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Marker Recalls Kingpin Ski Bindings Due to Fall Hazard

Recall Date: October 9, 2018

Recall Number: 19-006

Name of Product: Kingpin 10 and Kingpin 13 alpine touring ski bindings

Hazard: The steel pins in the toe unit can break and reduce the release force of the binding, causing a fall hazard.

Remedy: Replace: Consumers should immediately stop using these bindings and return them to a Marker authorized retailer to obtain a free replacement toe unit. Consumers should bring their boots to be sure their bindings are adjusted correctly.

Consumer Contact: Marker USA at 800-453-3862 from 8:30 a.m. to 5 p.m. ET, email at kingpin.exchange@mdv-usa.com or online at https://www.marker.net/en-us/ and click on More Info in the recall section for more information.

Pictures available here: https://www.cpsc.gov/Recalls/2019/Marker-Recalls-Kingpin-Ski-Bindings-Due-to-Fall-Hazard

Recall Details

Units: About 4,100 (in addition, about 2,200 were sold in Canada)

Description: This recall involve s 2017-2018 Kingpin models 10 and 13 ski binding, with a black body and gold or copper accent coloring. The bindings are used with alpine touring ski boots with metal pintech inserts in the toe of each boot. The recalled toe units have heel units with serial numbers on the back in the following ranges: Kingpin 10 (337804 – 418632) and Kingpin 13 (337798 – 411728).

Model Number    Product Name    Accent Color

7733R1MA    KINGPIN 10; 75 – 100 mm    gold

7733R1MB    KINGPIN 10; 100 – 125 mm    gold

7933R1MA    KINGPIN 13; 75 – 100 mm    gold

7734R1MA    KINGPIN 10 Demo; 75 – 100 mm    gold

7934R1MB    KINGPIN 13 Demo; 100 – 125 mm    gold

7933R1MB    KINGPIN 13; 100 – 125 mm    gold

7733S1MA    KINGPIN 10; 75 – 100 mm    copper

7733S1MB    KINGPIN 10; 100 – 125 mm    copper

7933S1MA    KINGPIN 13; 75 – 100 mm    copper

7933S1MB    KINGPIN 13; 100 – 125 mm    copper

7734S1MA    KINGPIN 10 Demo; 75 – 100 mm    copper

7934S1MB    KINGPIN 13 Demo; 100 – 125 mm    copper

Incidents/Injuries: None reported

Sold At: Specialty ski and backcountry equipment stores nationwide and online at evo.com, backcountry.com, and theskimonster.com from March 2017 through April 2018 for between $500 and $650.

Manufacturer(s): Marker CZ, of Czech Republic

Importer(s): Marker USA, of Lebanon, N.H.

Manufactured
In: Czech Republic

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council,


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Poorly written jurisdiction and venue clause places the defendant in jam when the defendant counter claims for attorney fees and costs.

This case was based on a zip-line accident. The release signed by the plaintiff had a forum selection clause, also known as a jurisdiction and venture clause. However, the clause was limited way so that when the defendant brought a counterclaim for attorney fees, it negated the forum selection clause.

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

State: Massachusetts, United States District Court for the District of Massachusetts

Plaintiff: Josephine Pittman

Defendant: Zoar Outdoor Adventure Resort, Inc.

Plaintiff Claims: gross negligence and fraudulent inducement concerning a participant agreement and waiver of liability

Defendant Defenses: Release

Holding: Basically, for the Plaintiff

Year: 2017

Summary

This case was based on a zip line accident at the defendant’s location. The plaintiff filed the case in state court in Massachusetts. The defendant then removed the case to Federal District Court because the parties were from two different states.

After removal, the defendant filed a counterclaim for fees and costs as per the release. The plaintiff filed a motion to dismiss the counter claim because it was filed in the wrong court. Meaning the jurisdiction and venue clause was written in such a way it only applied to the complaint and not the counterclaim.

Facts

The facts concerning the actual accident are nowhere in the decision. This decision is based solely on the issues of jurisdiction and venue.

This opinion is based upon a motion to dismiss filed by the plaintiff, to dismiss the counter claim of the defendant for attorney fees and costs for filing the complaint to begin with.

No decision on the facts was made as of the writing of this decision.

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

The court did a thorough analysis of forum selection clauses in its review of the issues.

In that jurisdiction, forum selection clauses, also known as jurisdiction and venue clauses, are valid and usually upheld. “Forum selection clauses “‘are prima facie valid and should be enforced.'”

There are two issues the court must review to determine if the forum selection clause should be followed.

Before giving effect to a forum selection clause, a court must address certain threshold is-sues, including whether: (1) the clause is mandatory or permissive; and (2) the clause governs the claims allegedly subject to it.

There are two types of forum selection clauses, mandatory and permissive. Permissive forum selection clauses allow the parties to change the jurisdiction and venue. Mandatory clauses require the court to follow the contract and change the venue and apply the jurisdiction identified in the forum selection clause.

“‘Permissive forum selection clauses, often described as “consent to jurisdiction” clauses, authorize jurisdiction and venue in a designated forum, but do not prohibit litigation elsewhere. . . . In contrast, mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum.'”

Not only is the language in the clause used to determine if it is permissive or mandatory, but also if the forum selection clause refers to a venue. Mandatory forum selection clauses include a required venue.

The next part, whether the clause governs the claims allegedly subject to the clause was the major issue. Consequently, the language of the clause was the difference. The clause stated: “”[i]n the event [Plaintiff] file[s] a lawsuit against Zoar, [Plaintiff] agree[s]” to the venue specified in paragraph 6 of the Participant Agreement

The court interpreted the clause to only apply to the lawsuit brought by the plaintiff, as the clause states. The court found the forum selection clause did not apply to the counterclaim filed by the defendant against the plaintiff.

Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement.

However, here is where the decision starts to twist, and the defendant is saved, but only saved by accident.

The plaintiff in filing their motion to dismiss the counterclaim did not also move to change the venue or send the case back to state court. The plaintiff’s claim was going to be litigated in Federal District court where it has been moved.

The court implies if the plaintiff had moved to dismiss or change venue the court might have been inclined to do so. As it was, the forum selection clause only applied to the plaintiff’s claims against the defendant. The court claim was not subject to the clause.

Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement.

However, since the majority of the lawsuit would be based on the plaintiff’s complaint, it would be jurisdictionally economical to keep both cases together. Furthermore, the plaintiff claimed in her defense to the release that she was fraudulently induced to sign the release. If she prevailed on that claim, the forum selection clause would not apply because the contract, the release would not be valid.

If she succeeds in meeting her burden of proof on this point, she will not be bound by the terms of the Participant Agreement, which is the sole basis for Defendant’s counterclaim for fees and costs. Thus, Plaintiff’s claims and Defendant’s counterclaim “involve a common nucleus of operative fact [and] all claims should be adjudicated together in this court.

So, until the trial is over on the plaintiff’s complaint and the validity of the plaintiff’s defense to the release, the motion to change the venue because the forum selection, clause did not apply to the country claim was denied.

The court dismissed the plaintiff’s motion to dismiss the defendant’s counterclaim.

So Now What?

Here again, not understanding the breath of a lawsuit when writing a release almost cost the defendant. Judicial economy, not wasting the court’s time and money or either of the parties’ time and money is what saved the day.

If you need your release written properly to cover the issues, you have, the people you market too and the activities you offer, please contact me.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

    

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Twenty Years ago, releases were void in New York, here; a release stopped a claim for an injury from a plaintiff playing flag football

New York has a statute that voids releases if used by places of amusement where you pay to enter. Issue in this case was, did the plaintiff pay to enter the field or pay the league.

By paying the league, he did not pay a place of amusement, and the release stopped his claims.

Marcf v. Middle Country Center School District, Long Island Flag Football League, Inc. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

State: New York: Supreme Court of New York, Suffolk County

Plaintiff: Murat Marcf

Defendant: Middle Country Center School District, Long Island Flag Foot-Ball League, Inc. and Long Island Flag Football, Inc.,

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: December 2017

This case is one of many showing how release law has changed over the years. New York was a state that once barred releases and now easily enforces them. If you use releases, you must stay current on the law affecting your release. You probably also need to have your release updated. Contact me if you need your release checked.

Summary

New York GOL § 5-326 states that in New York places of amusement, where the patrons pay to enter or play are void. Here the place of amusement was a football field owned by the defendant. However, the plaintiff did not pay the defendant to play on the field; he paid the flag football league so the release he signed was valid and stopped his claims.

Facts

The plaintiff was injured playing flag football. His flag football game was part of a league. The plaintiff paid the league to play, and the league organized games and places to play.

The plaintiff jumped to receive a pass and landed on a concealed sprinkler head inuring is foot. He sued to recover for his injuries. The field he was playing on was owned by the defendant school district.

Before playing the plaintiff signed a release. The defendants filed a motion to dismiss the plaintiff claims based upon the release. The following is the court’s analysis and dismissal of the plaintiff’s complaint.

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

The court thoroughly went through release law in New York. The court referred to the release as documentary evidence that must resolve all factual issues if the motion was to be granted.

For the release to be valid, the terms of the release must be clear, unambiguous and conclusively dispose of the matter. A release is a contract and will be governed by contract law. If the release is not void by statute or public policy a release absolving a party of negligence will be enforced.

The court found the language of the release was clear and unambiguous and thus enforceable and binding upon the parties. The release is valid and enforceable unless the plaintiff claims duress, illegality, fraud or mutual mistake. Here the plaintiff did not plead any of those.

Plaintiff in this matter makes no claim of duress, illegality, fraud, or mutual mistake in the signing of the subject Release. Instead, plaintiff alleges in opposition to the motion that the Release is void as against public policy pursuant to GOL § 5-326, and that defendant is, therefore, barred from relying on the Release in seeking dismissal of the plaintiff’s complaint. GOL § 5-326 renders void and unenforceable agreements that exempt certain places of public amusement, recreation and similar establishments from liability.

General Obligations Law § 5-326 was enacted to stop gyms from using a release. The courts have not looked at the statute from stopping places of amusement from using a release.

In general, when a participant pays a fee to use recreational facilities, or pays league fees and the league pays for use of those facilities, a waiver and release of liability signed by the participant is void pursuant to GOL § 5-326 To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5-326, there must be an evidentiary showing that the individual paid a fee for use of the facility…

Here the plaintiff did not pay to use the field, the place of amusement. The plaintiff paid to join the league. The field was used for free by the league.

A plaintiff’s complaint will be properly dismissed pursuant to CPLR 3211(a)(5) where the plaintiff claims that the Release is void pursuant to GOL §5-326, but fails to establish that he or she paid a fee directly to the owner or operator of the recreational facility for use of the facility where the alleged injury occurred…

Because the plaintiff did not pay the “place of amusement” the owner of the field, GOL §5-326 did not apply.

So Now What?

Release law evolves, constantly. The evolution of releases in New York went from they were void because of GOL §5-326, to unless the plaintiff can prove an exact relationship to the defendant and the statute the release will be valid.

If you use a release, you must stay current on release law. Read these articles and if your release has not been updated in a while contact me.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

   

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Marcf v. Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

Marcf v. Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

Murat Marcf, Plaintiff(s), against Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and LONG ISLAND FLAG FOOTBALL, INC., Defendant(s).

3015-2016

SUPREME COURT OF NEW YORK, SUFFOLK COUNTY

57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

December 11, 2017, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: league, football, flag, void, documentary evidence, signing, public policy, establishment, unambiguous, supporting papers, recreational facilities, unenforceable, participating, conclusively, recreation, amusement, playing, binding, matter of law, causes of action, entitlement, enforceable, illegality, gymnasium, producing, dispose, duress, mutual, exempt, facie

HEADNOTES

Release–Scope of Release–General Obligations Law § 5-326 did not void unambiguous waiver and release of liability where plaintiff paid fee to league to play flag football on field on which he was injured since no part of fee went to field owner. General Obligations Law § 5-326 (Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable).

COUNSEL: [*1] For Plaintiff: Siben & Siben, LLP, Bay Shore, New York.

For Defendants: Havkins Rosenfeld Ritzert & Varriale, New York, New York.

JUDGES: PETER H. MAYER, J.S.C.

OPINION BY: PETER H. MAYER

OPINION

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the defendants, dated June 15, 2016, and supporting papers; (2) Affirmation in Opposition by the plaintiff, dated August 22, 2016, and supporting papers; (3) Reply Affirmation by the defendants, dated September 15, 2016, and supporting papers; (4) Sur Reply by the plaintiff, dated September 21, 2016, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. # 001) by defendants, Middle Country Central School District (“School District”) and Long Island Flag Football, Inc., s/h/a Long Island Flag Football League, Inc. and Long Island Flag Football, Inc. (“the League”), which seeks an Order dismissing the plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (5), is hereby granted; and it is further

ORDERED that counsel for defendants shall promptly serve a copy of this Order upon counsel for all parties by First Class [*2] Mail, and shall promptly thereafter file the affidavit(s) of such service with the Suffolk County Clerk.

In this action, plaintiff alleges that on October 4, 2015 he injured his left foot while playing in a League flag football game, when he jumped to catch a pass and landed on a concealed sprinkler head. The game was being played on a field located on the grounds of Newfield High School, which is operated by the defendant School District. Prior to playing in the football game, plaintiff and his teammates signed a Waiver and Release of Liability (“Release”), which states:

In return for my being allowed to participate in any way in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., I release and agree not to sue the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., its employees directors and non-employees such as referees, coaches, agents, sponsors, and owners of fields used, from all present and future claims made by me or my family, estate, heirs or assigns for property damage, personal injury, or wrongful death arising as a result of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and caused by the ordinary negligence of the parties above, wherever, whenever, or however the same may [*3] occur. I understand and agree that those listed above are not responsible for any injury or property damage arising out of my participation out of my participation (sic) in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., even if caused by their ordinary negligence. I understand that participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. involves certain risks including, but not limited to, serious injury, severe economic losses, permanent disability, and even death. I am voluntarily participating in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. with knowledge of the danger involved and agree to accept all risks of such participation. I certify that I am in excellent physical health, and may participate [**2] in strenuous and hazardous physical activities, including the flag football to be played in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. I agree that prior to participating, I will inspect the facilities and equipment to be used, and if I believe anything unsafe, I will immediately advise my coach of said condition(s) and refuse to participate. Permission is granted for me to receive medical treatment, if needed. I also agree to indemnify and hold harmless those listed above for all claims [*4] arising out of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and all related activities. I understand that this document is intended to be as broad and inclusive as permitted by the State of New York and agree that if any portion of this agreement is invalid, the remainder will continue in full legal force and effect. I further agree that any legal proceedings related to this waiver will take place in Suffolk County, New York. I am of legal age and am freely signing this agreement.

We have read this agreement and understand that by signing this form, we are giving up legal rights and remedies and that the terms of this release are binding on each one of us.

The defendants contend in their dismissal motion that the plaintiff assumed the risk of injury while playing in the game, and that by signing the Release, the plaintiff effectively released the defendants from liability for any injuries plaintiff allegedly sustained during the game. Defendants conclude, therefore, that they are entitled to dismissal of plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (5).

Generally, on a CPLR 3211 motion to dismiss, the court will accept the facts alleged in the complaint as true, accord plaintiffs the [*5] benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Walton v New York State Dept. of Corr. Services, 13 NY3d 475, 484, 921 N.E.2d 145, 893 NYS2d 453 [2009], quoting Nonnon v City of New York, 9 NY3d 825, 827, 874 N.E.2d 720, 842 NYS2d 756 [2007]). Pursuant to CPLR 3211(a)(1), a party may move for dismissal of one or more causes of action on the ground that “a defense is founded upon documentary evidence.” Likewise, a party may move for dismissal pursuant to CPLR 3211(a)(5) on the ground that “the cause of action may not be maintained because of … [a] release” of liability.

A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 842 N.E.2d 471, 808 NYS2d 573 [2005]; Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 774 N.E.2d 1190, 746 NYS2d 858 [2002]; Leon v Martinez, 84 NY2d 83, 638 N.E.2d 511, 614 NYS2d 972 [1994]; Thompsen v Baier, 84 AD3d 1062, 923 NYS2d 607 [2d Dept 2011]; Rietschel v Maimonides Medical Center, 83 AD3d 810, 921 NYS2d 290 [2d Dept 2011]). In other words, the documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of the plaintiff’s claim (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 921 NYS2d 260 [2d Dept 2011]; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520, 907 NYS2d 498 [2d Dept 2010]).

When a defendant moves for CPLR 3211(a)(1) dismissal based on documentary evidence that the plaintiff signed a release of liability in favor of the defendant, dismissal may be granted where the terms of the release are clear, unambiguous and conclusively dispose of the matter (see Burgos v New York Presbyterian Hosp., 155 AD3d 598, 2017 NY Slip Op 07585 [2d Dept 2017]; Rudovic v Rudovic, 131 AD3d 1225, 16 NYS3d 856 [2d Dept 2015]). In effect, a release is a contract and its construction [*6] is governed by contract law (see Outdoors Clothing Corp. v Schneider, 153 AD3d 717, 60 NYS3d 302 [2d Dept 2017]; Kaminsky v Gamache, 298 AD2d 361, 751 NYS2d 254 [2d Dept 2002]). Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced (see Sommer v Federal Signal Corp., 79 NY2d 540, 593 N.E.2d 1365, 583 NYS2d 957 [1992]; Deutsch v Woodridge Segway, LLC, 117 AD3d 776, 985 NYS2d 716 [2d Dept 2014]; Princetel, LLC v Buckley, 95 AD3d 855, 944 NYS2d 191 [2d Dept 2012]). A defendant establishes its prima facie entitlement to dismissal by producing the waiver and release signed by the plaintiff (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]).

If the language of a release is clear and unambiguous, the signing of a release is a “jural act” binding on the parties (see Booth v 3669 Delaware, Inc., 92 NY2d 934, 703 N.E.2d 757, 680 NYS2d 899 [2d Dept 1998]; Mangini v McClurg, 24 NY2d 556, 249 N.E.2d 386, 301 NYS2d 508 [1969]). The Court finds that the language of the subject Release is clear and unambiguous and is, therefore, valid, enforceable and binding on the parties (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Booth v 3669 Delaware, Inc., 92 NY2d 934, 703 N.E.2d 757, 680 NYS2d 899 [2d Dept 1998]). A release will not be treated lightly, and will not be set aside by a court without a showing of duress, illegality, fraud, or mutual mistake (see Liotti v Galasso, Langione and Botter, 128 AD3d 912, 8 NYS3d 578 [2d Dept 2015]; Seff v Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 AD3d 592, 865 NYS2d 323 [2d Dept 2008]; Shklovskiy v Khan, 273 AD2d 371, 709 NYS2d 208 [2d Dept 2000]; Delaney v County of Westchester, 90 AD2d 819, 455 NYS2d 839 [2d Dept 1982], appeal dismissed 59 NY2d 763 [1983]; Thives v Holmes Ambulance Service Corp., 78 AD2d 651, 432 NYS2d 235 [2d Dept 1980]). Plaintiff in this matter makes no claim of duress, illegality, fraud, or mutual mistake in the signing of the subject Release. Instead, plaintiff alleges in opposition to the motion that the Release is void as against pubic policy pursuant to GOL § 5-326, and that defendant is, therefore, barred from relying on the Release in seeking dismissal of plaintiff’s complaint. GOL § 5-326 renders void and unenforceable agreements that exempt certain [*7] places of public amusement, recreation and similar establishments from liability. In this regard GOL § 5-326 states:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to [**3] be void as against public policy and wholly unenforceable.

In general, when a participant pays a fee to use recreational facilities, or pays league fees and the league pays for use of those facilities, a waiver and release of liability signed by the participant is void pursuant to GOL § 5-326 (see Falzone v City of New York, 128 AD3d 889, 9 NYS3d 165 [2d Dept 2015]). To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5-326, there must be an evidentiary showing that the [*8] individual paid a fee for use of the facility (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]; Stone v Bridgehampton Race Circuit, 217 AD2d 541, 629 NYS2d 80 [2d Dept 1995]; Miranda v Hampton Auto Raceway, 130 AD2d 558, 515 NYS2d 291 [2d Dept 1987]).

A plaintiff’s complaint will be properly dismissed pursuant to CPLR 3211(a)(5) where the plaintiff claims that the Release is void pursuant to GOL §5-326, but fails to establish that he or she paid a fee directly to the owner or operator of the recreational facility for use of the facility where the alleged injury occurred (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]). When a plaintiff fails to produce any evidence that he or she paid a fee for admission to, or use of, a municipality’s field, GOL § 5-326 will not void a release of liability executed by the plaintiff prior to participating in a sporting event (see Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]). Under such circumstances, the plaintiff’s waiver of liability is enforceable and not void as against public policy in violation of GOL § 5-326 (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Lee v Boro Realty, LLC, 39 AD3d 715, 832 NYS2d 453 [2d Dept 2007]; Castellanos v Nassau/Suffolk Dek Hockey, 232 AD2d 354, 648 NYS2d 143 [2d Dept 1996]; Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]; Stone v Bridgehampton Race Circuit, 217 AD2d 541, 629 NYS2d 80 [2d Dept 1995]; Koster v Ketchum Communications, 204 AD2d 280, 611 NYS2d 298 [2d Dept 1994]).

Here, by producing the Waiver and Release signed by the plaintiff, the defendants established prima facie entitlement to dismissal of the plaintiff’s complaint (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]). In opposition, plaintiff has failed to show he paid to use the field where he was allegedly injured, or that any portion of his League fee was paid to the School District for the use of the field. In fact, the affidavit of the defendant League’s President, George Hignell, shows [*9] that the School District “did not require a fee for the use of its fields” and that “[n]either the plaintiff nor the [L]eague paid a fee for use of Newfield High School athletic field” where the plaintiff is alleged to have been injured. Therefore, the Release is not void as against public policy pursuant to GOL § 5-326.

Based upon the foregoing, the plaintiff’s complaint is dismissed pursuant to CPLR 3211(a)(1) and (a)(5) (see CPLR 3211[a][1]; CPLR 3211[a][5]; Burgos v New York Presbyterian Hosp., 155 AD3d 598, 2017 NY Slip Op 07585 [2d Dept 2017]; Rudovic v Rudovic, 131 A.D.3d 1225, 16 NYS3d 856 [2d Dept 2015] [**4] ; Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]).

This constitutes the Decision and Order of the Court.

Dated: December 11, 2017

PETER H. MAYER, J.S.C.


Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

Josephine Pittman, Plaintiff, v. Zoar Outdoor Adventure Resort, Inc., Defendant.

Civil Action No. 16-30182-MGM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2017 U.S. Dist. LEXIS 107839

June 9, 2017, Decided

June 9, 2017, Filed

SUBSEQUENT HISTORY: Adopted by, Motion denied by Pittman v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 106873 (D. Mass., July 11, 2017)

COUNSEL: [*1] For Josephine Pittman, Plaintiff, Counter Defendant: Timothy L. O’Keefe, LEAD ATTORNEY, Brittani K. Morgan, Kenny, O’Keefe & Usseglio, P.C., Hartford, CT; Timothy P. Wickstrom, Wickstrom Morse, LLP, Whitinsville, MA.

For Zoar Outdoor Adventure Resort, Inc., Defendant, Counter Claimant: Thomas B. Farrey, III, LEAD ATTORNEY, Burns & Farrey, Worcester, MA; Michael W. Garland, Burns & Farrey, P.C., Worcester, MA.

For Zoar Outdoor Adventure Resort, Inc., Counter Claimant: Thomas B. Farrey, III, LEAD ATTORNEY, Burns & Farrey, Worcester, MA.

For Josephine Pittman, Counter Defendant: Timothy L. O’Keefe, LEAD ATTORNEY, Brittani K. Morgan, Kenny, O’Keefe & Usseglio, P.C., Hartford, CT.

JUDGES: KATHERINE A. ROBERTSON, United States Magistrate Judge.

OPINION BY: KATHERINE A. ROBERTSON

OPINION

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION TO DISMISS COUNTERLCLAIM FOR IMPROPER VENUE

(Dkt. No. 11)

ROBERTSON, U.S.M.J.

I. Introduction

On or around October 19, 2016, plaintiff Josephine Pittman (“Plaintiff”) filed a complaint in the Trial Court of the Commonwealth of Massachusetts, Superior Court Department, Franklin County (Dkt. No. 1-1). In summary, the complaint alleged that Plaintiff suffered serious injuries as a participant in a zip [*2] line canopy tour on the premises of defendant Zoar Outdoor Adventure Resort, Inc. (“Defendant”). Defendant removed the case to this court pursuant to 28 U.S.C. § 1441(a), which provides for removal of actions where the parties are diverse (Dkt. No. 1). In this court, Defendant answered the complaint and asserted a counterclaim against Plaintiff for fees and costs (Dkt. No. 3). Presently before the court is Plaintiff’s Motion to Dismiss Counterclaim for Improper Venue (“Plaintiff’s Motion to Dismiss”), which was referred to the undersigned for Report and Recommendation by the presiding District Judge (Dkt. No. 27). For the reasons set forth below, the court recommends that Plaintiff’s Motion to Dismiss be denied.

II. Relevant background

Plaintiff’s initial complaint (“Complaint”) asserted claims of gross negligence (Count I) and fraudulent inducement concerning a participant agreement and waiver of liability (“Participant Agreement”) signed by Plaintiff as a condition of her participation in the zip lining activity (Count II) (Dkt. No. 1-1).1 In its response to the Complaint, Defendant asserted a counterclaim for contractual indemnification based on the contents of the Participation Agreement signed by Plaintiff. [*3] 2 Defendant attached a copy of the Participant Agreement as Exhibit A to Defendant’s Answer to Plaintiff’s Complaint, Counterclaim and Claim for Jury Trial (Dkt. No. 3).

1 With leave of court, Plaintiff filed an amended complaint on June 5, 2017 (“Amended Complaint”), adding a claim of ordinary negligence and claims of loss of consortium on behalf of her husband, Ronald Pittman, and her daughter, Lillian Pittman (Dkt. No. 34).

2 The formal title of the document is “Participant Agreement, Release and Acknowledgement of Risk.”

In relevant part, the Participant Agreement provides as follows:

2. I expressly agree to and promise to accept and assume all of the risks existing in this activity [expressly including zip line canopy tours]. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Zoar from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of Zoar’s equipment, vehicles, facilities, or premises before, during, and after this activity including any such claims which allege negligent acts or omissions of Zoar.

4. Should Zoar or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.

. . .

6. In the event that I file a lawsuit against Zoar, I agree the Venue of any dispute that may arise out of this agreement [*4] or otherwise between the parties to which Zoar or its agents is a party shall be either in the town of Charlemont, Massachusetts Justice Court or the County or State Supreme Court in Franklin County, Massachusetts. I further agree that the substantive law of Massachusetts shall apply in that action without regard to the conflict of law rules of that state.3

(Dkt. No. 3-1 at 2).

3 The court takes judicial notice of the fact that a “town of Charlemont Justice Court” does not exist in Charlemont, Massachusetts. The parties agreed at oral argument that the Superior Court in Franklin County is the venue designated by the forum selection clause.

Plaintiff’s Motion to Dismiss is based solely on the forum selection clause in paragraph 6 of the Participant Agreement (Dkt. No. 11).

III. Standard of Review and Applicable Law

In this circuit, a motion to dismiss based on a forum selection clause is treated “as a motion alleging the failure to state a claim for which relief can be granted under Rule 12(b)(6).” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (citing Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 387 & n.3 (1st Cir. 2001)). This court “must ‘accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the [counterclaim] plaintiff’s favor, and determine whether the [counterclaim], so read, limns facts sufficient to justify recovery on any cognizable theory.'” Id. (quoting LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998)). A court considering a motion to dismiss “may properly consider only facts and documents that are part of or incorporated into the complaint.” Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008). In the present [*5] action, Defendant has attached the Participant Agreement in support of its counterclaim, and neither party disputes the authenticity of the document. Accordingly, in ruling on Plaintiff’s Motion to Dismiss, the court may appropriately take into account the contents of the Participant Agreement, including the choice of forum provision which is the basis of that motion. See Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (document sufficiently referred to in the complaint, the authenticity of which is not disputed, properly may be considered on a 12(b)(6) motion).

It remains an unsettled question in this circuit whether “‘forum selection clauses are to be treated as substantive or procedural for Erie purposes.'” Rivera, 575 F.3d at 16 (quoting Lambert v. Kysar, 983 F.2d 1110, 1116 & n.10 (1st Cir. 1993)). This is a question that the court need not address. See id. The forum selection clause in the Participant Agreement provides that Massachusetts law shall apply to legal actions arising out of the agreement or otherwise between the parties (Dkt. No. 35-1 at 1, ¶ 6). This court should, therefore, look to Massachusetts law for principles bearing on interpretation of the Participant Agreement. That said, there is no conflict between federal common law and Massachusetts law regarding the enforceability and interpretation [*6] of forum selection clauses. See generally Boland v. George S. May Int’l Co., 81 Mass. App. Ct. 817, 969 N.E.2d 166, 169-74 (Mass. App. Ct. 2012) (relying on federal and Massachusetts law for purposes of interpreting a forum selection clause). Accordingly, it is also appropriate for this court to apply federal common law in ruling on the enforceability and interpretation of the Participant Agreement’s forum selection clause. See Rivera, 575 F.3d at 16-17; see also OsComp Sys., Inc. v. Bakken Express, LLC, 930 F. Supp. 2d 261, 268 n.3 (D. Mass. 2013) (relying on federal common law where the parties did so; noting that there do not appear to be material discrepancies between federal and Massachusetts law regarding the validity and interpretation of forum selection clauses); Summa Humma Enters., LLC v. Fisher Eng’g, Civil No. 12-cv-367-LM, 2013 U.S. Dist. LEXIS 856, 2013 WL 57042, at *3 (D. Me. Jan. 3, 2013) (court would apply Maine law to interpretation of forum selection clauses; because Maine law was co-extensive with federal law concerning the interpretation of a forum selection clause, the court would also apply federal common law to the interpretive task).

IV. Analysis

Notwithstanding citations to cases ruling that forum selection clauses can constitute a waiver of a defendant’s right to remove a case to federal court, Plaintiff has not moved for dismissal or remand of this case to the state court where it was filed. Rather, Plaintiff’s Motion to Dismiss is limited [*7] to seeking dismissal of Defendant’s counterclaim. On this point, Plaintiff contends that this court is an improper venue for a counterclaim alleging contractual indemnity because the claim is a dispute between the parties that arises out of the Participant Agreement. Plaintiff notes that, in setting forth the designated venue, the forum selection clause uses the word “shall,” which, Plaintiff argues, connotes a mandatory choice of venue which is binding on Defendant (Dkt. No. 12). Defendant opposes Plaintiff’s Motion to Dismiss on the ground that the forum selection clause was binding on Plaintiff, but by its terms, did not constrain Defendant’s choice of venue for any claims it had against Plaintiff arising from the Participant Agreement (Dkt. No. 15). In the court’s view, Defendant has the better of the arguments.

Forum selection clauses “‘are prima facie valid and should be enforced.'” Silva, 239 F.3d at 386 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). “A forum selection clause ‘does not divest a court of [the] jurisdiction it otherwise retains, rather it constitutes a stipulation in which the parties join in asking the court to give effect to their agreement by declining to exercise jurisdiction.'” Provanzano v. Parker View Farm, Inc., 827 F. Supp. 2d 53, 58 (D. Mass. 2011) (quoting Silva, 239 F.3d at 389 n.6). Before giving effect to [*8] a forum selection clause, a court must address certain threshold issues, including whether: (1) the clause is mandatory or permissive; and (2) the clause governs the claims allegedly subject to it. See id.

1. The Forum Selection Clause is Mandatory as to Claims to Which it Applies

“‘Permissive forum selection clauses, often described as “consent to jurisdiction” clauses, authorize jurisdiction and venue in a designated forum, but do not prohibit litigation elsewhere. . . . In contrast, mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum.'” Rivera, 575 F.3d at 17 (quoting 14D C.A. Wright, A.R. Miller & E.H. Cooper, Federal Practice and Procedure § 3803.1 (3d ed. 1998)). “The use of words such as ‘will’ or ‘shall’ demonstrate parties’ exclusive commitment to the named forum.” Provanzano, 827 F. Supp. 2d at 60 (citing Summit Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9, 12 (1st Cir. 2001)). Moreover, “[a] crucial distinction between mandatory and permissive clauses is whether the clause only mentions jurisdiction or specifically refers to venue.” Arguss Communs. Group, Inc. v. Teletron, Inc., No. CIV. 99-257-JD, 1999 U.S. Dist. LEXIS 18085, 2000 WL 36936, at *7 (D.N.H. Nov. 19, 1999). In the present case, “[b]ecause the [Participant] Agreement uses the term ‘shall’ to describe . . . the commitment to resolving . . . [certain] litigation [*9] ‘in [either the town of Charlemont, Massachusetts Justice Court or the County or State Supreme Court in Franklin County, Massachusetts,’] [and because it refers to ‘venue,’ not just ‘jurisdiction,’] it is a mandatory clause.” Xiao Wei Yang Catering Linkage in Inner Mongolia Co., LTD v. Inner Mongolia Xiao Wei Yang USA, Inc., 150 F. Supp. 3d 71, 77 (D. Mass. 2015). Indeed, the parties do not appear to dispute that the forum selection clause in the Participant Agreement is mandatory as to claims to which it applies.

2. The Forum Selection Clause Does Not Apply to Defendant’s Counterclaim

Whether to enforce a forum selection clause depends on whether the clause governs the claims asserted in the lawsuit. See Provanzano, 827 F. Supp. 2d at 60 (citing Huffington v. T.C. Grp., LLC, 637 F.3d 18, 21 (1st Cir. 2011)); see also Pacheco v. St. Luke’s Emergency Assocs., P.C., 879 F. Supp. 2d 136, 140 (D. Mass. 2012). This is a matter of interpreting the terms of the contract between the parties. “The construction of a written contract which is plain in its terms and free from ambiguity presents a question of law for the court,'” Boland, 969 N.E.2d at 173 (quoting Hiller v. Submarine Signal Co., 325 Mass. 546, 91 N.E.2d 667, 669 (Mass. 1950)), and it is “‘the language of the forum selection clause itself that determines which claims fall within its scope.'” Pacheco, 879 F. Supp. 2d at 140 (quoting Rivera, 575 F.3d at 19).

In the present case, the plain language of the forum selection clause mandated venue in the Franklin County Superior Court, but only as to claims asserted by Plaintiff. Plaintiff’s contention that the forum selection clause is binding on Defendant ignores the qualifying introductory clause of the provision, which states [*10] that “[i]n the event [Plaintiff] file[s] a lawsuit against Zoar, [Plaintiff] agree[s]” to the venue specified in paragraph 6 of the Participant Agreement (Dkt No. 3-1 at 2). In this case, as in Rivera, the mandatory venue language “is preceded and informed by a qualifying phrase: ‘In the event that . . . [I file suit against Zoar] . . ., I . . . agree [the Venue] . . . .’ That is, the [Participant Agreement] required [Plaintiff] to assert any causes of action that [she] may have against [Defendant] in the [Franklin County Superior Court].” Rivera, 575 F.3d at 18. There is no comparable venue provision, nor is there any mandatory or restrictive language, in paragraph 4 related to an assertion by Defendant of a claim for recovery of attorney’s fees and costs (Dkt. No. 3-1 at 2). Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement. See Pacheco, 879 F. Supp. 2d at 140; Boland, 969 N.E.2d at 174; cf. Xiao Wei Catering Linkage, 150 F. Supp. 3d at 77 (satisfaction of condition precedent was required to trigger application of a forum selection clause).

Furthermore, because [*11] Plaintiff has not moved for remand and intends to prosecute her claims against Defendant in this court, it would be a waste of judicial resources to require Defendant to seek recovery of fees and costs in a separate state court action. In Count II of Plaintiff’s Complaint (and her amended complaint), she has alleged that she was fraudulently induced to sign the Participant Agreement. “It is black-letter law that an agreement . . . is voidable by a party who is fraudulently induced to enter into it.” Green v. Harvard Vanguard Med. Assocs., Inc., 79 Mass. App. Ct. 1, 944 N.E.2d 184, 193 (Mass. App. Ct. 2011); see also St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 879 N.E.2d 27, 35 (Mass. 2008) (a party is not bound by a contract she was fraudulently induced to sign). To prevail on the claim of ordinary negligence alleged in the Amended Complaint, Plaintiff will be required to prove that she was fraudulently induced to sign the Participant Agreement. See Lee v. Allied Sports Assocs., 349 Mass. 544, 209 N.E.2d 329, 332-33 (Mass. 1965). If she succeeds in meeting her burden of proof on this point, she will not be bound by the terms of the Participant Agreement, which is the sole basis for Defendant’s counterclaim for fees and costs. Thus, Plaintiff’s claims and Defendant’s counterclaim “involve a common nucleus of operative fact [and] all claims should be adjudicated together in this court.” Pacheco, 879 F. Supp. 2d at 138.

V. Conclusion

For these reasons, it is this court’s RECOMMENDATION [*12] that Plaintiff’s Motion be DENIED.4

4 The parties are advised that under the provisions of Fed. R. Civ. P. 72(b) or Fed. R. Crim. P. 59(b), any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within fourteen (14) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of HHS, 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof.

/s/ Katherine A. Robertson

KATHERINE A. ROBERTSON

United States Magistrate Judge

DATED: June 9, 2017


More than allegations and plaintiff’s testimony to sustain a motion for summary judgment for a binding defect in West Virginia

Failure of the plaintiff to keep the broken binding or have any other proof the binding broke would have changed the outcome of the case.

Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

State: West Virginia

Plaintiff: Daniel Mrotek

Defendant: Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Appellees, and Elk Mountain Outfitters, Inc., v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc.

Plaintiff Claims: negligence and product liability

Defendant Defenses: Plaintiff did not produce any evidence of negligence on the part of the defendant. Alternatively, the court found that plaintiff signed a valid release.

Year: 2003

Holding: for the defendant

The plaintiff from Florida with a group of friends went to Snowshoe Ski Area in West Virginia for four days of skiing. He first rented skis from the defendant. While renting he signed a release.

While skiing he fell. He claimed the toe piece of one of the bindings came off. Both the plaintiff and one of his friends testified they through the toe piece away.

The plaintiff exchanged the skis for another pair with the defendant. The defendant testified the skis were in good condition and rented out the next day. The plaintiff did not report the ski binding failed nor did he report an accident to anyone.

Upon the plaintiff’s return to Florida, he was suffering head aches and blurred vision. He eventually needed four surgeries and had a permanent shunt placed in his head.

The plaintiff sued the defendant rental business. The rental business filed claims against the ski and binding manufacturer as third party defendants. The trial court, called a Circuit Court in West Virginia dismissed the claims of the plaintiff against the defendant. By doing so the third party claims are also dismissed against the third party defendants. The plaintiff appealed.

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

The basis of the court’s ruling in favor of the defendant was the plaintiff “failed to identify any act or omission allegedly committed by EMO, which in any way caused or contributed to the alleged skiing accident.” In a negligence claim, the negligence must be proved, it cannot be imputed or presumed.  

Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”

After examining all the evidence the court found” The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing.”

The defendant had no evidence of a broken ski or binding. The plaintiff had not told the defendant the binding was broken and had not registered a claim. No third party saw the broken binding other than the friend who testified it had been thrown away.

The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.

In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case.

So Now What?

This case would have been totally different if the plaintiff had kept the toe piece, photographed it or pointed out the problem to a third party or the defendant; anything to support his claim other than his statements.

The main reason for this statement is releases in West Virginia have been disfavored whenever they reach the West Virginia Supreme Court. (See States that do not Support the Use of a Release.)

The defendant did the correct thing by following the protocol set up by the ski rental industry. The ski was examined, and nothing was found to be defective so the ski and binding were rented out the next day. If necessary, the defendant could have brought in the rental receipts showing the ski and bindings had been rented and how often after the plaintiff’s incident.

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Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

Daniel Mrotek, an Individual, Plaintiff Below, Appellant, v. Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Defendants below, Appellees, and Elk Mountain Outfitters, Inc., A Corporation, Defendant/Third-Party Plaintiff Below, Appellees, v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc., Third-Party Defendants Below, Appellees.

No. 31395

SUPREME COURT OF APPEALS OF WEST VIRGINIA

214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

November 18, 2003, Submitted

December 3, 2003, Filed

PRIOR HISTORY: [***1] Appeal from the Circuit Court of Pocahontas County. Honorable James J. Rowe, Judge. Civil Action No. 99-C-37.

DISPOSITION: AFFIRMED.

SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

2. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus point 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

COUNSEL: Larry E. Losch, William A. McCourt, Jr., Summersville, West Virginia, Attorneys for Appellant.

William J. Hanna, Robert P. Lorea, Flaherty, Sensabaugh & Bonasso, Charleston, West Virginia, Attorneys for Appellee, Elk Mountain Outfitters, Inc.

Rob J. Aliff, Jackson & Kelly, Charleston, West Virginia, Attorney for Appellee, Skis Dynastar.

Robert M. Steptoe, Jr. [***2] , Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for Appellee, Adidas American, Inc.

M. Hance Price, Steptoe & Johnson, Martinsburg, West Virginia, Attorney for Adidas American, Inc.

OPINION

[*491] [**684] Per Curiam:

This appeal was filed by Daniel Mrotek, appellant/plaintiff below (hereinafter referred to as “Mr. Mrotek”), from an order of the Circuit Court of Pocahontas County granting summary judgment in favor of Coal River Canoe, Ltd., d/b/a Elk Mountain Outfitters, Inc. (hereinafter referred to as “EMO”), appellee/defendant below. Mr. Mrotek filed an action against EMO alleging that he sustained injuries as a result of his use of an allegedly defective ski that he rented from EMO. The circuit court granted summary judgment on two alternative grounds. The circuit court found that Mr. Mrotek did not produce any evidence of negligence on the part of EMO. Alternatively, the court found that Mr. Mrotek signed a valid release of his right to sue EMO for any injury caused by its equipment. In this appeal, Mr. Mrotek contends that genuine issues of material fact are in dispute as to whether EMO supplied him with a defective ski and that the release from liability he signed was unenforceable. [***3] Upon review of the briefs and record in this case, we affirm.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Mrotek is a resident of Florida. On December 28, 1997, Mr. Mrotek and a group of seven friends came to Snowshoe, West Virginia, for a four day skiing vacation. Upon their arrival, Mr. Mrotek and some of his companions rented skiing equipment from EMO. As part of the rental transaction, EMO required all customers to read and execute a document releasing EMO from any harm caused by its equipment. Mr. Mrotek signed the release.

Shortly after renting the ski equipment, Mr. Mrotek and his companions ventured off to engage in night skiing. During the first run of the evening Mr. Mrotek fell and apparently hit his head. A skiing companion, Herman Serpa, saw Mr. Mrotek fall and came to his aid. Mr. Serpa states that he noticed that a toe binding on Mr. Mrotek’s right ski was missing. Mr. Serpa states that he found the toe binding with three rusty screws protruding from it. The toe binding was allegedly thrown away by either Mr. Serpa or Mr. Mrotek. However, neither man appears to have recalled who threw away the toe binding.

Mr. Serpa allegedly returned the defective ski and received [***4] a replacement. Mr. Mrotek did not report the incident to EMO even though, as a result of the fall, he allegedly “became very dizzy, sick at his stomach with vomiting along with severe headaches.”

Upon returning to Florida, Mr. Mrotek sought medical treatment for blurred vision, nausea and exhaustion. A medical examination revealed Mr. Mrotek suffered from Papilledema, i.e., fluid on the brain caused by a damaged ventricle. On February 16, 1998, Mr. Mrotek underwent surgery to place a shunt in his skull to drain the excess fluid. Due to complications, Mr. Mrotek eventually underwent three more surgeries. Although Mr. Mrotek has recovered from the problems caused by the excess fluid, he must permanently have “a small tube running underneath his skin from his brain down his neck and into his heart to maintain the pressure and stability inside his skull.”

Mr. Mrotek filed this action against EMO [**685] [*492] in 1999, 1 alleging EMO supplied him with a defective ski which caused him to fall and sustain a head injury. 2 After a period of discovery, EMO moved for summary judgment. By order entered June 17, 2002, the circuit court granted summary judgment in favor of EMO. 3 This appeal is a result [***5] of the circuit court’s ruling.

1 The record submitted on appeal is extremely sparse and does not contain the pleadings.

2 EMO filed a third-party complaint against the suppliers of the ski, Skis Dynastar, Inc. and Salomon North American, Inc., for indemnity or contribution.

3 The circuit court’s order also dismissed EMO’s third-party complaint.

II.

STANDARD OF REVIEW

The standard for our review of an order granting summary judgment is well established. [HN1] “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Insofar as “‘appellate review of an entry of summary judgment is plenary, this Court, like the circuit court, must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.'” Provident Life and Accident Ins. Co. v. Bennett, 199 W. Va. 236, 238, 483 S.E.2d 819, 821 (1997) (quoting [***6] Asaad v. Res-Care, Inc., 197 W. Va. 684, 687, 478 S.E.2d 357, 360 (1996)). We have made clear that [HN2] “summary judgment is appropriate [only] 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.'” Pritt v. Republican Nat’l Comm., 210 W. Va. 446, 452, 557 S.E.2d 853, 859 (2001) (quoting W. Va.R. Civ. P. 56(c)). Further, [HN3] “summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syl. pt. 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). With these standards as our guide, we now address the issues asserted on appeal.

III.

DISCUSSION

The dispositive issue in this case is the determination by the circuit court that Mr. Mrotek “failed to identify any act or omission allegedly committed by EMO which in any way caused or contributed to the alleged skiing accident.” [HN4] This Court has observed that “it is an elementary principle [***7] of law that negligence will not be imputed or presumed. The bare fact of an injury standing alone, without supporting evidence, is not sufficient to justify an inference of negligence.” Walton v. Given, 158 W. Va. 897, 902, 215 S.E.2d 647, 651 (1975). 4 Moreover, [HN5] “negligence . . . is a jury question when the evidence is conflicting or the facts are such that reasonable men may draw different conclusions from them.” Burgess v. Jefferson, 162 W. Va. 1, 3, 245 S.E.2d 626, 628 (1978).

4 Mr. Mrotek contends that the doctrine of res ipsa loquitur should be applied to the facts of this case to overcome summary judgment. [HN6] “Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Syl. pt. 4, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997). Clearly, under the Foster formulation of [HN7] res ipsa loquitur, the doctrine simply has no application to falling while skiing–which is an extremely frequent incident that can occur without any negligence. See Syl. pt. 2, Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991) [HN8] (“The doctrine of res ipsa loquitur cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed, or when it may be inferred that there was no negligence on the part of the defendant. The doctrine applies only in cases where defendant’s negligence is the only inference that can reasonably and legitimately be drawn from the circumstances.”).

[***8] The primary evidence relied upon by Mr. Mrotek was the deposition [**686] testimony of Mr. Serpa. Mr. Mrotek presented the deposition [*493] testimony of Mr. Serpa to show that the toe binding on the right ski came loose. Mr. Serpa testified that he found a piece of the binding with three rusty screws protruding from it. There was also testimony by Mr. Serpa that he returned the defective ski to EMO and was given a replacement. There was also evidence to show that the skis rented by Mr. Mrotek were not tested for weakness by EMO prior to 1997-98 ski season.

EMO took the position that nothing happened to the skis that were rented to Mr. Mrotek. According to EMO’s records the skis rented to Mr. Mrotek were returned in good condition and were rented out again the day after Mr. Mrotek returned them. EMO presented an affidavit from its management employee, Charlie McDaniels. Mr. McDaniels indicated that the bindings used on the skis rented by EMO were made of aluminum or were galvanized and would not rust.

In looking at the evidence in the light most favorable to Mr. Mrotek, we do not find a material issue of fact in dispute. EMO presented evidence to establish that no defect existed in the skis rented [***9] to Mr. Mrotek. In fact, there was evidence that Mr. Mrotek examined the skis before renting them and found nothing wrong. EMO also established that they had no record to show that Mr. Serpa or Mr. Mrotek turned in a broken ski. Mr. Mrotek presented bare testimonial evidence to show that a toe binding broke loose from the right ski. No actual evidence was introduced showing the defective ski or the parts that were allegedly broken from the ski. See Williams v. Precision Coil, Inc., 194 W. Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995) [HN9] (“Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”). The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing. [HN10] The mere fact of falling while skiing is not actionable negligence. See Painter v. Peavy, 192 W. Va. 189, 192-93, 451 S.E.2d 755, 758-59 (1994) [HN11] (“The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.”); Syl. pt.1, in part, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981) [***10] [HN12] (“In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case. 5

5 Because we affirm the circuit court’s initial reason for granting summary judgment, we need not address the issue involving the release signed by Mr. Mrotek.

IV.

CONCLUSION

In view of the foregoing, the circuit court’s order granting summary judgment in favor of EMO is affirmed.

Affirmed.