A.2d 671 (1997).
However, certain categories of substantive contracts, including those that contain exculpatory clauses, have historically been disfavored in law and thus have been subjected to close judicial scrutiny. See 11 Williston on Contracts, supra, § 30:9, at 103-04 (citing types of contractual provisions that require strict construction, including “forfeitures, penalties, provisions limiting a party’s legal rights, and provisions that depend for their validity or enforceability on the subjective judgment of one of the parties”). Our Court previously expressed a similar disfavor for such agreements and applied careful scrutiny to the interests involved. See Hojnowski v. Vans Skate Park, 187 N.J. 323, 333, 901 A.2d 381 (2006) (holding unenforceable parent’s execution of exculpatory agreement on behalf of child). That said, despite the warnings about disfavor and calls for careful scrutiny, we do enforce contracts that [*30] contain exculpatory clauses unless such provision proves adverse to the public interest. See Mayfair Fabrics v. Henley, 48 N.J. 483, 487, 226 A.2d 602 (1967).
In that consideration, [HN4] it has been held contrary to the public interest to sanction the contracting-away of a statutorily imposed duty. McCarthy v. NASCAR, Inc., 48 N.J. 539, 542, 226 A.2d 713 (1967). An agreement containing a pre-injury release from liability for intentional or reckless conduct also is plainly inconsistent with public policy. See Hojnowski, supra, 187 N.J. at 333, 901 A.2d 381. Beyond those clear parameters to inviolate public policy principles, the weighing process becomes opaque. The Appellate Division identified four considerations, pertinent to the enforcement of an exculpatory agreement, when rendering its decision in Gershon. The Gershon court said that an exculpatory agreement
will be enforced if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.
[Gershon, supra, 368 N.J. Super. at 248, 845 A.2d 720 (citations omitted).]
The Gershon test, used [*31] by the panel below, captures the essential features to be explored when considering whether enforcement of an exculpatory agreement would be contrary to public policy. Other courts in sister jurisdictions have developed similar tests. One, which originated with the Supreme Court of California in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963), uses six inquiries 11 and it also has been identified as helpful. See Hojnowski, supra, 187 N.J. at 348, 901 A.2d 381 (LaVecchia, J., dissenting). Although slightly more nuanced, Tunkl’s considerations are not inconsistent with Gershon’s, and can provide additional guidance when applying the Gershon test that has been employed by our appellate courts and that we find acceptable also in the resolution of the instant exculpatory agreement. We thus turn to consider the specifics of the agreement.
11 Tunkl references the following inquiries as pertinent when determining whether to enforce an exculpatory agreement: 1) whether the agreement involves a business generally suitable for public regulation; 2) whether the exculpated party provides a service important and necessary to the public; 3) whether the exculpated party offers services [*32] to any person of the public seeking those services; 4) whether the exculpated party possesses a stronger bargaining power relative to the member of the public seeking services; 5) whether the exculpated party presents the member of the public with a contract of adhesion; and 6) whether the member of the public is under the control of the exculpated party and thus is subject to the careless risks of the more powerful party. Tunkl, supra, 383 P.2d at 445-46.
[HN5] As a threshold matter, to be enforceable an exculpatory agreement must “reflect the unequivocal expression of the party giving up his or her legal rights that this decision was made voluntarily, intelligently and with the full knowledge of its legal consequences.” Gershon, supra, 368 N.J. Super. at 247, 845 A.2d 720 (citing Knorr v. Smeal, 178 N.J. 169, 177, 836 A.2d 794 (2003); Country Chevrolet, Inc. v. Twp. of N. Brunswick Planning Bd., 190 N.J. Super. 376, 380, 463 A.2d 960 (App. Div. 1983)). When a party enters into a signed, written contract, that party is presumed to understand and assent to its terms, unless fraudulent conduct is suspected. Rudbart, supra, 127 N.J. at 353, 605 A.2d 681.
The agreement in question explicitly stated that it covered “the sudden and unforeseen malfunctioning [*33] of any equipment, . . . use of all amenities and equipment in the facility and . . . participation in any activity, class, program, personal training or instruction.” In addition, the agreement explicitly covered negligence: “this release is also for negligence on the part of the Club, its agents, and employees.” Further, terms that limited Powerhouse’s liability — “entirely at your own risk,” “assume all risks,” and “release of liability,” — were set forth prominently in the written document that Stelluti signed and from which she now seeks to be excused. Although Stelluti argues that she did not know what she was signing, she does not claim that she signed the waiver form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within reason to presume that she understood the terms of the agreement, see ibid., and the finding to that effect is unassailable.
Furthermore, as we have already addressed and rejected Stelluti’s argument in respect of unequal bargaining power, we need address that aspect of Gershon’s inquiries no further. And, because Powerhouse is not a public utility or common carrier, that inquiry is inapplicable to our analysis. Besides [*34] not being such an entity, Powerhouse also was not providing a necessary service akin to that provided by a public utility or common carrier. Thus refined, our analysis in this matter turns on the first two inquiries identified in Gershon, supra: whether enforcement will implicate a matter of public interest and the related question of whether Powerhouse is under some legal duty to perform. 368 N.J. Super. at 248, 845 A.2d 720.
[HN6] When considering whether enforcement of the instant exculpatory agreement would adversely affect the public interest, the inquiry naturally blends into an examination of whether the exculpated party is under a legal duty to perform. Exculpatory agreements that attempt to release liability for statutorily imposed duties have been held invalid. See, e.g., McCarthy, supra, 48 N.J. at 543, 226 A.2d 713 (holding exculpatory clause limiting liability arising out of car racing unenforceable due to statute regulating field and its expressed public policy in protecting participants and spectators). When the subject of an exculpatory agreement is not governed by statute, we also have considered common law duties in weighing relevant public policy considerations. See Hojnowski, supra, 187 N.J. at 335, 901 A.2d 381. [*35] To a certain extent, we cannot view Gershon’s public-interest inquiry separate from the question of whether there is a legal duty owed that is inviolate and non-waivable. In performing the weighing of public policy interests, then, we must take into account, in this private setting, both the extant common law duties and the right to freely agree to a waiver of a right to sue, which is part and parcel to the freedom to contract to which we earlier adverted. The mere existence of a common law duty does not mean that there is no room for an exculpatory agreement. In other words, our analysis begins from the starting point that public policy does not demand a per se ban against enforcement of an exculpatory agreement based on the mere existence of a duty recognized in the common law in respect of premises liability.
[HN7] It is well recognized that the common law imposes a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm. See Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, 818 A.2d 314 (2003); Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517, 688 A.2d 1018 (1997). That standard of care [*36] encompasses a duty “to guard against any dangerous conditions on [the] property that the owner either knows about or should have discovered[,] . . . [and] to conduct a reasonable inspection to discover latent dangerous conditions.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434, 625 A.2d 1110 (1993) (citations omitted). That said, the law recognizes that for certain activities conducted by operation of some types of business, particularly those that pose inherent risks to the participant, the business entity will not be held liable for injuries sustained “so long as [the business] has acted in accordance with ‘the ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.'” Hojnowski, supra, 187 N.J. at 340-41, 901 A.2d 381 (citation omitted). When it comes to physical activities in the nature of sports — physical exertion associated with physical training, exercise, and the like — injuries are not an unexpected, unforeseeable result of such strenuous activity.
[HN8] Our Court recognized that reality associated with sports and sport activity when we held that some activities, due to their very nature, [*37] require the participant to assume some risk because injury is a common and inherent aspect of the activity. Crawn v. Campo, 136 N.J. 494, 500, 643 A.2d 600 (1994). In Crawn, we considered the duty of care owed to individuals who participate in informal recreational sports, softball in that particular instance. Id. at 497, 643 A.2d 600. We determined that the standard of care must exceed mere negligence because of the inherent risk of injury that cannot be eliminated through the exercise of reasonable care. Id. at 500, 643 A.2d 600. To determine the proper standard of care, we focused on the relationship between the participants and the nature of risk involved, specifying unique aspects of recreational activities such as the inherent and expected physical contact and high level of emotional intensity, both deemed appropriate when participating in those sports. Id. at 504, 643 A.d 600. We stressed the centrality of public policy and fairness in reaching our conclusion about the appropriate standard of care. Id. at 503, 643 A.2d 600. Two important public policies were identified: 1) “promotion of vigorous participation in athletic activities” as evidenced by pervasive interest and participation in recreational sports, and 2) the “avoid[ance of] a flood [*38] of litigation.” Id. at 501, 643 A.2d 600. That said, those interests do not completely immunize participants. Id. at 503-04, 643 A.2d 600. [HN9] Participants retain a duty to participate in a reasonable manner, with regard for other players, and also in a way that fits with the common expectations of acceptable conduct for the activity. Id. at 501, 507, 643 A.2d 600. Thus, the Crawn decision held that “liability arising out of mutual, informal, recreational sports activity should not be based on a standard of ordinary negligence but on the heightened standard of recklessness or intent to harm,” Id. at 503, 643 A.2d 600, a standard that “recognizes a commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing fields.” Id. at 508, 643 A.2d 600. Application of that standard later was extended to sports that do not involve physical contact. See Schick v. Ferolito, 167 N.J. 7, 18, 767 A.2d 962 (2001) (upholding recklessness standard to the game of golf, finding “no persuasive reasons to apply an artificial distinction between ‘contact’ and ‘noncontact’ sports”).
[HN10] Assumption of risk associated with physical-exertion-involving discretionary activities is sensible and has been applied in many [*39] other settings, including by the Legislature with reference to certain types of recreational activities. Recognizing that some activities involve a risk of injury and thus require risk sharing between participants and operators, the Legislature has enacted statutes that delineate the allocation of risks and responsibilities of the parties who control and those who participate in some of those activities. See N.J.S.A. 5:13-1 to -11 (Ski Act); N.J.S.A. 5:14-1 to -7 (Roller Skating Rink Safety and Fair Liability Act); N.J.S.A. 5:15-1 to -12 (Equine Act). Although no such action has been taken by the Legislature in respect of private fitness centers, that does not place the common sense of a risk-sharing approach beyond the reach of commercial entities involved in the business of providing fitness equipment for patrons’ use. The sense behind that approach does not make it unreasonable to employ exculpatory agreements, within limits, in private contractual arrangements between fitness centers and their patrons.
An exculpatory agreement that covered a unique form of recreational activity was considered previously in Hojnowski, supra, where we held unenforceable an exculpatory agreement executed [*40] by a parent on behalf of a minor seeking to use a skateboarding facility. 187 N.J. at 338, 901 A.2d 381. The relevant public policy implicated by that case centered on the state’s parens patriae power over minors and the need to encourage commercial recreational facilities that attract children to take reasonable steps to ensure children’s safety. Id. at 333-38, 901 A.2d 381. Due to the perceived public interest in that unique context, we concluded that the exculpatory agreement would not bar the minor’s tort claim. Id. at 338, 901 A.2d 381. Importantly, the Court’s holding treated skateboarding as a non-essential activity that did not implicate the public interest. Id. at 347-48, 901 A.2d 381 (LaVecchia, J., dissenting). Further, we did not decide whether the exculpatory agreement would be valid if executed and enforced against an adult. Id. at 347, 901 A.2d 381. The decision in Hojnowski does not stand for the proposition that there exists a per se ban, based on the common law duty owed to business invitees concerning premises liability, against the enforcement of an exculpatory agreement in personal recreational-type activities including, as here, private fitness centers. Thus, in considering Gershon’s legal-duty question and whether the public interest [*41] would be adversely affected by enforcement of the instant exculpatory agreement, we find it necessary to engage in a balancing of all relevant public-policy interests. 12
12 The dissent conflates those two considerations by arguing, in substance, that it is contrary to the public interest even to allow for an exculpation provision that pertains to premises liability under the common law. Indeed, the dissent goes even further, by converting Gershon’s first inquiry into a requirement that the exculpatory agreement serve the public interest. See post at (slip op. at 16). Plainly, that recharacterization does not fairly reflect our jurisprudence.
To properly balance the public-policy interests implicated in the instant matter one must consider the nature of the activity and the inherent risks involved. 13 Engaging in physical activity, particularly in private gyms and health clubs is commonplace in today’s society. The United States Bureau of Labor estimates that over the next decade jobs for physical fitness workers will increase faster than other occupations due to the increasing recognition of health benefits associated with physical activity and, consequently, increase the amount [*42] of time and money spent on fitness. U.S. Dep’t of Labor, Bureau of Labor Statistics: Occupational Outlook Handbook 3 (2010-11), http://www.bls.gov/oco/pdf/ocos296.pdf.
13 Our focus here substantially contemplates one of Tunkl’s inquiries, specifically whether the member of the public is under the control of the exculpated party and thus subject to the careless risks by the more powerful party. See Tunkl, supra, 383 P.2d at 445-46. That question takes into account the patron’s opportunity for self-protection, which removes the possibility that the injury could only be prevented by the operator. See Robert Heidt, The Avid Sportsman and the Scope for Self-Protection: When Exculpatory Clauses Should be Enforced, 38 U. Rich. L. Rev. 381, 460-73 (2004).
By its nature, exercising entails vigorous physical exertion. 14 Injuries from exercise are common; indeed minor injuries can be expected — for example, sore muscles following completion of a tough exercise or workout may be indicative of building or toning muscles. Those injuries and others may result from faulty equipment, improper use of equipment, inadequate instruction, inexperience or poor physical condition of the user, or excessive [*43] exertion. See Thomas M. Fleming, Annotation, Liability of Proprietor of Private Gymnasium, Reducing Salon, or Similar Health Club for Injury to Patron, 79 A.L.R.4th 127, § 2[a] (1990).
14 The dictionary defines the term “exercise” as “[a]ctivity requiring physical or mental exertion, esp. when performed to maintain or develop fitness.” Webster’s II New College Dictionary 392 (2d ed. 1999).
[HN11] Although there is public interest in holding a health club to its general common law duty to business invitees — to maintain its premises in a condition safe from defects that the business is charged with knowing or discovering — it need not ensure the safety of its patrons who voluntarily assume some risk by engaging in strenuous physical activities that have a potential to result in injuries. Any requirement to so guarantee a patron’s safety from all risk in using equipment, which understandably is passed from patron to patron, could chill the establishment of health clubs. Health clubs perform a salutary purpose by offering activities and equipment so that patrons can enjoy challenging physical exercise. There has been recognized a “positive social value” in allowing gyms to limit their liability [*44] in respect of patrons who wish to assume the risk of participation in activities that could cause an injury. See Robert Heidt, The Avid Sportsman and the Scope for Self-Protection: When Exculpatory Clauses Should be Enforced, 38 U. Rich. L. Rev. 381, 389 (2004). And, further, it is not unreasonable to encourage patrons of a fitness center to take proper steps to prepare, such as identifying their own physical limitations and learning about the activity, before engaging in a foreign activity for the first time.
However, [HN12] just as we held in Crawn, supra, that there remains a standard for liability even in contact recreational sports, albeit a heightened one, 136 N.J. at 503-04, 643 A.2d 600, there is also a limit to the protections that a private fitness center reasonably may exact from its patrons through the mechanism of an exculpatory agreement. Although it would be unreasonable to demand that a fitness center inspect each individual piece of equipment after every patron’s use, it would be unreasonable, and contrary to the public interest, to condone willful blindness to problems that arise with the equipment provided for patrons’ use. 15 Thus, had Powerhouse’s management or employees been aware [*45] of a piece of defective exercise equipment and failed to remedy the condition or to warn adequately of the dangerous condition, or if it had dangerously or improperly maintained equipment, Powerhouse could not exculpate itself from such reckless or gross negligence. That showing was not made on this record.
15 Indeed, even in those areas where the Legislature has imposed an assumption of risk by patrons of some recreational activities, certain common risks were legislatively retained for operators of such facilities. See N.J.S.A. 5:13-1 to -11 (ski facilities); N.J.S.A. 5:14-1 to -7 (roller rinks); N.J.S.A. 5:15-1 to -12 (providers of equestrian activities). Importantly, among those risks were knowingly providing equipment that is faulty to the extent that it causes or contributes to injury; liability for injuries by a known dangerous latent condition on property for which warning signs have not been posted; and intentional injuries caused by the operator. Guided by the Legislature’s own sense of operator risk that cannot be shirked, we regard such knowing and intentional acts of negligence as equivalent to the gross negligence that has been historically beyond the reach of exculpatory [*46] agreements.
As previously noted, the Appellate Division specifically found that the record was barren of evidence that Powerhouse had neglected over time to maintain its equipment. Stelluti, supra, 408 N.J. Super. at 460-61, 975 A.2d 494 (finding absence of any “chronic or repetitive patterns of inattention to the safety of the equipment”). There simply was no evidence in this record rising to such reckless or gross negligence in respect of Powerhouse’s duty to inspect and maintain its equipment. Thus, we do not share the concern voiced by the dissent. Our decision cannot reasonably be read to signal that health clubs will be free to engage in “chronic or repetitive patterns of inattention to the safety of the[ir] equipment.” Ibid. Nor do we share the dissent’s view that today’s holding gives a green light to permit widespread use of exculpatory agreements in restaurants, malls, and supermarkets. That extrapolation fails to account for our careful examination into the relevant nature of the type of activity that takes place in a private health club.
In sum, the standard we apply here places in fair and proper balance the respective public-policy interests in permitting parties to freely contract in [*47] this context (i.e. private fitness center memberships) and requires private gyms and fitness centers to adhere to a standard of conduct in respect of their business. Specifically, we hold such [HN13] business owners to a standard of care congruent with the nature of their business, which is to make available the specialized equipment and facility to their invitees who are there to exercise, train, and to push their physical limits. That is, we impose a duty not to engage in reckless or gross negligence. We glean such prohibition as a fair sharing of risk in this setting, which is also consistent with the analogous assumption-of-risk approach used by the Legislature to allocate risks in other recreational settings with limited retained-liability imposed on operators.
In the instant matter, like the Appellate Division, we feel no obligation to reach and discuss the validity of other aspects of the agreement not squarely presented by the facts of Stelluti’s case. Thus, we need not address the validity of the agreement’s disclaimer of liability for injuries that occur on the club’s sidewalks or parking lot that are common to any commercial enterprise that has business invitees. With respect [*48] to its agreement and its limitation of liability to the persons who use its facility and exercise equipment for the unique purpose of the business, we hold that it is not contrary to the public interest, or to a legal duty owed, to enforce Powerhouse’s agreement limiting its liability for injuries sustained as a matter of negligence that result from a patron’s voluntary use of equipment and participation in instructed activity. As a result, we find the exculpatory agreement between Powerhouse and Stelluti enforceable as to the injury Stelluti sustained when riding the spin bike.
For the foregoing reasons, we affirm the judgment of the Appellate Division that sustained the award of summary judgment to defendant.
CHIEF JUSTICE RABNER and JUSTICES WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate dissenting opinion in which JUSTICE LONG joins.
DISSENT BY: ALBIN
JUSTICE ALBIN, dissenting.
Today the Court has abandoned its traditional role as the steward of the common law. For the first time in its modern history, the Court upholds a contract of adhesion with an exculpatory clause that will allow a commercial, profit-making company to operate negligently [*49] — injuring, maiming, and perhaps killing one of its consumer-patrons — without consequence. Under the Court’s ruling, a health club will have no obligation to maintain its equipment in a reasonably safe manner or to require its employees to act with due care toward its patrons. That is because, the Court says, a health club patron has the right to contract not only for unsafe conditions at a health club, but also for careless conduct by its employees. The Court’s decision will ensure that these contracts of adhesion will become an industry-wide practice and that membership in health clubs will be conditioned on powerless consumers signing a waiver immunizing clubs from their own negligence. The Court’s ruling undermines the common-law duty of care that every commercial operator owes to a person invited on to its premises.
Without the incentive to place safety over profits, the cost to the public will be an increase in the number of avoidable accidents in health clubs. And like the plaintiff in this case, the victims of the clubs’ negligence will suffer the ultimate injustice — they will have no legal remedy.
Tens of thousands of New Jersey citizens join health clubs to stay healthy [*50] — to reduce the prospect of suffering from heart disease or a stroke, to battle obesity, and to improve the likelihood of living a longer life. The irony is that those who seek to live a better lifestyle through membership at a health club, now, will have a greater likelihood of having their well-being impaired through the careless acts of a club employee.
The ruling today is not in the public interest, not consistent with this Court’s long-standing, progressive common-law jurisprudence protecting vulnerable consumers, and not in step with the enlightened approaches taken by courts of other jurisdictions that have barred the very type of exculpatory clause to which this Court gives its imprimatur.
Because in upholding the exculpatory agreement the Court wrongly dismisses the case of plaintiff, Gina Stelluti, I respectfully dissent.
Ms. Stelluti’s case was dismissed by the trial court on defendant’s motion for summary judgment. Therefore, in reviewing the correctness of that decision, the facts must be viewed in the light most favorable to her. Senna v. Florimont, 196 N.J. 469, 475 n.1, 958 A.2d 427 (2008); see also R. 4:46-2(c). Those facts present a cautionary tale.
On January 13, 2004, Gina Stelluti, [*51] then thirty-nine years old, joined the Powerhouse Gym (also referred to as Powerhouse Fitness and the Club) in Brick, New Jersey. 1 She arrived at the Club that day at 8:30 a.m., intending to participate in the 8:45 a.m. spin class. Before the spin class, with the assistance of a Powerhouse employee, Ms. Stelluti completed a “Membership Agreement” form, a “Member Information” form, a “Health/Safety Consent” form, and a “Powerhouse Fitness (The Club) Waiver & Release Form.” As a condition of membership, she agreed to pay an enrollment fee and monthly fees. The waiver form signed by Ms. Stelluti released Powerhouse from liability for any injury she might suffer regardless of Powerhouse’s fault. Powerhouse immunized itself from liability even if it caused serious bodily injury or death through the negligent maintenance of its equipment or the careless acts of its instructors and other employees. The waiver form was not explained to Ms. Stelluti. No one disputes that the contract was non-negotiable and offered on a take-it-or-leave-it basis, the very essence of a contract of adhesion. 2
1 Powerhouse Gym is the trade name for the health club operated by defendant Casapenn Enterprises, LLC.
2 “[T]he [*52] essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v. N. Jersey Dist. Water Supply Comm’n and First Fid. Bank, 127 N.J. 344, 353, 605 A.2d 681 (citations omitted), cert. denied, 506 U.S. 871, 113 S. Ct. 203, 121 L. Ed. 2d 145 (1992).
Fifteen minutes after her arrival and completion of the paperwork, Ms. Stelluti was in the spin class. She informed the Powerhouse instructor that she had never taken a spin class before. The instructor told Ms. Stelluti to watch her during the class. The instructor strapped Ms. Stelluti’s feet into the bicycle and adjusted the bicycle seat. The class began, and shortly afterwards the handlebars to Ms. Stelluti’s bicycle came flying off, causing Ms. Stelluti to fall forward onto the floor while her feet were still strapped to the bike. Ms. Stelluti’s physical-education expert concluded that the accident occurred because Powerhouse’s instructor did not properly supervise or instruct Ms. Stelluti concerning the handlebars’ “snap pin” adjustment to the spin bicycle. In short, this [*53] avoidable accident occurred because the instructor carelessly forgot to make certain that the bicycle’s handlebars were secured.
As a result of her injuries, Ms. Stelluti suffered pain to her back, neck, and shoulders, and soreness in her thighs. She also sustained a cracked tooth. Ms. Stelluti, a waitress, had no health insurance and received treatment through charity-care facilities located at Community Medical Center in Toms River, Ocean Medical Center, and Jersey Shore University Medical Center. Three years after the accident, a board certified orthopedist offered his opinion that Ms. Stelluti suffered from “permanent chronic pain associated with myofascial pain syndrome.”
Ms. Stelluti filed a lawsuit against Powerhouse, alleging that its negligence caused the accident. More specifically, she claims that Powerhouse failed to maintain the spin bicycle in a safe manner, to give her proper instructions in the use of the equipment, and to use due care in supervising her during the spin class.
The trial court upheld the exculpatory clause against Ms. Stelluti’s claims and granted Powerhouse’s motion for summary judgment. The Appellate Division affirmed, concluding that Powerhouse’s contract [*54] of adhesion exculpated it from ordinary negligence. 408 N.J. Super. 435, 448, 459, 975 A.2d 494 (App. Div. 2009). The appellate panel held that “at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.” Id. at 459, 975 A.2d 494. The panel found that “[t]he fact that the class instructor may not have checked or tightened plaintiff’s handlebars does not amount to anything worse than an unfortunate and perhaps careless omission” and that if “the pin was left in a non-secure position overnight by the club’s maintenance or cleaning crew, that only would comprise an isolated act of simple negligence.” Id. at 460, 975 A.2d 494.
I cannot conclude that the “careless omission” — the failure to properly instruct Ms. Stelluti or to maintain equipment in a safe condition — is beyond the protection of our common law, merely because Powerhouse compels a patron to sign an exculpatory clause. Powerhouse’s “simple negligence” has had lasting, painful consequences for Ms. Stelluti, a first-time participant at the health club’s spin class. Additionally, Ms. [*55] Stelluti did not have the burden of proving that Powerhouse committed multiple acts of negligence against an assortment of patrons. It should have been enough that Powerhouse committed an act of negligence against Ms. Stelluti. Typically, a plaintiff prosecuting a personal-injury lawsuit need show only that she suffered from an act of negligence; she is not required to establish that the act was part of a larger pattern of negligence. Negligence has been defined as
[the] failure to exercise, in the given circumstances, that degree of care for the safety of others, which a person of ordinary prudence would exercise under similar circumstances. It may be the doing of an act which the ordinary prudent person would not have done, or the failure to do that which the ordinary prudent person would have done, under the circumstances then existing.
[Model Jury Charge (Civil), Negligence and Ordinary Care — General § 5.10A(1) (pre-1984).]
This Court must assume, for purposes of the summary judgment motion, that Powerhouse was negligent. Like the appellate panel, the Court concludes that Ms. Stelluti’s signature on the waiver form exculpates Powerhouse from its own lack of due care. That legal [*56] conclusion flies in the face of the progressive development of the common law by this Court over the course of decades.
“Exculpatory agreements have long been disfavored in the law because they encourage a lack of care.” Hojnowski v. Vans Skate Park, 187 N.J. 323, 333, 901 A.2d 381 (2006) (emphasis added) (citations omitted). “For that reason, courts closely scrutinize liability releases and invalidate them if they violate public policy.” Ibid. (citation omitted); see also Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 578, 675 A.2d 209 (1996) (“[C]ourts will not enforce an exculpatory clause if . . . exoneration of the party would adversely affect the public interest.” (citation and internal quotation marks omitted)); Mayfair Fabrics v. Henley, 48 N.J. 483, 487, 226 A.2d 602 (1967) (“[W]here there is unequal bargaining power, the public interest may call for rejection of an exculpatory clause exacted by the dominant party . . . .”). Public policy is expressed not only in legislation, but also through the common law as developed by this Court. See Vasquez v. Glassboro Serv. Ass’n, Inc., 83 N.J. 86, 98, 415 A.2d 1156 (1980).
A common-law duty — such as the duty to exercise reasonable care in maintaining commercial premises open [*57] to consumers — is “derive[d] from considerations of public policy and fairness.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993) (citation omitted). Under our common law, business owners owe “a duty of reasonable or due care to provide a safe environment” to their patrons and “to discover and eliminate dangerous conditions” on their premises. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, 818 A.2d 314 (2003). Because business owners are in the best position to prevent the risk of harm to their customers, it is fair they should be responsible for injuries caused by their negligence. See Hojnowski, supra, 187 N.J. at 335, 901 A.2d 381. Unlike the customer, “[t]he operator of a commercial recreational enterprise can inspect the premises for unsafe conditions, train his or her employees with regard to the facility’s proper operation, and regulate the types of activities permitted to occur.” Ibid. The customer has no ability or right to control commercial premises, and therefore allowing a business owner to transfer the risk to the customer would undermine the very purpose of our premises-liability law. See Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 799 (Vt. 1995).
“No contract can be sustained if it is [*58] inconsistent with the public interest or detrimental to the common good.” Vasquez, supra, 83 N.J. at 98, 415 A.2d 1156 (citation omitted). That is true whether the contract violates a statutory or common-law duty. The common law is not an inferior kind of law, as is suggested by the Court’s opinion today. The Legislature may enact a statute that alters or overrides the common law, but until such time the common law holds no lesser status than a statute when it commands that a duty be obeyed.
In the past, this Court has struck down exculpatory clauses that violated public policy, expressed either in the common law or a statute, particularly when there was inequality in bargaining power between the parties to the contract. See, e.g., Hojnowski, supra, 187 N.J. at 338, 901 A.2d 381 (holding that “a parent’s execution of a pre-injury release of a minor’s future tort claims arising out of the use of a commercial recreational facility is unenforceable”); Carvalho, supra, 143 N.J. at 569, 578-79, 675 A.2d 209 (striking down exculpatory agreements between construction site engineer, township, and developer that exonerated engineer from liability to injured construction worker); McCarthy v. NASCAR, Inc., 48 N.J. 539, 540-43, 226 A.2d 713 (1967) (striking [*59] down exculpatory agreement between NASCAR and racecar driver injured in accident as contrary to public policy expressed in statutory scheme); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 364-67, 377, 403-04, 161 A.2d 69 (1960) (invalidating contractual provision exculpating manufacturer from liability for personal injury to purchaser of automobile). Cf. Horelick v. Pa. R.R. Co., 13 N.J. 349, 357, 99 A.2d 652 (1953) (noting in common carrier case that “[f]or negligent failure to discharge such responsibility to its passengers, the [Railroad] would seemingly be accountable even if the tickets issued by it had contained express provision to the contrary”); Blauvelt v. Citizens Trust Co., 3 N.J. 545, 554-55, 71 A.2d 184 (1950) (noting that New Jersey “courts have applied a strict construction to such exculpatory clauses . . . and have said that they do not relieve a trustee of liability where a loss results from negligence in the administration of the trust,” but finding no negligence (internal citations omitted)).
On the other hand, this Court has recognized that sophisticated commercial entities, exercising equal bargaining power, are capable of protecting their own interests. See, e.g., Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 230, 864 A.2d 387 (2005) [*60] (“Ordinarily, we are content to let experienced commercial parties fend for themselves and do not seek to ‘introduce intolerable uncertainty into a carefully structured contractual relationship’ by balancing equities.” (citation omitted)). Thus, this Court has upheld an exculpatory clause in a contract between a commercial landlord and commercial tenant, who were not in unequal bargaining positions, and allowed them to distribute risk between themselves as they saw fit. Mayfair Fabrics, supra, 48 N.J. at 488-90, 226 A.2d 602.
Never before in the modern era has this Court upheld an exculpatory clause in which a commercial enterprise protects itself against its own negligence at the expense of a consumer, who had no bargaining power to alter the terms of the contract. The high courts of other states have struck down exculpatory clauses similar to the type that our Court now validates. See, e.g., Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 741-42, 747-48 (Conn. 2005) (finding that exculpatory agreement releasing recreational snowtube operator from prospective liability caused by operator’s negligence violates public policy and therefore is unenforceable); Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 796 (Vt. 1995) [*61] (invalidating contractual agreement exculpating ski operator from liability for its negligence in personal-injury claim brought by patron); Hiett v. Lake Barcroft Cmty. Ass’n, Inc., 244 Va. 191, 418 S.E.2d 894, 895-96, 8 Va. Law Rep. 3381 (Va. 1992) (invalidating pre-injury release clause exculpating community association from its negligence in allegedly causing injury in swimming portion of athletic event).
Under Virginia’s common law, contractual “provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited ‘universally.'” Hiett, supra, 418 S.E.2d at 896-97 (citation omitted). Since 1890, Virginia’s law has held that one party cannot “put the other parties to the contract at the mercy of its own misconduct” because “[p]ublic policy forbids it, and contracts against public policy are void.” Id. at 896 (quoting Johnson’s Adm’x v. Richmond & D. R. Co., 86 Va. 975, 11 S.E. 829, 829 (Va. 1890)). The 1890 Virginia Supreme Court found that exculpatory agreements are barred “where an enlightened system of jurisprudence prevails.” Johnson’s Adm’x, supra, 11 S.E. at 829.
The Vermont Supreme Court in Dalury held “that the exculpatory agreements which defendants require [*62] skiers to sign, releasing defendants from all liability resulting from negligence, are void as contrary to public policy.” 670 A.2d at 796. Vermont’s high court concluded that enforcing such an exculpatory agreement would undermine the state’s premises-liability law. Id. at 799. It further explained:
The policy rationale is to place responsibility for maintenance of the land on those who own or control it, with the ultimate goal of keeping accidents to the minimum level possible. Defendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management. They alone can insure against risks and effectively spread the cost of insurance among their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area’s negligence.
The Connecticut Supreme Court agreed with the reasoning of Dalury in striking down an exculpatory agreement immunizing a snowtube operator from its own negligence. Hanks, supra, 885 A.2d at 743-46. [*63] Connecticut’s high court observed that “[t]he societal expectation that family oriented recreational activities will be reasonably safe is even more important where . . . patrons are under the care and control of the recreational operator as a result of an economic transaction.” Id. at 744. It also noted that “it is illogical to permit snowtubers, and the public generally, to bear the costs of risks that they have no ability or right to control.” Id. at 745.
In New York, by statute, exculpatory agreements that exempt gymnasiums and other similar recreational facilities from liability for their negligence are “void as against public policy and wholly unenforceable.” N.Y. Gen. Oblig. Law § 5-326 (2010). 3
3 N.Y. Gen. Oblig. Law § 5-326 (2010) declares that exculpatory agreements
between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such [*64] establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
These cases, as well as the New York statute, show that the right to contract should be subordinate to the greater public interest.
Unlike health clubs, the allocation of risks between ski operators, roller skating rinks, equine establishments, and their customers is governed by statute, not the common law. See N.J.S.A. 5:13-1 to -11 (ski statute); N.J.S.A. 5:14-1 to -7 (Roller Skating Rink Safety and Fair Liability Act); N.J.S.A. 5:15-1 to -12 (Equine Act). However, even in those statutes, the Legislature has not suggested that commercial operators in those fields can exempt themselves from liability through the use of exculpatory clauses.
Moreover, the Legislature has seen no need to give health clubs the power to immunize themselves from their own negligence. Indeed, as part of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -181 (N.J.S.A. 56:8-1 to -195 as of December 1, 2010), the Legislature has given consumers statutory protection from unscrupulous health club service contracts. N.J.S.A. 56:8-39 to -48. Nowhere in that statutory scheme does the Legislature give approval to a health club to insert an [*65] exculpatory clause in a contract of adhesion — the ultimate device by which a commercial interest, through the use of superior bargaining power, forces consumers to accept terms contrary to their best interests.
It is hard to imagine how the public interest could be served by permitting health clubs to exempt themselves from the common law governing premises liability. Tens of thousands of people in this State go to health clubs to maintain healthy lifestyles and to improve their health. See Active Marketing Group, 2007 Health Club Industry Review 5-6 (2007), available at http://activemarketinggroup.com/AssetFactory.aspx?did=32 (estimating that as of 2005, New Jersey had more than 1000 health clubs, and that 16.6% of its population belonged to one); Miriam A. Cherry, Exercising the Right to Public Accommodations: The Debate over Single-Sex Health Clubs, 52 Me. L. Rev. 97, 103 (2000) (noting reasons why people attend health clubs). In 2006, the Legislature made a finding that “as many as 30 million people now visit health and exercise centers in this country.” N.J.S.A. 2A:62A-30(d).
The benefits of exercise are beyond dispute. The Surgeon General has declared “that Americans can substantially [*66] improve their health and quality of life by including moderate amounts of physical activity in their daily lives.” U.S. Dep’t of Health and Human Servs., Physical Activity and Health: A Report of the Surgeon General 3 (1996), available at http://www.cdc.gov/nccdphp/sgr/pdf/sgrfull.pdf. Moreover, the United States Department of Health and Human Services has found that “[b]eing physically active is one of the most important steps that Americans of all ages can take to improve their health” and that “[r]egular physical activity reduces the risk of many adverse health outcomes.” 2008 Physical Activity Guidelines for Americans, at vi, available at http://www.health.gov/paguidelines/pdf/paguide.pdf. The health benefits of exercise include lower risks of early death, coronary heart disease, stroke, high blood pressure, obesity, adverse blood lipid profile, type 2 diabetes, metabolic syndrome, colon cancer, and breast cancer, to name a few. Id. at 9. Some health clubs even have rehabilitation/physical therapy programs for accident or stroke victims.
Whatever the Court says in its opinion, people will continue to go to health clubs, even if they are compelled to sign away their rights in a contract [*67] of adhesion. Most people do not have at their individual disposal the sophisticated exercise machinery and equipment, indoor tracks, pools, and trainers offered at health clubs. Gina Stelluti is a perfect example — a waitress without health insurance, who could not possibly afford to purchase the equipment available at a health club.
Ms. Stelluti does not claim that Powerhouse should be the general guarantor for every injury suffered in its facility. This case is not about a health club patron asserting that the facility is legally responsible for an injury caused by over-exertion, misuse of equipment, or from the act of another patron over whom the club has no control. Rather, Ms. Stelluti merely argues that a health club should be held responsible if it does not maintain its equipment in a reasonably safe manner and if its instructors do not exercise due care — matters over which a club does have control. It is one thing to assume a risk of which one is aware. It is another thing to say, as the Court does, that one should assume the risk for a dangerous condition of which one is unaware and over which one has no control. That health club members should assume the risk, as suggested [*68] by the Court, for the club’s failure to inspect and maintain its equipment in a reasonably safe condition runs completely contrary to the rationale underlying our common law governing premises liability.
Tort law is not just about compensating victims, but also about preventing accidents. By allowing a health club to eliminate its duty to exercise a reasonable degree of care, the majority has decreased the incentives for health clubs to provide a reasonably safe environment for their patrons. This will inevitably lead to more preventable accidents. Because health clubs will not have a legal incentive to maintain their equipment in a reasonably safe manner, how many cases will there be of handlebars flying off of spin bikes, of cables to weight machines breaking, of pools mistakenly treated with the wrong amounts or kinds of chemicals? Increasing profits is the dominant force motivating most commercial establishments; increasing public safety had been one of the objectives of tort law.
Powerhouse has not introduced any evidence that striking down the exculpatory clause will lead to an exorbitant financial expense or that increased insurance premiums cannot be minimally passed along [*69] to patrons. Hojnowski, supra, 187 N.J. at 335-36, 901 A.2d 381 (noting that commercial recreational operators can “spread the costs of insurance among its customers”). Our Court did not permit an automobile manufacturer — through an exculpatory clause in a contract — to immunize itself for personal injury caused by a defective car in Henningsen, supra, 32 N.J. at 365-67, 404, 161 A.2d 69, although building safer cars arguably might cost more. Encouraging safely built automobiles was in the public interest. Safer cars result in fewer serious injuries and deaths, and presumably fewer lawsuits. Similarly, invalidating exculpatory clauses that insulate health clubs from their own negligence will encourage health club owners to keep their premises reasonably safe, which will result in fewer injuries and deaths, and fewer lawsuits.
There is a simple logic behind the law of premises liability: when business owners exercise due care, there are fewer accidents; when there are fewer accidents, there are fewer lawsuits; when there are fewer lawsuits, insurance premiums are more likely to go down rather than up. See, e.g., David A. Hyman & Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice [*70] Liability Part of the Problem or Part of the Solution?, 90 Cornell L. Rev. 893, 917-20 (2005) (detailing how tort liability and high insurance premiums led anesthesiologists to enact reforms, and “[a]s anesthesia became safer, lawsuits against anesthesiologists became less frequent and liability premiums for anesthesiologists declined significantly”).
Not only is it unfair to saddle a blameless patron with the costs of the club’s negligence, but we must recognize that the costs of preventable injuries are shouldered by society in many different ways, including through unemployment insurance, social services, and increased health-care costs. Ms. Stelluti — a victim without health insurance — is a case in point. Although her injuries were caused by the negligence of a commercial, profit-making entity, the State, which subsidizes charity care, will pick up a good part of the cost of her medical bills.
Finally, the Court relegates the common law to second-class status, allowing a contract of adhesion to eviscerate protections intended to safeguard the health and lives of consumers. In doing so, the Court has revived the discredited doctrine that the right to contract trumps the public [*71] interest — in this case, the public interest expressed in the common law. The Court’s decision brings to mind the Lochner era of the early twentieth century when the United States Supreme Court struck down social-welfare legislation under the banner of the right to contract. See, e.g., Lochner v. New York, 198 U.S. 45, 57-58, 64, 25 S. Ct. 539, 543-44, 546, 49 L. Ed. 937, 941-42, 944-45 (1905) (striking down state law that regulated maximum number of hours bakers could work); Adkins v. Children’s Hosp. of D.C., 261 U.S. 525, 539, 545, 561-62, 43 S. Ct. 394, 395-97, 402-03, 67 L. Ed. 785, 789, 791, 798 (1923) (striking down legislation setting minimum wages for women and children in District of Columbia). In time, the Supreme Court rejected the Lochner-era right-to-contract philosophy that was used to invalidate legislation advancing the public welfare. See Lincoln Fed. Labor Union v. Nw. Iron & Metal Co., 335 U.S. 525, 536-37, 69 S. Ct. 251, 257, 93 L. Ed. 212, 221 (1949).
The right to contract is not a blank check for commercial interests to impose conditions on consumers through exculpatory clauses that violate the public’s health and safety. The adverse effects of today’s decision [*72] may be far-reaching and long felt. Other commercial entities may see this case as a signal that exculpatory clauses, extracted through contracts of adhesion, may apply to their industries, trades, and professions. If health club owners can protect themselves from their own negligence, why wouldn’t malls, supermarkets, and restaurants do the same?
The exculpatory clause to which the Court gives its blessing should be void as against public policy. That is so because the exculpatory clause in this case unfairly allocates the risk from the commercial operator, who is in the best position to remove and prevent the dangers on the premises, to the unwary patron, and because it encourages lack of due care. Exalting the right to contract — a contract of adhesion, no less — over the public interest is not in keeping with this Court’s development of a progressive and enlightened common law.
I therefore respectfully dissent.
JUSTICE LONG joins in this opinion.
McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
Scott Kondrad, a minor, by and through Shari McPhail as next friend, Plaintiff and Appellant v. Bismarck Park District, Defendant and Appellee
Supreme Court of North Dakota
2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
January 17, 2003, Filed
Prior History: [***1] Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
Counsel: Michael Ray Hoffman, Bismarck, N.D., for plaintiff and appellant.
Randall J. Bakke, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellee.
Judges: Opinion of the Court by Maring, Justice. Mary Muehlen Maring, William A.
Neumann, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.
Opinion By: Mary Muehlen Maring
[**412] Maring, Justice.
[*P1] Scott Kondrad, a minor, by and through his mother, Shari McPhail, as next friend, appealed from a summary judgment dismissing his action for damages against the Bismarck Park District for injuries suffered in a bicycle accident.
We hold a waiver and release signed by McPhail exonerates the Park District for its alleged negligence in this case, and we affirm.
[*P2] The bicycle accident occurred on September 9, 1999, at the Pioneer Elementary School while Kondrad was [***2] participating in BLAST, an after-school care program operated by the Park District. Kondrad fell on the school grounds while riding a bicycle owned by a child who was not part of the BLAST program. Kondrad injured his arm in the fall, and McPhail subsequently sued the Park District for damages on Kondrad’s behalf, asserting Kondrad’s injuries were the result of the Park District’s negligent supervision of the children in the BLAST program. The Park District moved for a summary judgment, claiming McPhail had released the Park District from liability for the accident.
The district court construed the waiver and release signed by McPhail, determined it exonerated the Park District from liability, and granted the Park District’s motion for dismissal of the case.
[*P3] On appeal, Kondrad asserts the district court erred in granting the summary judgment dismissal and in concluding that the waiver and release signed by McPhail exonerated the Park District from liability for its alleged negligence.
[*P4] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to [***3] the nonmoving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Jose v. Norwest Bank, 1999 ND 175, P7, 599 N.W.2d 293. Whether the district court properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, P6, 615 N.W.2d 160. On appeal, we review the evidence in the light most favorable to the party opposing the motion for summary judgment, giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence. Olander [**413] Contracting Co. v. Gail Wachter Invs., 2002 ND 65, P9, 643 N.W.2d 29.
[*P5] Resolution of this appeal requires us to interpret the “Parent Agreement” signed by McPhail when she enrolled Kondrad in the BLAST program, which included the following waiver and release language:
I recognize and acknowledge that there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of [***4] severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ward on account of my participation of my child/ward in this program.
Kondrad argues this language must be interpreted as exonerating the Park District from liability for damages only as to injuries sustained during “activities associated with” the BLAST program. The Park District has conceded that riding a bicycle was not an activity associated with the program. Kondrad asserts the release does not, therefore, exonerate the Park District from liability if its negligence resulted in Kondrad incurring injuries while riding the bicycle. The Park District asserts the waiver is unambiguous and released the Park District from liability for any and all injuries sustained by Kondrad while participating in the BLAST program. The Park District argues the waiver and release exonerated it from [***5] liability for negligence resulting in injury or damages to Kondrad while participating in the program irrespective of whether, at the time of the injury, Kondrad was involved in a planned activity associated with the program.
[*P6] Generally, the law does not favor contracts exonerating parties from liability for their conduct. Reed v. Univ. of North Dakota, 1999 ND 25, P22, 589 N.W.2d 880. However, the parties are bound by clear and unambiguous language evidencing an intent to extinguish liability, even though exculpatory clauses are construed against the benefitted party. Id. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Meide v. Stenehjem ex rel. State, 2002 ND 128, P7, 649 N.W.2d 532. The construction of a written contract to determine its legal effect is a question of law for the court to decide, and, on appeal, this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation of it. Egeland v. Continental Res., Inc., 2000 ND 169, P10, 616 N.W.2d 861. [***6] The issue whether a contract is ambiguous is a question of law. Lenthe Invs., Inc. v. Serv. Oil, Inc., 2001 ND 187, P14, 636 N.W.2d 189. An unambiguous contract is particularly amenable to summary judgment. Meide, 2002 ND 128, P7, 649 N.W.2d 532.
[*P7] We conclude the language of waiver and release under the agreement signed by McPhail is clear and unambiguous. We construe all provisions of a contract together to give meaning to every sentence, phrase, and word. U.S. Bank Nat’l Ass’n v. Koenig, 2002 ND 137, P9, 650 N.W.2d 820. The assumption of risk and waiver clauses are separate and distinct. Each contains a clearly expressed meaning and consequence. Under the assumption of risk clause, McPhail agreed to assume the full risk of injury and damages resulting from Kondrad participating in [**414] any activities associated with the BLAST program. In addition, under the waiver and release clause, McPhail waived and relinquished all claims against the Park District for injuries or damages incurred on account of Kondrad’s participation in the BLAST program. The language of waiver and release is not limited to only those injuries incurred [***7] while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.
[*P8] It is undisputed that Kondrad’s bicycle accident occurred on the school grounds while Kondrad was participating in the BLAST program. This is the very type of situation for which the Park District, under the release language, insulated itself from liability for alleged negligence while operating the after-school care program. Under the unambiguous language of the agreement, McPhail exonerated the Park District from liability for injury and damages incurred by Kondrad while participating in the program and caused by the alleged negligence of the Park District. 1
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Under N.D.C.C. § 9-08-02 a party is precluded from contractually exonerating itself from liability for willful acts. See Reed v. Univ. of North Dakota, 1999 ND 25, P22 n.4, 589 N.W.2d 880. The release in this case is not specifically limited to exonerating the Park District from liability for only negligent conduct.
However, Kondrad’s claim against the Park District is based on negligence, and he has not argued the release is invalid because it purports to exonerate the Park District from liability for intentional or willful acts. We do not, therefore, address that issue in this opinion.
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[*P9] We hold the Parent Agreement signed by McPhail clearly and unambiguously exonerates the Park District for injuries sustained by Kondrad while participating in the BLAST program and which were allegedly caused by the negligent conduct of the Park District. We further hold, therefore, the district court did not err in granting summary judgment dismissing Kondrad’s action against the Park District, and we affirm.
[*P10] Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.