Whitewater rafting case where one of the claims is the employer should have provided eye protecting during the rafting trip.Posted: February 4, 2019
Plaintiff was injured during a corporate team building exercise when she ended up with a small rock in her eye after the whitewater rafting trip.
State: Florida, United States District Court for the Middle District of Florida, Tampa Division
Plaintiff: Carmen Elena Monteilh Chavarria
Defendant: Intergro, Inc., Timothy Dolan, Felix Renta
Plaintiff Claims: negligence, for intentional infliction of emotional distress, and for breach of contract
Holding: Mostly for the Defendants
A whitewater rafting trip in Honduras booked as a team-building event ended up in litigation in the US. The allegations were the corporation that booked the team building for its employees failed to provide the necessary safety equipment for whitewater rafting.
The allegations may be taken to allege there is a higher duty owed to employees of a corporation partaking in a sport or recreation event then to other participants. The duty of the raft company appears to remain the same. Only employers are argued to have a requirement of higher standards of care.
Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. The plaintiff alleges that both Intergro and Seproma3 “conduct-ed” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”
After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye.
Analysis: making sense of the law based on these facts.
There were legal discussions about what law applied and other items that won’t be discussed here. It is unclear how a Honduran corporation, and a raft trip in Honduras ended up in a Florida Federal District Court.
The court was succinct in its analysis of the law and facts. The plaintiff argued the defendants were negligent.
To state a claim for negligence, a plaintiff must allege that the defendant owed the plain-tiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage.
According to the plaintiff, there was a duty of the employer, Integro not to select the rafting event and to: “provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.”
The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; that the breach caused her injury; and that she has suffered actual damages as a result of the defend-ants’ negligence. The plaintiff states a claim for negligence.
The next argument made by the plaintiff was a claim for intentional infliction of emotional distress.
To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. The standard for outrageous conduct is distinctly high
The court dismissed this claim finding the plaintiff failed to allege any instances of outrageous, extreme or atrocious conduct.
The plaintiff also sued for breach of contract. “To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach.”
The court dismissed the breach of contract claims against the individual defendants and granted the plaintiff’s motion to amend her complaint against the corporate defendant to clarify or restate her breach of contract claim.
So Now What?
Simple case, right? Well maybe. In the negligence complaint which survived the motion to dismiss, the plaintiff’s allegations stated:
The plaintiff alleges that both Intergro and Seproma “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”
Two issues surface here. The first is the allegation that white-water rafting requires you to have eye protection. However, the second has possibly greater results. The complaint of not providing enough safety gear is not against the raft company, but against the plaintiff’s employer who booked the trip. The allegation is the employer who booked the trip had a duty to provide proper gear for the trip.
This shifts the burden away from the people who understand the risks, rafting companies, to people who do not understand the risks, companies, churches, groups that book raft trips. Every raft company might be able to argue successfully, that the standards in the industry are to provide a PFD.
However, the company will have to rely on the industry standards of whitewater rafting (or any other sport or recreational activity) but then check to see if there is a higher standard of care owed to employees.
Here the plaintiff seemed to lose most of here employment law claims. The decision indicates she was denied worker’s compensation for her injuries. However, if the activity was argued to be part of her employment, then this may create a greater duty and a greater reluctance on the part of corporations to do team building events.
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Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631
Carmen Elena Monteilh Chavarria, Plaintiff, v. Intergro, Inc., et al., Defendants.
CASE NO. 8:17-cv-2229-T-23AEP
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION
2018 U.S. Dist. LEXIS 117631
July 16, 2018, Decided
July 16, 2018, Filed
COUNSEL: [*1] For Carmen Elena Monteilh Chavarria, Plaintiff: Carlos A. Leyva, LEAD ATTORNEY, Digital Business Law Group, P.A., Palm Harbor, FL; Linda Susan McAleer, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Linda S. McAleer, San Diego, CA.
For Intergro, Inc., Timothy Dolan, Felix Renta, Defendants: Catherine M. DiPaolo, Richard M. Hanchett, LEAD ATTORNEYS, Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, Tampa, FL.
JUDGES: STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
OPINION BY: STEVEN D. MERRYDAY
On September 25, 2017, the plaintiff sued (Doc. 1) the defendants for negligence, for intentional infliction of emotional distress, and for breach of contract. Asserting the same claims, the plaintiff amended (Doc. 15) her complaint on October 25, 2017. On November 8, 2017, the defendants moved (Doc. 19) to dismiss the amended complaint,1 and on April 28, 2018, the plaintiff moved (Doc. 39) — for the first time — for an order determining that Honduran law governs the claims in this action.2
1 “Defendants’ motion to dismiss amended complaint, alternative motion to strike certain allegations and the affidavit of attorney Carlos A. Leyva, and alternative notice of objection to testimony of Carlos A. Leyva.” (Doc. 19)
2 Also, the plaintiff moves “for partial summary judgment as to liability only, pursuant to [the] breach of contract claim.” (Doc. 43 at 1)
By failing to timely assert the claim, a party waives the application of foreign law. Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1257 (11th Cir. 2006); Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (holding that the plaintiff “explicitly submitted to Illinois [not Virginia] law and relied solely on it, and having done so, the district [*2] court was right to apply it to the dispute. . . . The principle of waiver is designed to prohibit this very type of gamesmanship — [the plaintiff] is not entitled to get a free peek at how his dispute will shake out under Illinois law and, when things don’t go his way, ask for a mulligan under the laws of a different jurisdiction.”); Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995) (holding that choice of law is “normally waivable”); Anderson v. McAllister Towing and Transp. Co., 17 F. Supp. 2d 1280, 1286 n.6 (S.D. Ala. 1998) (Volmer, J.) (holding that the defendant waived the right to have Saudi Arabian law applied to a contractual dispute because the defendant failed to give reasonable notice of its intent to assert that foreign law applied). “The failure to give proper notice of the applicability of foreign law does not warrant dismissal . . . . It is more likely that a failure to give reasonable notice will result in a waiver of the applicability of foreign law to the case.” Moore’s Federal Practice, Vol. 9, § 44.1.03 (3d ed. 2016).
In both the complaint and the amended complaint, the plaintiff asserts emphatically (and highlights in bold) that each claim is brought under Florida common law. The plaintiff’s response to the motion to dismiss is based entirely on Florida law. Seven months elapsed between the day the plaintiff sued [*3] and the day the plaintiff moved for “choice of law.” Because the plaintiff failed to give timely notice of the claimed applicability of foreign law, she has waived her right to assert that Honduran law governs her claims.
Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. (Doc. 15 at 4) The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. (Doc. 15 at 4) The plaintiff alleges that both Intergro and Seproma3 “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.” (Doc. 15 at 5)
3 Seproma, a subsidiary of Intergro, is not a party to this action.
After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. (Doc. 15 at 6) Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two [*4] further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye. (Doc. 15 at 6)
To state a claim for negligence, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). The plaintiff alleges that Integro owed her a duty “not to select” the rafting event in which she was injured and a duty to provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.” (Doc. 15 at 8) The defendants argue (1) that the plaintiff fails to allege sufficiently that the defendants knew that the rafting event posed an unreasonable risk of harm and (2) that, even if the plaintiff had alleged a duty of care owed by Intergro to the plaintiff, she fails to allege any individual duty owed by Dolan or Renta.
The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; [*5] that the breach caused her injury; and that she has suffered actual damages as a result of the defendants’ negligence. The plaintiff states a claim for negligence.
Intentional infliction of emotional distress
To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009) The standard for outrageous conduct is distinctly high. Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985) (“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”). Whether a person’s alleged conduct is sufficiently outrageous or intolerable is a matter of law. De La Campa v. Grifols America, Inc., 819 So. 2d 940 (Fla. 3d DCA 2002).
The plaintiff alleges (1) that the “[d]efendants understood that their collective refusal to compensate Plaintiff for work related injurious activities, including lost wages and medical care, would cause emotional anxiety and distress to a single working mother of three children” (Doc. 15 at 7) and (2) that the defendants’ “intentional refusal to pay Plaintiff’s lost [*6] wages, medical expenses, and other benefits as required by Honduran law . . . caused Plaintiff emotional distress” (Doc. 15 at 9). The plaintiff fails to allege a single instance of “outrageous,” “extreme,” and “atrocious” conduct. Count II is dismissed for failing to state a claim.
Breach of contract
The plaintiff sues for breach of contract “pursuant to non-payment of employment termination benefits.” (Doc. 15 at 1) To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009).
The amended complaint fails to identify an unfulfilled contractual obligation. Instead, the plaintiff claims entitlement to payment of benefits under Honduran law but fails to identify the law or the benefits to which she is entitled. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is granted. In amending Count III to provide a more definite statement of the claim against Intergro for breach of contract, the plaintiff must clarify the allegation that “Intergro breached the Contract by failing to pay Plaintiff the benefits that were due under same pursuant to [*7] Honduran law.” (Doc. 15 at 10) Ambiguity exists as to whether Honduran law or the contract governs the obligation to pay, whether Honduran law or the contract governs the amount of the required payment, or to whether and to what extent Honduran law and the contract otherwise control the obligation to pay and the amount of the payment. The amended complaint must clarify the plaintiff’s claim in this respect, among others.
Dolan and Renta
The plaintiff fails to state a claim against either Dolan or Renta. In Count III, the plaintiff alleges that the plaintiff’s “employment with Intergro was controlled by a binding contract” and that Intergro breached the contract “by failing to pay Plaintiff the benefits that were due under same pursuant to Honduran law.” (Doc. 15 at 9-10) But in the prayer for relief, the plaintiff (who purportedly contracted only with Intergro) prays for judgment against all defendants “for the full amount of contractual benefits due under Honduran law.” (Doc. 15 at 10) The complaint lacks an allegation that Dolan and Renta are parties to the contract. Count III fails to state a claim against Dolan and Renta.
Motion to strike
The defendant moves (Doc. 19) under Rule 12(f), Federal Rules of Civil Procedure, to strike [*8] the allegations in paragraphs 7, 8, 14, 31, 32, 35, and 37 of the amended complaint and moves to strike the affidavit of Carlos A. Leyva (Doc. 15-1). Under Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “A motion to strike is a drastic remedy” and “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Augustus v. Board of Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962). “An allegation is ‘impertinent’ or ‘immaterial’ when it is neither responsive nor relevant to the issues involved in the action. . . . ‘Scandalous’ generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Moore’s Federal Practice, Vol. 2, s 12.37 (3d ed. 2016). The defendant fails to identify and describe why the allegations are immaterial, irrelevant, and scandalous, and the plaintiff argues plausibly that the allegations are “related” to the controversy, are material, and are pertinent.
The defendant argues that Carlos Leyva’s affidavit contains allegations that have “no relation to [*9] this controversy and cause prejudice to Defendants because they are inadmissible hearsay.” (Doc. 19 at 12) The plaintiff responds that the “[d]efendants . . . conflate what is required for summary judgment with what is required in the pleadings. . . . The evidentiary burden that Defendants assume . . . does not exist at this stage in the proceedings.” (Doc. 21 at 16) For the reasons stated by the plaintiff, the defendants’ motion to strike Carlos Leyva’s affidavit is denied.
The defendant’s motion (Doc. 19) to dismiss is GRANTED IN PART. Count II is DISMISSED. Count III is DISMISSED against Dolan and Renta. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is GRANTED. The plaintiff must amend Count III to provide a more definite statement of the claim against Intergro for breach of contract.
The defendant’s “alternative motion [Doc. 19] to strike certain allegations and to strike the affidavit of attorney Carlos A. Leyva” is DENIED. The plaintiff’s motion (Doc. 39) for “choice of law” is DENIED. The plaintiff’s motion (Doc. 43) for partial summary judgment on Count III is DENIED.
No later than JULY 27, 2018, the plaintiff must amend the complaint [*10] to comply with this order4 The plaintiff must add no new claim.
4 That is, the plaintiff must (1) remove the claims for intentional infliction of emotional distress and (2) remove the claims against Dolan and Renta for breach of contract. Also, the plaintiff must amend Count III to provide a more definite statement of the claim against Integro for breach of contract.
ORDERED in Tampa, Florida, on July 16, 2018.
/s/ Steven D. Merryday
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE
Too many contracts can void each other out; two releases signed at different times can render both releases void.Posted: January 14, 2015
Upon signing the second release the first is void based on Novation and the second is void because there is not consideration for the second release.
Example I: You sign a release electronically to participate in an activity. Upon arrival, the outfitter of the activity has you sign a paper release.
Example II: You sign up with a rec center to go skiing. The rec center has you sign a release and when you get to the activity, the ski area has you sign a release. Both releases stop lawsuits for skiing accidents but one protects the rec center, and one protects the ski area. Each release has different language.
Novation is a legal term that states that once you sign a second identical or similar contract to the first contract the second contract voids the first contract based on Novation. Terms such as the amount due, interest owed, etc., can be different as long as the basic agreement is the same, and the parties are generally the same.
An agreement of parties to a contract to substitute a new contract for the old one. It extinguishes (cancels) the old agreement. A novation is often used when the parties find that payments or performance cannot be made under the terms of the original agreement, or the debtor will be forced to default or go into bankruptcy unless the debt is restructured.
The voluntary substitution of a new contract for an old one, usually to change the parties, duties, or payment terms.
Black’s Law Dictionary defines Novation as:
A contract that (1) immediately discharges either a previous contractual duty or a duty, (2) creates a new contractual duty, and (3) includes as a party one who neither owed the previous duty nor was entitled to its performance.
Many definitions of Novation include the word debt, meaning an obligation to repay, a promissory note, but not all definitions do. One argument to make is the Novation does not apply to a release because it is not a debt.
In the first example, Novation could be argued to void the first release. A new agreement has been signed, which then cancels the first agreement.
In the second example, if the parties are the same or similar and the intent of the release is the same, then it is possible that one can argue that a novation occurred canceling the first release.
In the second agreement if the group is a Youth Group that is taking kids skiing, the youth group release includes the ski area as a released party the signature on the ski area release may cancel the youth group release.
Consideration is the second issue. For a contract to be valid, something of value must flow both ways in the contract. Normally, this means one side gives the other side money, and the other side provides a service or a thing of value. You give a ski area money, and the ski area gives you access to their lifts and ski area.
2) a vital element in the law of contracts, consideration is a benefit which must be bargained for between the parties, and is the essential reason for a party entering into a contract. Consideration must be of value (at least to the parties), and is exchanged for the performance or promise of performance by the other party (such performance itself is consideration). In a contract, one consideration (thing given) is exchanged for another consideration. Not doing an act (forbearance) can be consideration, such as “I will pay you $1,000 not to build a road next to my fence.” Sometimes consideration is “nominal,” meaning it is stated for form only, such as “$10 as consideration for conveyance of title,” which is used to hide the true amount being paid. Contracts may become unenforceable or rescindable (undone by rescission) for “failure of consideration” when the intended consideration is found to be worth less than expected, is damaged or destroyed, or performance is not made properly (as when the mechanic does not make the car run properly).
A benefit or right for which the parties to a contract must bargain. In order to be valid, a contract must be founded on an exchange of one form of consideration for another. Consideration may be a promise to perform a certain act — for example, a promise to fix a leaky roof in return for a payment of $1,000 — or a promise not to do something, such as build a second story on a house that will block the neighbor’s view (in return for money or something else). Whatever its particulars, consideration must be something of value to the people who are making the contract, even if the value is very low.
Black’s Law Dictionary defines Consideration as:
Something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee; that which motivates a person to do something. Consideration or a substitute such as promissory estoppel, is necessary for an agreement to be enforceable.
If you paid your money for the activity in Example, I when you signed up and you do not pay more money when you signed the second release OR what you received when you signed the second release was no different than what you received when you signed the first, there was no consideration or no new consideration. Without new or additional consideration, the second agreement is void.
The second Example is quite interesting based on consideration. If you paid the ski area directly for your lift ticket, then there might not be any consideration for the release you signed with the rec center. If you paid the rec center for the lift ticket and the rec center did not receive any of the money, there might be an issue of consideration to the ski area. The rec center would argue as a non-profit they are not supposed to make money or the taxes paid by the person who signed up covered the consideration.
If the rec center bought 2 dozen tickets from the ski area and paid the ski area and then resold them to the participants, then the ski area release would not have any consideration, and the second release would be void. The contract with consideration was between the rec center and the ski area.
If the rec center took the money and had a guest sign their release, then took the money to the ski area which gave the rec center a lift ticket for the people who had signed up, then there would be a contract between the parties, the guest, the rec center and the ski area, however, whether or not the consideration went the right way and to the right people for the right agreement is best determined by an Ouija board or a judge.
Now, if both contracts are signed at the same time, then the consideration may not be an issue, and novation is not an issue. If you have no choice but to use two releases, then have them signed at the same place at the same time.
The decision in Forman v. Brown, d/b/a Brown’s Royal Gorge Rafting, 944 P.2d 559; 1996 Colo. App. LEXIS 343, the dissent argued that the two different contracts signed at the same time cancelled each other out. One was a release, the second contract was titled “On River Prohibitions.” The act which caused the injury to the plaintiff in Forman was prohibited in the On River Prohibitions. Because the two contracts were in conflict and the plaintiff was encouraged to jump in the river, the prohibited act, the dissenting judge felt the release was void.
If you are an outfitter working with business, programs or non-profits brining groups to you, then offer to have everyone sign your release, (if it is a well-written release) and specifically include the group, program, business and/or non-profit in your release. You can sell this as a benefit that you have provided them with a well-written document that provides protection for everyone.
If you have your guests, sign releases electronically, then set up your system so you are comfortable with the system, and you know that someone has signed. That means if they have paid, they have signed the release. They can’t pay without signing the release.
You do have a problem then you need to write a new release so that it takes into account the novation and consideration issues in the new agreement. You have a client who swears they sent you a signed release. However, you do not have a copy. Get a paper copy of the release and write on it that the guest is signing the new release because the old one was lost and the consideration for the new release was the $XX paid to go rafting paid on XX day of XXX month 2015. Have the guest sign the release, and the additional language added the release. However, doing this is extremely risky.
What do you think? Leave a comment.
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