Nevada Appellate court voids release because statements made between the riders & the mechanical bull operator creates a requirement to maneuver the bull in an easy fashion which voided the release. Plaintiff also claimed battery from the actions of the defendant.

A strong and well written dissent argued to enforce the release on general contract principals.

Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

State:
Nevada, Court of Appeals of Nevada

Plaintiff: Joseph Kuchta

Defendant: Sheltie Opco, LLC, a Nevada Limited Liability Company, d/b/a John Ascuaga’s Nugget, d/b/a Gilley’s Nightclub; and Wolfhound Holdings, LLC, a Delaware Limited Liability Company

Plaintiff Claims: Negligence, Negligence Per Se, Negligent Hiring and Respondent Superior, Negligent Supervision, Negligent Entrustment, and Battery

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2020

Summary

Bar patrons wanted to ride the mechanical bull. Before doing so they made the bull operator agree to an easy ride. After one of the riders was thrown and suffered an injury, they sued saying the agreement between the operator and the riders for an easy ride voids the release. The Nevada Court of Appeals agreed.

Facts

While socializing with friends at Gilley’s Nightclub in Sparks, Nevada, a bar owned by respondent Sheltie Opco, Kuchta and his friends observed an employee riding a mechanical bull. As the employee was riding the bull, another employee used a joystick to control the bull’s movements. After the employee demonstrated how easy and non-challenging it was to engage safely in a slow ride, she stepped off the bull.

Sometime later that night, Kuchta and his friends were considering riding the bull. Kuchta’s group approached the same employee, who they had watched ride the bull earlier, and who was now operating the joystick and controlling the ride. Two different people within the group that Kuchta was part of conversed with the employee about riding the mechanical bull.

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. Thus, Kuchta’s and the employee’s understandings and expectations regarding Kuchta’s ride were that it would be easy, at a level two or at a low speed, and that Kuchta would be able to dismount after the ride was finished.

Before any person could ride the mechanical bull, however, Gilley’s required each patron to sign a previously prepared Assumption of Risk, Release, Indemnity, and Medical Treatment Authorization Agreement (Agreement), also known as a written waiver. The Agreement listed potential risks and possible injuries involved in riding the bull, including broken bones, and also released Sheltie Opco from any and all liability for injuries or negligence that occur from all risks, both known and unknown. Kuchta signed the Agreement, although the record does not reveal when it was signed in relation to the conversations described above.

According to Kuchta, once on the bull, the ride was initially slow, as had been requested. However, after approximately 20 seconds, the operator significantly increased the speed and violence of the bull’s movements. Kuchta was thrown from the bull and suffered a fractured pelvis.

Kuchta sued Sheltie Opco alleging: negligence, negligence per se, negligent hiring and respondent superior, negligent supervision, negligent entrustment, and battery. Sheltie Opco moved for summary judgment on all claims, arguing there was no genuine issue of fact because Kuchta expressly assumed the risks of the ride and consented to the battery when he signed the Agreement before riding the bull. The district court granted Sheltie Opco’s motion for summary judgment finding that Kuchta expressly assumed the risks of riding the bull by signing the Agreement, including consenting to the touching that was the basis for his battery claim.

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

The basic issue that pops up in this case is the conversation between the operator of the mechanical bull and the plaintiff who set the conditions for the plaintiff to ride the bull. Normally, verbal agreements are void and only the paper agreements are valid when a contract is signed. This is called the Parol Evidence rule. Oral statements made prior to the signing of the written agreement are of no value in interpreting the contract. Only the information contained in the four corners of the paperwork are reviewed.

This is a scary issue because any statement made by your staff could be used to defeat a release.

Kuchta argues that he did not expressly assume the risk because the operator specifically agreed to provide the requested slow ride (i.e., an intensity of two out of ten) and the operator instead ultimately conducted a wild ride exceeding his expectations.

Does a conversation between a customer and an employee, (or staff member) change a release? More importantly, does it create a modification of the experience so that the release does not cover the risk. Normally no, but in this case, Yes.

The court then looked at the requirements for a valid release under Nevada’s law.

(1) Contracts providing for immunity for liability for negligence must be construed strictly since they are not favorite[s] of the law . . . (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . . . .

Taken as a whole, the requirements are not different in most states. However, the Nevada Appellate court looked further at the requirements to determine whether the plaintiff did assume the risk. Where the risks identified in the release or known by the plaintiff.

However, our inquiry does not stop here as it pertains to the waiver’s validity; we must determine whether Kuchta expressly assumed the risks contemplated by the waiver.

In Nevada, releases are looked at as proof, the plaintiff assumed the risk. These are one-way courts look at releases; however, it is a minority view. The release must then contain the necessary language for the defendant to prove the plaintiff knew and assumed the risk that caused his or her injury.

The court has combined, under Nevada’s law, the relationship of contract, the release, and the risks outlined or assumed by contract in the release. Meaning, not only must you agree not to sue, the risks you assume must be specific in the release.

“Express assumption of risk[‘s] . . . vitality stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.”

A release under Nevada’s law is an express assumption of risk agreement. Express meaning written.

Generally, “[a]ssumption of the risk is based on a theory of consent.” For a party to assume the risk there are two requirements. “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Actual knowledge of the danger by the party alleged to have assumed the risk is the essence of the express assumption of risk doctrine.

The plaintiff in this case did not consent to the ride he was given, even though he signed away his right to sue. The failure of the defendant to prove the plaintiff assented to the ride he received, which was not in the written release, was cause for the release to fail, possibly.

To determine whether the party signing had actual knowledge of the risks assumed, courts must consider “[(1)] the nature and extent of the injuries, [(2)] the haste or lack thereof with which the release was obtained, and [(3)] the understandings and expectations of the parties at the time of signing.”

The first two requirements were met in this case. However, the third requirement was not met. The plaintiff did not have an understanding or expectations of the parties at the time the release was signed.

These conflicting allegations create a genuine dispute of material fact as to the expectations of the parties and as to whether the bull operator’s conduct failed to meet those expectations. Because Kuchta and Sheltie Opco each presented consistent and conflicting facts regarding both parties’ expectations of the ride, and knowledge of the risks involved in a level two-of-ten or easy ride, a trier of fact should have resolved this issue. Thus, the district court erred by granting summary judgment in favor of Sheltie Opco as to Kuchta’s negligence claims.

No party, who signs a release, expects to be injured or killed. So, this third requirement is different. No guest signs the release with an understanding they can’t sue. They sign the release because it is part of the paperwork needed to engage in the activity. If you made the effort to make sure the person signing the release understood the expectations of them from you when signing the release, many might not.

So, this decision in Nevada does not void releases. It does, however, create an additional requirement in the relationship between your guests and your operations. The risks the client is undertaking must be known and assumed by the plaintiff prior to undertaking the activity. That risk must be expressed in the release.

The second argument the plaintiff made that the court undertook was the battery claim. Most people understand the TV term assault and battery as a criminal charge. However, battery has been an intentional tort for centuries. “A battery is an intentional and offensive touching of a person who has not consented to the touching.”

In this case, the touching is not an actual contact between the plaintiff and the defendant but causing the plaintiff to be “touched” by the landing surface which caused his injury.

The court looked at this intentional tort as greater than normal negligence.

“[G]eneral clauses exempting the defendant from all liability for negligence will not be construed to include intentional or reckless misconduct, or extreme and unusual kinds of negligence, unless such intention clearly appears.”

This phrase is quite interesting. Like all other states, a release does not cover intentional, reckless, or extreme conduct on the part of the defendant. At the same time, the court seemed to open the idea that a release under Nevada’s law could stop a claim for intentional, reckless, or extreme conduct if it was intentional and clear in the release.

Because there was a conflict between the plaintiff and the defendant as to the facts surrounding the battery, the Appellate court found the motion for summary judgment should not have been granted.

The dissent in this case would have upheld the release based on basic contract law. The dissent sets out a thorough review of contract law in Nevada.

Summing up, what 500 years of contract law tell us is this:

(1) a contract means what its words say and an unambiguous contract “will be enforced as written”;

(2) what the contractual words say is what they objectively convey in their ordinary sense regardless of what the parties might have personally thought or intended in their heads;

(3) the final contract supersedes all earlier verbal negotiations;

(4) parol evidence may only be used to clarify a term that is ambiguous, and an ambiguity does not arise merely because the parties disagree on what they think the contract means;

(5) parol evidence may never be used to contradict an express term of a contract, whether the contract is integrated or not;

(6) parol evidence may never consist of earlier negotiations inconsistent with the final contract, whether the final document is integrated or not;

(7) when there is no dispute regarding what the words of the contract consist of (and there is no dispute regarding what any parol evidence admitted to clarify an ambiguity actually is), and the only remaining dispute is over what those undisputed words and parol evidence mean, then all that remains is a pure question of law for the court.

The dissent specifically focused on the Parol Evidence Rule which in most cases have prevented the conversation between the patrons and the mechanical bull operator from being offered into evidence.

The court voided the release and allowed the intentional tort of battery to proceed.

So Now What?

This upends release law in Nevada. Your release must be able to prove the guest understood the risks they may encounter, All of the risks.

Any statements made by your staff, could alter your release, worse, alter the understanding of the release or the risks, creating an issue that will have to go to trial to determine.

Bringing an intentional tort into a lawsuit is another game changer. Raft guides that intentional hit a rock, bump a boat, or even flip a boat will create liability in Nevada for any injury their customers receive.

What do you think? Leave a comment.

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Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

Court of Appeals of Nevada

July 8, 2020, Filed

No. 76566-COA

Reporter

2020 Nev. App. Unpub. LEXIS 549 *; 2020 WL 3868434

Joseph Kuchta, an Individual, Appellant, vs. Sheltie Opco, LLC, A Nevada Limited Liability Company, d/b/a John Ascuaga’s Nugget, d/b/a Gilley’s Nightclub; and Wolfhound Holdings, Llc, A Delaware Limited Liability Company, Respondents.

Notice: NOT DESIGNATED FOR PUBLICATION. PLEASE CONSULT THE NEVADA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.

Judges:  [*1] Gibbons, C.J., Bulla, J. TAO, J., dissenting.

Opinion by: Gibbons

Opinion

ORDER OF REVERSAL AND REMAND

Joseph Kuchta appeals a district court order granting Sheltie Opco, LLC’s (Sheltie Opco) motion for summary judgment in a tort action. Second Judicial District Court, Washoe County; Scott N. Freeman, Judge.

While socializing with friends at Gilley’s Nightclub in Sparks, Nevada, a bar owned by respondent Sheltie Opco, Kuchta and his friends observed an employee riding a mechanical bull. As the employee was riding the bull, another employee used a joystick to control the bull’s movements. After the employee demonstrated how easy and non-challenging it was to engage safely in a slow ride, she stepped off the bull.

Sometime later that night, Kuchta and his friends were considering riding the bull. Kuchta’s group approached the same employee, who they had watched ride the bull earlier, and who was now operating the joystick and controlling the ride. Two different people within the group that Kuchta was part of conversed with the employee about riding the mechanical bull.

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy [*2]  ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. Thus, Kuchta’s and the employee’s understandings and expectations regarding Kuchta’s ride were that it would be easy, at a level two or at a low speed, and that Kuchta would be able to dismount after the ride was finished.

Before any person could ride the mechanical bull, however, Gilley’s required each patron to sign a previously prepared Assumption of Risk, Release, Indemnity, and Medical Treatment Authorization Agreement (Agreement), also known as a written waiver. The Agreement listed potential risks and possible injuries involved in riding the bull, including broken bones, and also released Sheltie Opco from any and all liability for [*3]  injuries or negligence that occur from all risks, both known and unknown. Kuchta signed the Agreement, although the record does not reveal when it was signed in relation to the conversations described above.

According to Kuchta, once on the bull, the ride was initially slow, as had been requested. However, after approximately 20 seconds, the operator significantly increased the speed and violence of the bull’s movements. Kuchta was thrown from the bull and suffered a fractured pelvis.

Kuchta sued Sheltie Opco alleging: negligence, negligence per se, negligent hiring and respondent superior, negligent supervision, negligent entrustment, and battery. Sheltie Opco moved for summary judgment on all claims, arguing there was no genuine issue of fact because Kuchta expressly assumed the risks of the ride and consented to the battery when he signed the Agreement before riding the bull. The district court granted Sheltie Opco’s motion for summary judgment finding that Kuchta expressly assumed the risks of riding the bull by signing the Agreement, including consenting to the touching that was the basis for his battery claim.

On appeal, Kuchta argues that the district court erred in granting summary [*4]  judgment because even though he signed the Agreement, under the doctrine of express assumption of risk, there are genuine issues of fact. He further contends that the district court erred in granting summary judgment to Sheltie Opco on his battery claim because battery is not covered by the Agreement. We agree that under the facts of this case, genuine issues of material fact remain as to Kuchta’s negligence and battery claims, and therefore, we reverse and remand.

Standard of review

We review a district court order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file, viewed in the light most favorable to the non-moving party, demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. “A factual dispute is genuine when the evidence is such that a rational trier of fact could return a verdict for the nonmoving party.” Id. at 731, 121 P.3d at 1031.

The district court erred by granting summary judgment to Sheltie Opco on the negligence claims

Kuchta argues that he did not expressly assume the risk because the operator specifically agreed to provide the requested slow ride (i.e., an intensity [*5]  of two out of ten) and the operator instead ultimately conducted a wild ride exceeding his expectations. Sheltie Opco argues that the Agreement was a valid written waiver and that Kuchta understood the risks when he got on the bull. Specifically, he understood that the bull could “jerk[ ] and spin[ ] violently and unexpectedly” resulting in “broken bones.” And, as counsel for Sheltie Opco pointed out at oral argument, Kuchta could have declined to ride the bull if he had any concerns about the possibility of injury as fully explained in the Agreement. Moreover, no one forced Kuchta to sign the Agreement and ride the bull.

In Nevada, an exculpatory agreement is a “valid exercise of the freedom of contract.” Miller v. A&R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981). Though generally enforceable, exculpatory clauses in a contract must meet four standards before a party seeking to enforce the clause can be absolved of liability:

(1) Contracts providing for immunity for liability for negligence must be construed strictly since they are not favorite[s] of the law . . . (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation [*6]  and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . . . .

Agric. Aviation Eng’g Co. v. Bd. of Clark Cty. Comm’rs, 106 Nev. 396, 399-400, 794 P.2d 710, 712-13 (1990) (quoting Richard’s 5 & 10, Inc. v. Brooks Harvey Realty Inv’rs, 264 Pa. Super. 384, 399 A.2d 1103, 1105 (Pa. Super. Ct. 1979)).

Looking to the Agreement’s exculpatory clause, it warns that any ride participant will:

FULLY RELEASE FROM ALL LIABILITY ARISING FROM MY PARTICIPATION IN THE MECHANCIAL BULL RIDING PROGRAM the Nugget Hotel and Casino, Gilley’s, and their respective owners . . . . I AGREE NEVER TO SUE ANY RELEASEE . . . for any cause of action arising from my participation in the MECHANICAL BULL RIDING PROGRAM . . . . ALL PROVISIONS OF THIS AGREEMENT APPLY IRRESPECTIVE OF AND EVEN IN THE CASE OF [ ] NEGLIGENCE. . . .

Even when strictly construed, the language in the Agreement expressly states, with particularity, Sheltie Opco’s intent to release itself and others designated from any and all liability. The Agreement also specifically states that Sheltie Opco would be released from liability for any negligence on its part that may occur while a person rides the mechanical bull, Further, [*7]  the parties concede that Kuchta voluntarily signed the Agreement, which included the exculpatory clause.

However, our inquiry does not stop here as it pertains to the waiver‘s validity; we must determine whether Kuchta expressly assumed the risks contemplated by the waiver. Renaud v. 200 Convention Ctr. Ltd., 102 Nev. 500, 501,102 Nev. 500, 728 P.2d 445, 446 (1986) (analyzing an exculpatory waiver under the doctrine of express assumption of the risk).1 “Assumption of the risk is based on a theory of consent.” Id.

Next, reviewing the Agreement’s express waiver, it warns in relevant part:

There is a significant risk that I will be seriously injured as a result of my participating in the MECHANICAL BULL RIDING PROGRAM, including permanent paralysis, head injury, broken neck, other broken bones and death, whether or not I am thrown from or fall from the MECHANICAL BULL . . . . I KNOWINGLY AND FREELY ASSUME ALL RISKS ARISING FROM MY PARTICIPATION IN THE MECHANICAL BULL RIDING PROGRAM, including all risks to my life, health, safety and property, both known and unknown.

“Express assumption of risk[‘s] . . . vitality stems from a contractual undertaking that expressly relieves a putative defendant [*8]  from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.” Mizushima v. Sunset Ranch, Inc., 103 Nev. 259, 262, 737 P.2d 1158, 1159 (1987), overruled on other grounds by Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 180 P.3d 1172 (2008). Generally, “[a]ssumption of the risk is based on a theory of consent.” Renaud, 102 Nev. at 501, 728 P.2d at 446. For a party to assume the risk there are two requirements. “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Id. Actual knowledge of the danger by the party alleged to have assumed the risk is the essence of the express assumption of risk doctrine. Id. To determine whether the party signing had actual knowledge of the risks assumed, courts must consider “[(1)] the nature and extent of the injuries, [(2)] the haste or lack thereof with which the release was obtained, and [(3)] the understandings and expectations of the parties at the time of signing.” Id. at 502, 728 P.2d at 446 (emphasis added).

Here, Kuchta’s injuries were severe, but were injuries a person would associate with being thrown from a bull. Furthermore, there is nothing in the record to suggest that Kuchta was rushed into signing the exculpatory agreement. However, the third factor weighs heavily in Kuchta’s favor. According [*9]  to Kuchta’s responses to Sheltie Opco’s interrogatories,2 the bull operator was told that they all wanted a slow ride, similar to the ride the operator had while demonstrating the use of the bull.3 Kuchta and former co-plaintiff Rebecca Bodnar both alleged in their responses to Sheltie Opco’s interrogatories that their rides on the bull started gently before the bull operator significantly increased the intensity, leading them to suffer injury. The bull ride operator, in an affidavit, states that she did not “operate the bull in a fashion that was intended to exceed Plaintiffs’ expectations of how intense the bull’s motions would be,” thereby suggesting that expectations had been set for Kuchta’s ride that may have been different than those described in the waiver.4

These conflicting allegations create a genuine dispute of material fact as to the expectations of the parties and as to whether the bull operator’s conduct failed to meet those expectations.5 Because Kuchta and Sheltie Opco each presented consistent and conflicting facts regarding [*10]  both parties’ expectations of the ride, and knowledge of the risks involved in a level two-of-ten or easy ride, a trier of fact should have resolved this issue.6 Thus, the district court erred by granting summary judgment in favor of Sheltie Opco as to Kuchta’s negligence claims.7

The district court erred by granting summary judgment in favor of Sheltie Opco on Kuchta’s battery claim

Kuchta argues that the district court erred in granting summary judgment in favor of Sheltie Opco on his battery claim because the Agreement did not contemplate gross negligence or intentional misconduct. Sheltie Opco contends that uncontroverted facts show that Kuchta consented to any conduct resulting from the bull ride, and thus, summary judgment was appropriate on his battery claim.

“A battery is an intentional and offensive touching of a person who has not consented to the touching . . . .” Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev. 544, 549, 376 P.3d 167, 171 (2016) (internal quotation marks omitted). “[G]eneral clauses exempting the defendant from all liability for negligence will not be construed to include intentional or reckless misconduct, or extreme and unusual kinds of negligence, unless such intention [*11]  clearly appears.” Restatement (Second) of Torts § 496B cmt. d (1965).

Here, Kuchta consented to a bull ride, but he claims he only consented to a mild ride, and therefore, any contact associated with a mild ride was allowed and could not be a battery. However, if the ride went beyond a mild ride, then there is a material question of fact as to the nature of the ride and to whether Kuchta consented to the resulting physical contact as the result of the unexpectedly rough ride. Further, Kuchta presented facts from two interrogatory responses that the bull rider intentionally increased the intensity of the bull machine, possibly attempting to throw him from the bull despite his understanding that the ride would be of mild intensity.8 Sheltie Opco provided an affidavit from the bull ride operator that stated that she did not intentionally increase the intensity of the bull ride beyond Kuchta’s expectations (which could also imply that she did in fact increase the intensity and understood his expectations). Viewing these assertions in a light most favorable to Kuchta, the nonmoving party, a rational trier of fact could find that the bull operator committed a battery by intentionally increasing the speed of the ride thereby deliberately [*12]  failing to meet the agreed upon expectations.9

Based on the parties’ conflicting factual assertions, it was inappropriate for the district court to grant summary judgment in favor of Sheltie Opco, as the trier of fact should resolve the conflict. Thus, the district court erred in granting summary judgment in favor of Sheltie Opco as to Kuchta’s battery claim. Accordingly, we

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.10

/s/ Gibbons, C.J.

Gibbons

/s/ Bulla, J.

Bulla

Dissent by: TAO

Dissent

TAO, J., dissenting:

Although ostensibly arising from a personal injury suit, the only question at issue in this appeal is whether Kuchta’s tort claims were contractually waived, which presents a question of contract law. The majority reverses by concluding that a genuine issue of fact exists under NRCP 56. But this can only be true if the scope of the waiver contract isn’t limited to its express words, but rather depends upon Kuchta’s verbal testimony, proffered during a deposition many months after the fact, regarding his intentions — even though those supposed intentions are contained nowhere in the contractual words and actually [*13]  contradict those words. Respectfully, I dissent.

I.

Liability waivers must mean something in Nevada, even if they might be allowed to mean less in other states. What Nevada has always represented is the opportunity to try things that aren’t available anywhere else. One hundred fifty years ago, it was the chance to strike gold and silver ore in the desert. Then it became the chance to strike it rich on a roulette wheel or a slot machine. But more and more nowadays, it’s the chance to experience an adventure that you simply can’t have anywhere else. With an economy now driven largely by tourism, what Nevada offers are things that other states and cities do not. Gambling, of course. Concerts, shows, and world-class restaurants also. Convention space, surely. Quick marriages and no-fault divorces too. But, also, the chance, for some, to engage in derring-do — to fly a fighter plane in aerial combat; to ride a zipline over city streets and steep canyons; to engage in gun battles armed with simunition; to skydive 30,000 feet to the desert; to swim with dolphins in their habitat; to fire a real machine gun or ride in an armored tank; to bungee jump from a tower; to ride a roller-coaster suspended [*14]  500 feet in the air; to race luxury cars around a track at breakneck speed. One could argue that mining and gaming aren’t our real stock in trade, but rather novelty.

But with some novel experiences comes some level of danger. Jumping out of an airplane is an activity fraught with risk no matter how carefully the parachute was packed. There’s no way to entirely eliminate all of the risk from ziplines, bungee jumps, and rafting through whitewater rapids. If Nevada intends to remain the premier tourist destination in a fast-evolving and competitive world, then our law must permit some proprietors to operate businesses that are, at least at some level, inherently risky and dangerous. If we ever lose our reputation for remaining on the cutting edge, then there’ll be no more reason for millions of tourists to visit. And if that day ever comes, Nevada will no longer be what it always has been.

Liability waivers thus serve an important role in a state like ours: they allow proprietors to stay on the cutting edge by allowing them to operate with some level of risk, so long as they take the time to apprise their customers of those risks. Here, Kuchta signed a written liability waiver whose terms [*15]  unambiguously cover the precise injuries he suffered (broken bones) and the precise way he incurred them (being thrown) using the precise apparatus (a mechanical bull) that the waiver precisely addressed. The district court granted summary judgment, concluding that this waiver barred his tort claims.

Let’s briefly summarize the facts and the arguments that Kuchta makes in appealing from the district court’s order. I’ll return to analyze these arguments later in more detail, so for now just a synopsis will do. Viewing the facts in the light most favorable to Kuchta, he contends that he and his friends arrived at Gilley’s, watched a demonstration of the mechanical bull, and then spoke with the ride operator who verbally agreed to provide him with a ride that equated to a difficulty level of 2 out of 10. The majority describes Kuchta’s testimony as follows:

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone [*16]  in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. (Order, page 2).

Kuchta and his friends then ate dinner. After dinner, they decided to get a ride, and Kuchta signed a written waiver stating as follows:

I AM FULLY INFORMED OF ALL RISKS ARISING FROM MY PARTICIPATION IN THE MECHANICAL BULL RIDING PROGRAM, including the risks described in this paragraph. The mechanical bull jerks and spins violently and unexpectedly. There is a significant risk that I will be seriously injured . . . [i]ncluding permanent paralysis, head injury, broken neck, other broken bones, and death, whether or not I am thrown from or fall.

Note that, by signing this, Kuchta acknowledged that the mechanical bull “jerks and spins violently and unexpectedly” and that riding it created a “significant risk” of injury from being “thrown,” including “broken bones.” Note also that this isn’t a generic catch-all waiver that [*17]  purports to cover the entire panoply of any kind of negligence that could conceivably occur on the premises, such as wet floors, rotten food, or debris falling from the roof. Quite to the contrary, it’s a narrow waiver that specifically covers one thing and one thing only, the mechanical bull and nothing else. After signing the waiver and mounting the bull, Kuchta was thrown from the bull in the very way that the waiver warned might happen, suffering one of the very injuries (broken bones) that the waiver warned might result. The district court granted summary judgment, concluding that the waiver covered Kuchta’s injuries.

On appeal, Kuchta argues that the words of the written waiver do not mean what they seem to so plainly say, not because any words of the waiver actually agree with him, but rather because when the ride operator verbally agreed to provide a level 2 ride, he changed Kuchta’s understanding and expectations” regarding the meaning of the waiver. But as the cliche goes, apples are not oranges, and here the verbal conversation had nothing to do with the waiver. Note what’s omitted from even the majority’s summary of the verbal conversation: any mention of the waiver whatsoever. [*18]  Just because the ride operator verbally agreed to try to provide a level 2 ride does not mean that he legally changed the waiver so that it only covered a level 2 ride and nothing more. Indeed, the truth at the heart of this case is that nobody (not even Kuchta) contends that the verbal discussion between Kuchta and the ride operator constituted a negotiation of the waiver; everyone agrees that it was only a conversation about the kind of ride Kuchta wanted. What Kuchta requested was a particular kind of ride, not a particular kind of waiver.

Kuchta tries to bootstrap the conversation about the ride into the contract about the waiver by arguing that it’s “parol evidence” regarding his “understanding and expectations” of what the contract covered. But a verbal conversation about the kind of ride Kuchta requested isn’t “parol evidence” for two reasons: first, the verbal conversation occurred before Kuchta signed the waiver, which means that the written contract supersedes any and all earlier alleged negotiations. Second, the kind of ride he requested isn’t a term of the waiver contract. The kind of ride he wanted, and the kind of ride he agreed to waive, are two very different things, [*19]  only one of which was ever the subject of the written waiver contract. Kuchta argues that merely because the ride he got was not the ride he requested, it fell outside of the scope of the waiver. But the waiver says nothing remotely like that.

The proper analysis here is to compare the ride he got to the plain words of the waiver. The very question in this case (not the answer, but the question) is whether the ride that Kuchta actually got was encompassed within the scope of the waiver that he signed. Kuchta tries to mix up the question with its answer, and make it all a circularity, by arguing that the waiver must only cover the ride he asked for. But nothing in the written waiver (and nothing in the verbal conversation either) indicates that the scope of waiver was supposed to be a moving target that ratcheted up or down to whatever kind of ride Kuchta personally wanted and, likewise, ratchets up or down for every other customer who requests a different level of ride. Reading the contract that way means that it lacks any fixed or objective meaning whatsoever but instead changes its meaning for each different customer even though the words themselves remain exactly the same, reducing [*20]  the contract to nothing more than a Rorshach ink blot having no intrinsic meaning apart from what any reader wants to see in it.

But this isn’t how contract law tells us to read a contract. The district court interpreted the contract correctly as a matter of law according to the objective meaning of its words – and I would affirm.

II.

Here’s how contract law actually works and how this appeal should have been analyzed.

To start with, it’s well-settled that interpreting the meaning of a contract is a question of law, not a question of fact. Redrock Valley Ranch, LLC v. Washoe County, 127 Nev. 451, 460, 254 P.3d 641, 647 (2011). Disputes regarding the scope and meaning of a contract do not preclude summary judgment because such disputes present pure questions of law for the court, not the jury, to resolve. “[I]n the absence of ambiguity or other factual complexities, contract interpretation presents a question of law that the district court may decide on summary judgment.” Galardi v. Naples Polaris LLC, 129 Nev. 306, 309, 301 P.3d 364, 366 (2013) (internal quotation marks omitted).

So, if there is no dispute over what the words of a contract consist of, and the only dispute is over what those words mean, the court is presented with a question of law that it may dispose of on summary judgment. Here, there are no factual disputes that a jury must sort [*21]  out. The parties do not dispute what words the written waiver consists of; Kuchta does not, for example, contend that any pages are missing or any clauses are blurry or incomplete. The parties also do not dispute what the words of the verbal conversation between Kuchta and the ride operator consist of; accept what Kuchta says to be true and agree with him that the operator agreed to try to provide a level 2 ride. There may exist some disagreement over what legal effect those words may have, if any; but there is no dispute regarding what the words of the conversation were. There are thus no factual disputes, only legal ones. The only thing left in dispute is what those words (both the undisputed words of the document and the undisputed words of the verbal conversation) mean about the scope of the waiver, which is a pure question of law that we must answer ourselves in this appeal de novo. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005).

To answer that purely legal question, we start with the words of the contract. Bielar v. Washoe Health Sys., Inc., 129 Nev. 459, 465, 306 P.3d 360, 364 (2013). “A basic rule of contract interpretation is that ‘[e]very word must be given effect if at all possible.’ Id., 306 P.3d at 364. (quoting Musser v. Bank of Am., 114 Nev. 945, 949, 964 P.2d 51, 54 (1998) (alteration in original). Those words will either be unambiguous, or they will be ambiguous. Am. First Fed. Credit Union v. Soro, 131 Nev. 737, 739, 359 P.3d 105, 106 (2015). If the [*22]  words are unambiguous, then we look no farther than the four corners of the written document for its meaning. Id., 359 P.3d at 106. The court “has no authority to alter the terms of an unambiguous contract.” Canfora v. Coast Hotels and Casinos, Inc., 121 Nev. 771, 776, 121 P.3d 599, 603 (2005). Rather, an unambiguous contract “will be enforced as written.” Am. First Fed. Credit Union, 131 Nev. at 739, 359 P.3d at 106. “[T]he words of the contract must be taken in their usual and ordinary signification.” Traffic Control Svcs., Inc. v. United Rentals Northwest, Inc., 120 Nev. 168, 174, 87 P.3d 1054., 120 Nev. 168, 87 P.3d 1054, 1058 (2004). Only if the words are ambiguous do we venture outside of the document itself to examine such extrinsic things as parol evidence and settled rules of construction in order to determine the intent of the parties. M.C. Multi-Family Dev., LLC v. Crestdale Assocs., Ltd., 124 Nev. 901, 913-14, 193 P.3d 536, 544-45 (2008). An ambiguity must be inherent within the contractual term itself, and “does not arise simply because the parties disagree on how to interpret their contract.” Galardi, 129 Nev. at 309, 301 P.3d at 366.

Kuchta contends that the conversation regarding the level 2 ride must be considered “parol evidence” of contractual meaning. But “parol evidence” is only admissible when some contractual term is facially ambiguous. “The parol evidence rule does not permit the admission of evidence that would change the contract terms when the terms of a written agreement are clear, definite, and unambiguous.” Ringle v. Bruton, 120 Nev. 82, 91, 86 P.3d 1032, 1037 (2004). Further, even when such an ambiguity exists, courts can utilize parol evidence to [*23]  clear up what those ambiguous words mean but they cannot use parol evidence “to add to, subtract from, vary, or contradict” the words of the contract itself. M.C. Multi-Family Dev., LLC,124 Nev. at 913-14, 193 P.3d at 544-45. “[P]arol evidence may not be used to contradict [express] terms.” Galardi, 129 Nev. at 309, 301 P.3d at 366 (Quoting Kaldi v. Farmers Ins. Exch., 117 Nev. 273, 281, 21 P.3d 16, 21 (2001)). Thus, even when admissible (i.e., only when there’s an ambiguity), parol evidence is only meaningful to the extent that it clarifies and does not contradict or re-write the plain words of the contract itself. Id. And this is true whether the final document is integrated or not: if a contract is integrated then it may neither be supplemented nor contradicted by any additional evidence of any kind. If a contract is not integrated, then it may be supplemented by “consistent additional terms” but it still may never be contradicted by any extrinsic evidence. John D. Calamari & Joseph M. Perillo, Contracts § 3-2, “The Parol Evidence Rule”, 135-36 (3d ed. 1987) (text cited as authority in Matter of Kern, 107 Nev. 988. 991, 107 Nev. 988, 823 P.2d 275, 277 (1991).

Here, no term of the written waiver is facially ambiguous. Rather than identify some particular term that might be inherently ambiguous, Kuchta (and the majority) seem to contend instead that the entire contract was effectively re-written through the verbal conversation. [*24]  But that’s using “parol evidence” beyond its permissible purpose: not to clarify the meaning of an ambiguous term, but to change the scope and meaning of the entire contract. The majority uses the supposed “parol evidence” not to clarify the written words of the contract, but to make the entire contract mean only what the parol evidence says it means regardless of what the written words actually say. Not to illuminate the written words, but to replace them; not to make the written words clear, but to make them meaningless.

That isn’t how “parol evidence” works. There are several layers of problems here. First, parol evidence can never be used to contradict a writing, whether or not the writing was integrated. Galardi, 129 Nev. at 309, 301 P.3d at 366. Yet that’s exactly what Kuchta proposes. The written words, taken in their “usual and ordinary signification,” are clear. Traffic control Svcs., Inc. v. United Rentals Northwest, inc., 120 Nev. 168, 174, 87 P.3d 1054., 120 Nev. 168, 87 P.3d 1054, 1058 (2004). They expressly inform Kuchta that the ride will be violent with “unexpected” movements that may cause injury, and Kuchta’s signature acknowledges that he understood this. But Kuchta now says that he misunderstood this and the verbal conversation led him to “expect” a less-violent ride that [*25]  couldn’t cause injury. This isn’t using extrinsic evidence to clarify the words of a contract; it’s abusing extrinsic evidence to re-write the words of a contract to mean their exact opposite.

Second, the sequence of events matters. As the majority itself notes, the conversation between Kuchta and the rider operator occurred first. Only well after the conversation ended did Kuchta later sign the written waiver. And the law is clear that a written contract supersedes and obliterates all prior negotiations:

“an earlier tentative agreement will be rejected in favor of a later expression. More simply stated, the final agreement made by the parties supersedes tentative terms discussed in earlier negotiations. Consequently, in determining the content of the contract, earlier tentative agreements and negotiations are inoperative.”

Calamari & Perillo, supra at 135. So the verbal conversation isn’t “parol evidence” at all, but rather was nothing more than an early negotiation that never found its way into the written contract and now has no legal importance to what the parties signed later. (This, by the way, is the problem with footnote 2 of the majority’s order, which concludes that the verbal conversation constituted its [*26]  own separate contract: if the alleged verbal agreement covered the same subject matter as the signed contract (i.e., it was a negotiation over the waiver rather than the ride), then the earlier unsigned agreement was legally superseded by the later signed writing. If it covered some other subject matter (i.e., it was not a negotiation of the waiver but only covered the ride), then it was not superseded, but it has no relevance to the signed contract. Beyond that, if indeed there existed a contract requiring the operator to provide a level 2 ride, then the failure to do so was a breach of contract, not a tort, and the majority order now thoroughly confuses the standard of care by violating the “fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby [generally] encourages citizens to avoid causing physical harm to others.” Terracon Consultants W., Inc. v. Mandalay Resort Grp., 125 Nev. 66, 206 P.3d 81. 72-73, 125 Nev. 66, 206 P.3d 81, 86 (2009). On remand, should the defendant be held to the words of the alleged oral contract, or the standard of a reasonable person, when only tort claims and no contract claims have been asserted? Good luck sorting that out.).

Third, even assuming [*27]  that the verbal conversation is “parol evidence” at all (which it isn’t, but let’s skip past that hurdle), it proves nothing relevant to the waiver contract. Kuchta acknowledged during oral argument that the conversation did not overtly represent a negotiation of the waiver; indeed, the words of the conversation never reference the waiver at all, only the kind of ride Kuchta wanted. Rather, Kuchta only alleges that the conversation affected his “understanding and expectation” of what the waiver contract was supposed to mean. See Renaud v. 200 Convention Cor. Ltd., 102 Nev. 500, 501, 102 Nev. 500, 728 P.2d 445, 446 (1986). What he’s saying is this: the contract must be read to mean not what the words of the document say, but only what he intended them to mean in his mind. But under principles of contract law, whether we read the four corners of an unambiguous contract or whether we look at parol evidence outside of an ambiguous one, what we’re looking for is not “intent” in the sense of the subjective intention of the parties (i.e., what the parties may have thought in their minds), but only the objective meaning conveyed by the words they used in the agreement. “[T]he making of a contract depends not on the agreement of [*28]  two minds in one intention, but on the agreement of two sets of external signs, not on the parties’ having meant the same thing but on their having said the same thing.” Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 401, 632 P.2d 1155, 1157 (1981) (alteration in original, internal quotation marks omitted). In the oft-cited words of Holmes, “we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” Oliver W. Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417-18 (1899). “[T]he words of the contract must be taken in their usual and ordinary signification,” not twisted around to mean some personal peculiarity at odds with accepted English usage. Traffic Control Svcs., Inc. v. United Rentals Northwest, Inc., 120 Nev. 168, 174, 87 P.3d 1054, 1058 (2004). That the words of a contract are interpreted objectively according to normal rules of grammar, rather than subjectively according to the parties’ personal thoughts, has been the law for centuries. See Calamari & Perillo, supra, § 2-2, “Offer and Acceptance” at 26. “Objective manifestations of intent of the party should be viewed from the vantage point of a reasonable man in the position of the other party,” not the party alleging that his own words meant something else. Id. Thus, if one party offers to sell his car for $500 and the other says, “I accept,” [*29]  a contract is formed because of what they said, not what they thought; once they uttered the objective words of offer, acceptance, and consideration, a contract was created by operation of law. This is true even if one party later claims that he was only kidding. Id. at 27. The inquiry is not into what the parties may have intended in their minds to convey but rather the most reasonable meaning to be given to the words they utilized in the contract itself. The issue is not what Kuchta claims he meant, but what his words objectively conveyed to the other party, and the agreement must be “ascertained from the writing alone” (unless the writing is ambiguous). Oakland-Alameda Cty. Coliseum, Inc. v. Oakland Raiders, Lid., 197 Cal. App. 3d 1049, 243 Cal. Rptr. 300, 304 (Ct. App. 1988). But here, Kuchta proposes the opposite: that we ignore the words of the written document and instead make the contract only mean what was in his mind rather than what everyone signed on paper.

Finally, even if we skip past all of that and assume that parol evidence could be used the way that Kuchta proposes (even though it can’t be, but let’s ignore that for a moment), the content of both the document and the alleged “parol evidence” is wholly undisputed: nobody contests what words were written in the document or spoken during the conversation. [*30]  So what we’re left with is only a question of law regarding what those words mean, something that appellate courts are supposed to answer themselves as a matter of law and not leave to the jury. Thus, even if parol evidence was supposedly useable this way (again, ignoring settled principles of contract law), then the appropriate disposition is for us to just say, as a matter of law, whether the waiver contract covers the incident or not, without remanding a pure question of law back to the district court to grapple with during a jury trial. “[I]n the absence of ambiguity or other factual complexities, contract interpretation presents a question of law [appropriate for] summary judgment.” Galardi, 129 Nev. at 309, 301 P.3d at 366 (internal quotation marks omitted).

III.

Summing up, what 500 years of contract law tell us is this:

(1) a contract means what its words say and an unambiguous contract “will be enforced as written”;

(2) what the contractual words say is what they objectively convey in their ordinary sense regardless of what the parties might have personally thought or intended in their heads;

(3) the final contract supersedes all earlier verbal negotiations;

(4) parol evidence may only be used to clarify a term that is [*31]  ambiguous, and an ambiguity does not arise merely because the parties disagree on what they think the contract means;

(5) parol evidence may never be used to contradict an express term of a contract, whether the contract is integrated or not;

(6) parol evidence may never consist of earlier negotiations inconsistent with the final contract, whether the final document is integrated or not;

(7) when there is no dispute regarding what the words of the contract consist of (and there is no dispute regarding what any parol evidence admitted to clarify an ambiguity actually is), and the only remaining dispute is over what those undisputed words and parol evidence mean, then all that remains is a pure question of law for the court.

Applying these seven principles leads to an obvious and straightforward outcome. Here, nobody disputes what the words of the written waiver are; there’s not even any dispute about what the words of the “parol evidence” were, only what legal effect those words have or do not have. There’s no dispute that the alleged verbal agreement was never intended to be final, never mentioned the waiver in any way, and occurred before the signing of the written waiver contract. There [*32]  is no factual question left to work out. The only question before us is what all of the undisputed evidence means. That’s a pure question of law that we, not the jury, are supposed to answer.

IV.

With no dispute about what words the contract consisted of, what remains is solely a question of contractual interpretation. Redrock Valley Ranch., LLC v. Washoe County, 127 Nev. 451, 460, 254 P.3d 641, 647 (2011).

Here, the written words say that Kuchta waived the right to pursue any liability arising from broken bones that may result from being thrown from the “violent and unexpected” jerking of the mechanical bull. The parol evidence (assuming that the verbal conversation was any such thing) is that Kuchta asked for a level 2 ride and the operator agreed to try to provide one. None of this is in dispute. What does this all mean as a matter of law?

In the context of liability waivers, there are a couple of additional rules of construction to follow. In Nevada, an exculpatory agreement is a “valid exercise of the freedom of contract.” Miller v. A&R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981). Though generally enforceable, exculpatory clauses in a contract must meet four standards before a party seeking to enforce the clause can be absolved of liability:

(1) Contracts providing for immunity for liability for negligence must be construed [*33]  strictly since they are not favorite[s] of the law . . . ; (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . .

Agric. Aviation Eng’g Co. v. Bd. of Clark Cty. Comm’rs,, 106 Nev. 396, 399400, 794 P.2d 710, 712-13 (1990) (quoting Richard’s 5 & 10, Inc. v. Brooks Harvey Realty Inv’rs, 264 Pa. Super. 384, 399 A.2d 1103, 1105 (Pa. Super. Ct. 1979)).

Here, all four requirements are met. Indeed, the majority seems to fully agree, as it does not conclude that the waiver contract is invalid or illegal, only that some dispute of facts exists regarding its meaning. So everyone agrees that the contract is valid; the only disagreement is over what it covers or does not cover.

It seems pretty clear to me that, whatever else this agreement covers, it covers what happened to Kuchta. Kuchta alleges in his lawsuit that, due to the unexpected and violent jerking of the bull, he was thrown and suffered broken bones. In other words, the appellant alleges that he suffered the exact injury (broken [*34]  bones) from the exact outcome (being thrown from the bull) caused by the exact movement (unexpected and violent jerking) expressly warned about in the waiver. Kuchta’s “parol evidence” (assuming it is any such thing) only shows that he asked for a level 2 ride, not that he asked for the waiver to only encompass a level 2 ride, so it tells us nothing about what the terms of the waiver contract were. The legal answer seems clear to me: Kuchta waived the right to sue for his injuries.

This all seems obvious under settled principles of contract law. So how does the majority come to a different conclusion? By reading Renaud v. 200 Convention Ctr. Ltd., 102 Nev. 500, 501, 102 Nev. 500, 728 P.2d 445, 446 (1986) in an astonishingly broad way that demolishes and re-writes much of existing contract law in Nevada.

V.

Based upon Renaud, Kuchta argues (and the majority agrees) that summary judgment was inappropriate. But I don’t read Renaud the way that either Kuchta or the majority do. There are two ways to read what Renaud supposedly says. The first is to read it broadly to overrule virtually the entirety of Nevada contract law in a way that requires reversal of this appeal. The second is to read it narrowly in a way that fits in quite [*35]  nicely with existing principles of Nevada contract law, but requires affirmance of this appeal. The majority chooses the former, but I think it’s the latter.

Before we get to the larger questions, here are some preliminary observations about Renaud. First, it’s a 1986 case decided under the old summary judgment standard that was expressly overruled in Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1029 (2005), under which summary judgment could only be granted if no reasonable doubt exists that the plaintiff must lose and the “truth” is “clear.” See In re Hilton Hotel, 101 Nev. 489, 492, 706 P.2d 137, 138 (1985) (overruled by Wood). Indeed, the opinion hinges on the overruled pre-Wood language: “summary judgment is appropriate only when it is quite clear what the truth is.” Renaud, 728 P.2d at 446. It seems pretty clear to me that, just because summary judgment was improper in Renaud under the old standard — a standard that made summary judgment pretty much impossible to obtain, which is exactly why it was overruled, see Wood, 121 Nev. at 729-32, 121 P.3d at 1029-31 — that says nothing about whether we should follow its reasoning under the very different standard that exists today.

Second, the facts of Renaud are quite different than the facts of this case in a way that seriously undermines its relevance. The liability waiver at issue in Renaud was a blanket one that “purported [*36]  to exculpate Flyaway of any liability for negligence that might occur while [plaintiff] was on its premises.” 102 Nev. at 501, 728 P.2d at 446. The plaintiff contended that this release failed to apprise her of any specific risk associated with the free-fall simulator that injured her, a contention that was obviously quite true as the waiver failed to identify any particular risk of injury or even mention the simulator at all. Indeed, the waiver in Renaud consisted of the very “words of general import” that the Nevada Supreme Court disapproved in the four-prong test articulated in Agric. Aviation Eng’g Co., 106 Nev. at 399-400, 794 P.2d at 712-13. Consequently, summary judgment was inappropriate (especially under the old pre-Wood standard) because a serious question existed whether the waiver apprised the plaintiff of the particular risks specifically associated with the free-fall simulator when it never even mentioned the simulator or any risks at all. There’s no other way the case could have come out (which is probably why Renaud was so unimportant that it was issued as an unsigned per curiam opinion). If a waiver fails to even mention the apparatus that caused the injury, then there exists a dispute right on the face of the waiver itself as to what risks it identifies when the [*37]  waiver itself says barely anything at all one way or the other. Under principles of contract law alone, let alone tort law, such a waiver contains a facial ambiguity necessitating the evaluation of parol evidence to determine what the contract was supposed to cover or not cover. See M.C. Multi-Family Dei, 124 Nev. at 913-14, 193 P.3d at 544-45. Thus, under either contract law or tort law, whenever a waiver is facially vague and unclear, summary judgment was inappropriate because the waiver clearly failed to apprise the plaintiff of any risks in particular.

But that’s not anything like the case at hand. In stark contrast to Renaud, the release at issue here was far from a blanket one purporting to absolve the landowner from “all” unspecified and unnamed potential liability in some vague and incredibly generic way without bothering to identify what those risks were. Rather, the release here was narrowly and specifically targeted to the mechanical bull that described its operation and listed its particular hazards in detail, including the very injuries (broken bones from being thrown) that the plaintiff actually suffered. Indeed, the waiver covered nothing but the mechanical bull, and only people wishing to ride the mechanical bull were required [*38]  to sign it; patrons wishing only to have a drink at the bar weren’t required to sign it and weren’t asked to waive anything.

So there exist very different sets of facts between Renaud and this appeal. But the question becomes what that means: does Renaud apply only to vague blanket waivers that fail to identify any particular risks, or does it articulate a standard that broadly applies to all waivers including the narrow targeted one at issue here?

VI.

Renaud observes that two things are required for a plaintiff to have assumed the risk of an injury: “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Renaud, 102 Nev. at 501, 728 P.2d at 446. To determine whether the party signing a liability waiver had actual knowledge of the risks assumed, courts must consider “the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing.” Id. at 502, 728 P.2d at 446.

The majority agrees that the first two factors strongly favor affirmance, but concludes that summary judgment is not warranted as to the third because factual disputes exist. In other words, the majority interprets [*39]  this language as a standalone three-part test that must be satisfied regardless of how detailed the language of the waiver happens to be. It becomes a test that exists apart from and outside of the contract itself, under which the words of the contract itself have no independent legal significance but are reduced to merely being one small piece of evidence among other evidence tending to prove the three prongs of the test. In addition to making it a standalone test, the majority interprets the three-part test as fundamentally factual. It becomes an inquiry focused upon what was said between the Kuchta and the ride operator regardless of what the waiver itself said or didn’t say within its four corners; and when those understandings and expectations are disputed, summary judgment cannot be granted.

Indeed, that’s how the majority order is structured: it recites the written words of the waiver on page 6, but then after launching into Renaud, it never cites those words again — they just disappear from the analysis for the rest of the order — instead only concluding that the third prong of the three-part test was factually disputed in a way having nothing to do with those words.

Well, that’s [*40]  one way to read Renaud. But it’s not how I read it, and here’s why: it deeply conflicts with long-settled principles of contract law.

Here’s the problem in a nutshell. If Renaud sets forth the standalone fact-based test that the majority proposes, then it requires the court to always, every single time, look outside of the four corners of the waiver to investigate the parties’ understandings and expectations, whether the words of the contract are ambiguous or not. And that judicial investigation must include superseded earlier negotiations that would otherwise be evidence of nothing under contract law. Maybe summary judgment could still sometimes still be granted if no dispute exists regarding that evidence; but the evidence must always be admitted and at least considered in some way whether there was any textual ambiguity in the contract or not. That’s a major re-writing of contract law, which starts with the fundamental proposition that contracts are enforced as written based upon the words contained within their four corners, and going outside of them is the exception, not the rule, an exception that only arises in the event of an ambiguity.

And there’s more. If Renaud is indeed the [*41]  standalone factual test that Kuchta proposes, then courts must always admit extrinsic evidence whether or not it qualifies as admissible “parol evidence” in contract law. Beyond that, here’s what the court would use that extrinsic evidence to do: not to clear up the meaning of an ambiguity in the text (because under this test no such ambiguity would be required as a trigger anyway), but to determine what the parties thought and expected the waiver contract to mean in the first place regardless of the words used. But this violates the idea that “[t]he making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs, not on the parties’ having meant the same thing but on their having said the same thing.” Hotel Riviera, 97 Nev. at 401, 632 P.2d at 1157 (alteration in original, internal quotation marks omitted). Here, Kuchta reads Renaud as requiring the exact opposite: courts must read contracts not according to their words, but rather according to the personal “understandings and expectations of the parties at the time of signing.” It replaces the objective test of contract law with an entirely subjective approach that focuses not upon the plain and ordinary meaning [*42]  of the words of the document that everyone signed but, instead, upon what everyone thought regardless of the written words that they agreed upon. The old rule has long been that “we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used,” Oliver W. Holmes, The Theory of Legal interpretation, 12 Harv. L. Rev. 417, 417-18 (1899), and “the words of the contract must be taken in their usual and ordinary signification,” Traffic Control Svcs., 120 Nev. at 174, 87 P.3d at 1058. But the majority’s new rule is that we ask not what words were used, but only what the parties imagined in their heads.

This is revolutionary. Make no mistake about how far-reaching this is. But it’s the only way to reverse summary judgment here, because all of the factual disputes that Kuchta (and the majority) point to lie entirely outside of the four corners of the written contract and consist entirely of a prior, superseded verbal conversation that nobody even asserts was a negotiation of the waiver contract itself. And those supposed factual disputes serve not to clarify a term of the contract, but to contradict those terms.

In short, Kuchta and the majority read Renaud as supplanting (or at least [*43]  creating an unprecedented major exception to) settled law: when it comes to liability waivers, courts do something entirely different than they’ve done with every other contract since the time of Blackstone.

That’s an incredibly broad reading of Renaud. But accepting it is the only way to reverse summary judgment in this case, because if we apply traditional contract law and stay within the four corners of the waiver itself — or, alternatively, even if we concede some kind of ambiguity but limit ourselves to parol evidence consistent with the written words in order to clarify the written words — Kuchta must lose. For what Kuchta now claims he believed about the waiver comes very close to representing the exact opposite of what its written words actually say: the written waiver says that the movements of the bull are “violent” and “unexpected” and may cause injury, but Kuchta now asserts that he had a specific expectation that the ride would be non-violent and could not cause injury.

VII.

Let’s ask a practical question: under this standard, what kind of trial will this be? The answer is: not one in which the jury will be instructed to honor the written words of the waiver contract even [*44]  if the words are clear and unambiguous. If any parol evidence is deemed admissible in the event of ambiguity, not one in which the jury will be instructed to consider only parol evidence that doesn’t flatly contradict the written words or re-write the entire contract. In sum, not one in which the words of the contract matter much at all.

Instead, the trial will consist (as the interrogatory responses and deposition testimony before us currently do) of dueling, uncorroborated, and self-serving testimony regarding a single verbal conversation that occurred years ago that was never memorialized and never referenced in any way in the final writing, one that Kuchta himself agrees was not a negotiation of the terms of the waiver. In weighing that conversation, the jury will be asked to determine not what contractual terms Kuchta agreed to and signed, but only what inner thoughts he secretly harbored at the time.

VIII.

I don’t read Renaud that way. It’s a two-page unsigned per curiam opinion, and nothing in it suggests that it was meant to broadly overrule so much clear and established law. It’s axiomatic that we do not read statutes as if Legislatures decided to “hide elephants in mouseholes.” [*45]  Whitman v. American Trucking Association, 531 U.S. 457, 468, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001). I doubt that we ought to read Renaud as if the Nevada Supreme Court intended to do exactly that.

Instead, I read Renaud as saying something much simpler that overrules nothing and fits very happily within existing tenets of contract law. Courts must determine whether a waiver warns of the risk and injury at issue, just as Renaud says they must; but they do so within the context of settled law by examining the terms of the waiver itself. If the words of the waiver contain a sufficient warning, then no extrinsic evidence is needed and the inquiry stops there because the contract must be interpreted according to the four corners of its text as a matter of law. Only if the waiver is ambiguous as to what is covered can the court go outside of the four corners of the document to examine parol evidence to clear up the ambiguity.

Renaud itself was a straightforward application of this simple idea. In it, the waiver at stake was so generically written that it fails to mention the free-fall simulator at all, much less describe any particular injuries that could occur from using it. Thus, the written contract itself was silent on whether it covered either the plaintiffs particular injury or the [*46]  risk that inflicted that injury. In that event, established principles of contract law dictate that the written waiver could either be read as ambiguous regarding whether it covered the free-fall simulator, or it could also be read, as a matter of law, as not covering the free-fall simulator. In the first instance, parol evidence must be considered to resolve the ambiguity and, in the second instance, any evidence of a waiver, if there was one, must exist entirely outside of the written contract in the form of an oral contract. Either way, and especially under the old pre-Wood standard for granting summary judgment, summary judgment was not warranted because no such evidence had been presented or considered.

So I read Renaud not as some sweeping and revolutionary holding inconsistent with contract law in any way, but as a simple and straightforward application of clearly established law. If a waiver is so poorly worded or generic as to be ambiguous, then summary judgment cannot be granted absent consideration of parol evidence. On the other hand, if the written waiver is sufficiently clear and precise that its terms convey that there was “voluntary exposure to the danger as well as [*47]  actual knowledge of the risk assumed” — including that “the nature and extent of the injuries” were of the kind warned about in the waiver, and the ‘understandings and expectations of the parties at the time of signing” are clearly conveyed in the document — then the only question presented is one of contract interpretation (a question of law). If the written words meet all of these tests, then as a matter of law the waiver operates to bar any claim arising from any injury specifically warned of in the waiver. Renaud, 102 Nev. at 501, 728 P.2d at 446.

Consequently, summary judgment was properly granted in this case. The waiver is specific and precise, there are no ambiguities in it, and it covered the very injuries suffered by the very means warned about in the waiver. I would conclude as a matter of law that summary judgment was properly granted as the only question before us is one of contract interpretation, which presents a pure question of law. The only factual “disputes” that appellant cites relate to inadmissible extrinsic evidence lying outside of the contract that both pre-dates and contradicts the writing, and therefore are neither “genuine” nor “material.” See Wood, 121 Nev. at 731, 121 P.3d at 1029 (“A factual dispute is genuine when the evidence is [*48]  such that a rational trier of fact could return a verdict for the nonmoving party.”). See
NRCP 56 (summary judgment warranted when plaintiff not “entitled to judgment as a matter of law”). I would affirm and respectfully dissent.

/s/ Tao, J.

Tao


Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Between a poorly written release, an Equine statute that requires proof the rider assumed the risk and the “cavalier” attitude of the defendant; the plaintiff will proceed to trial.

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Wilberto Melendez

Defendant: Happy Trails and Riding Center, Inc.

Plaintiff Claims: Negligence and Recklessness

Defendant Defenses: Release and Pennsylvania Equine Liability Protection Act

Holding: For the plaintiff

Year: 2016

The plaintiff was part of a group ride. Upon arrival he was told, he had to sign a release which he did. At the office where the plaintiff signed, the release signs were posed as required by the Pennsylvania Equine Activities Immunity Act. During the ride, the plaintiff asked the guides if he could gallop the horse and was told no several times. Eventually at the end of the ride, the plaintiff was allowed to gallop his horse.

Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail. At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.

While galloping the horse, the stirrup broke causing the plaintiff to fall incurring injuries.

The defendant filed a motion for summary judgment based on the release signed by the plaintiff and the Pennsylvania Equine Activities Immunity Act. The court denied the motion because the issue of the stirrup breaking could be considered reckless under Pennsylvania law.

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

The decision first looks at releases or exculpatory agreements under Pennsylvania law.

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.

Under Pennsylvania, the language of the release must be clear in relieving notifying the possible plaintiff, he or she is releasing the defendant of negligence. “However, a valid exculpatory clause will nevertheless, be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”

As in most states, releases are not favored and must conform to contract law. However, the term “not favored” is a term of art rather than a term used to determine if the release will be valid.

Contracts immunizing a party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.”

In that regard Pennsylvania, courts have set up standards on how releases will be governed.

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by ex-press stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing immunity is upon the party invoking protection under the clause.

As in most other states, Pennsylvania does not allow a release to relieve a defendant for intentional or reckless acts. “Further, exculpatory clauses may not immunize a party for intentional or reckless behavior.

The plaintiff did not argue that the release was not valid. The court reviewed the release on its own and find it valid.

First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them.

Second, the agreement was between two private parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

The court also found Pennsylvania law allowed the use of releases for inherently dangerous activities. Horseback riding in Pennsylvania is an inherently dangerous activity.

The plaintiff’s argument centered on the inherent risks of horseback riding. Inherent, a limiting word, defines the risks that are part of horseback riding no matter what. Inherent risks are part of horseback riding and can rarely be reduced or modified by someone because of the horse. However, there are more than just inherent risks in any activity and the plaintiff argued that a stirrup breaking was not an inherent risk and not covered by the release or the statute.

How the bridle or saddle is attached to the horse is under the control of the stable, thus not an inherent risk of horseback riding in must states. How the horse responds; maneuvers or acts is an inherent risk of riding a horse.

Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment.

Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could not appreciate the risk and could therefore not assume it.

(For other articles on the use of “inherent” in a release see: Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release and 2015 SLRA – Inherent Risk: Should the Phrase be in your Release?)

The court looked at the issue and rephrased it to a contract analogy. A contract must state the intention of the parties. A release is a contract.

…the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before.

The court then looked at the issue and found that defective equipment was not an inherent risk of horseback riding. This means if you use the term “inherent risk” in your release to describe all of the risks, claims based defective equipment would not be covered by your release in Pennsylvania. However, the release in this case was written broadly so it was not an issue.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.”

Pennsylvania courts have held that a release protects against claims for inherent as well as non-inherent risks if written to include those risks, and this release was written broadly.

The plaintiff argued the release should be read narrowly because the release did not identify defective equipment as a risk to be covered. However, the court found that every risk needs not be reviewed or identified in a release.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory agreement. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use.

The next point the plaintiff argued was the actions of the defendant amounted to recklessness and as such voided the release. The court defined recklessness under Pennsylvania law as:

Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”

Pennsylvania uses the term recklessness to define acts of the defendant that exceed the scope of a release. The majority but not all states use the term gross negligence.

This argument the court did accept. The court found that it was the defendant’s responsibility to inspect the equipment, and the defendant could not provide any evidence of any inspection.

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident.

The court on this same topic went on looking at the facts to determine other reckless acts of the defendant. In that review, the court added a comment about the attitude of the defendant/owner of Happy Trails and described his attitude as “cavalier.”

He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness

Finding a lack of knowledge about the age or condition of the defendant’s equipment, no record of inspecting or maintaining the equipment and the attitude of the defendant allowed the court to reach a conclusion that the actions of the defendant would be found by a jury to be reckless. As such, a motion for summary judgment could not be granted if there were “genuine dispute as to any material fact.”

The next issue was the application of the Pennsylvania Equine Activities Immunity Act to the case. The court could find no other case law in Pennsylvania that looked at the application of the Pennsylvania Equine Activities Immunity Act to defective equipment. Consequently, the court had to interpret the statute to see if the language of the statute covered defective equipment.

The Pennsylvania Equine Activities Immunity Act like most equine liability protection acts provides immunity to horse owners, stables, etc., for the actions of the animals. (Since Equine Acts have been created, they have been 100% effective. No horses have been sued. Lawsuits against horse owners have increased.) However, the Pennsylvania statute places a burden on the stable or horse owner to prove knowledge of the risk for the immunity to apply.

Most equine protection acts are written to say that when on a horse, or at places where horses, llamas, mules, etc., are, you assume the risk of the actions of the animal. By assuming the risk, the defendant owner is immune from liability for the plaintiff’s injuries. The Pennsylvania statute is different. The Pennsylvania statute states “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.”

This requirement puts a burden upon the horse owner to provide additional education to the rider.

The court looked at the definition of assumption of risk as defined in the Restatement of Torts, which found four different definitions or as the Restatement defines them doctrines of assumption of the risk.

The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.”

The first type of assumption of risk the court found that applied here was express assumption of risk. Express assumption of risk occurs when the plaintiff has consented to the risk. Usually, this consent is given by writing, if written property as part of a release.

The second type applicable in this case was implied assumption of the risk. Implied assumption of the risk has no exactness to the risk assumed. The plaintiff knows there is risk, and the defendant hopes the plaintiff knows of the explicit risk that may injure the plaintiff or that caused the plaintiff’s injuries. If the plaintiff had no knowledge of the risk, then the plaintiff cannot assume the risk.

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”

In this case, there was no evidence that the plaintiff knew of the risk. That risk was of equipment failure that the stirrup would break. Consequently, the plaintiff could not assume the risk.

Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.”

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge.

Because the risk that injured the plaintiff was outside of the risks assumed by the plaintiff, the defense of assumption of the risk did not apply. As such, the Pennsylvania Equine Activities Immunity Act did not provide the defendant with any protection.

With the release not valid and the Pennsylvania Equine Activities Immunity Act not providing any protection both defenses of the defendant failed. The defendant’s motion for summary judgment was denied.

So Now What?

This case would not have meant anything if the plaintiff had simply fallen off the horse. Both the release and the Pennsylvania Equine Activities Immunity Act would have prevented recovery if a claim had even been made.

But broken equipment always creates a different issue. Here it created an issue of whether the actions of the defendant were reckless and proved the plaintiff did not assume the risk.

Another important issue is courts put into their decision the facts they find persuasive or at least interesting.  There were several facts in the decision that did not alter or affect the decision on its face, but important enough for the court to identify them anyway. I always find these facts as instructional and a good indication of something that was not enough for the judge to argue but important anyway.

I also believe that they may not have any legal value, but if written into the decision by the judge, they had to have an impact on the judge’s thinking, and consequently, those issues did affect the outcome of the case.

In this decision those facts included:

After his group arrived, Plaintiff went into the stable’s office to register. Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part….

Combined with the next sentence:

An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. Plaintiff signed the agreement.

Meaning, the plaintiff was not told in advance he was going to be required to sign a release.

Another one was the plaintiff being told galloping was too dangerous yet he was eventually allowed to gallop his horse.

On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail.

Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.

If galloping the horse was too dangerous earlier, what changed? More importantly, galloping the horse led to the broken stirrup which led to the injury.

And then there are the straight out in your face statements a court rarely makes.

Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal.

If this statement or something like it has been at the beginning, you would have known immediately that the defendant was going to lose. Never walk into a courtroom looking like the bad guy and never give the court proof, such as this, that you are.

For other Equine Liability Act articles see:

$1.2 M award in horseback riding fatality in Wyoming                                     http://rec-law.us/1fE4ncB

$2.36 M awarded to boy kicked by horse during inner-city youth program   http://rec-law.us/1lk7cTP

A specific statute, a badly written release and an equine liability statute sink instructors and business in horse riding accident.                                                                                             http://rec-law.us/SJZCkU

Decisive Supreme Court Decision on the Validity of Releases in Oklahoma                      http://rec-law.us/19gxvkT

Equine laws stop suit against horse, outfitter still sued                                    http://rec-law.us/XjgJvw

Good News ASI was dismissed from the lawsuit                                               http://rec-law.us/131HKWH

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release         http://rec-law.us/1nvfCV5

Hawaii’s deceptive trade practices act sends this case and release back to the trial court                                                                                                                                                http://rec-law.us/Z3HdQj

Indiana Equine Liability Statute used to stop litigation                                     http://rec-law.us/12UFp1N

Lying in a release can get your release thrown out by the court.                   http://rec-law.us/11ysy4w

Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant                                                             http://rec-law.us/1ZicaQs

Parental control: should you, are you accepting responsibility for kids and when you should or can you not.                                                                                                                             http://rec-law.us/1fteMth

Release saves riding school, even after defendant tried to show plaintiff how to win the case.  http://rec-law.us/14DC7Ad

What do you think? Leave a comment.

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Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Wilberto Melendez, Plaintiff, v. Happy Trails and Riding Center, Inc., Defendant.

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

CORE TERMS: trail, summary judgment, exculpatory, recklessness, equine, stirrup, stable, immunity, genuine, horse, horseback riding, recreational, animal, material fact, skiing, ride, assumption of risk, faulty, broken, ski, rider, inherent risk, exculpatory clause, riding, sport, skier, enumerate, counter, rental, entity

COUNSEL:  [*1] For Wilberto Melendez, Plaintiff, Counterclaim Defendant: Robin A. Feeney, LEAD ATTORNEY, FINE & STAUD LLP, PHILADELPHIA, PA.

For Happy Trails and Riding Center, Incorporated, Defendant, Counterclaim Plaintiff: Dennis M. Marconi, Barnaba & Marconi, LLP, Trenton, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

On September 30, 2014, Plaintiff, Wilberto Melendez, filled a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, lnc.1 (Doc. 1). The Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of fact discovery, Defendant filed a Motion for Summary Judgment (Doc. 19) and supporting brief (Doc. 20) on October 29, 2015. Plaintiff filed a Brief in Opposition (Doc. 22) and Defendant filed a Reply. (Doc. 23). Oral argument on the matter was held on April 4, 2016.

1 Defendant points out that the business is owned and operated by Randolph Bennett, d/b/a Happy Trails Stables, and was incorrectly pleaded as Happy Trails Riding [*2]  Center, Inc. For the purposes of this motion, the error, if any, is immaterial and the opinion will refer to Defendant as “Defendant” or “Happy Trails.”

The motion is now ripe for decision. For the reasons set forth below the Court will deny Defendant’s motion in its entirety.

II. Statement of Undisputed Facts

In accordance with Local Rule 56.1, Defendant submitted a Statement of Material Facts in Support of its Motion for Summary Judgment, (Doc. 20), as to which it contends that there is no genuine dispute for trial. Plaintiff submitted a response, a Counter Statement of Facts, (Doc. 22), with the result being that the following facts have been admitted, except as specifically noted:

Plaintiff, Wilberto Melendez, went to Defendant’s stable on May 31, 2014, for the purpose of going horseback riding. (Doc. 20, ¶¶ 1, 2). After his group arrived, Plaintiff went into the stable’s office to register. (Id. at ¶ 5). Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part:

AGREEMENT FOR PARTICIPATION AND\OR VOLUNTEERS [sic] I RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE [sic] OF RISK:

IN CONDERATION [sic] FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT [*3]  OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING, AND ALL RELATED ACTIVITIES.

….

1. I understand and acknowledge that the activity I am voluntarily engage [sic] in as a participant and/or [sic] bears certain know [sic] risk [sic] and unanticipated risks which could result in jury, [sic] death, illness, or disease, physical or mental, or damage to myself, to my property, or to spectators or other third parties. I understand and acknowledge those risk [sic] may result in personal claims against “HAPPY TRAILS STABLES” or claims against me by spectators or other third parties.

1. [sic] The nature of the activity itself, including the possible risks to you the rider.

A. The animal may be startled by unforeseen or unexpected noises from other animals, people, vehicles, activities and as a result you the rider may be hurt or injured should the animal react to said noises or activity, by running, bucking, rolling, or kicking, etc.

B. That you as the rider realizes [sic] that the animal is reacting to your physical instructions, conduct, and verbal instructions and commands, and therefore, the animal will respond in accordance with your reactions or commands. However, there are [*4]  times when the animal may be confused or distracted during course [sic] of your instructions and/or commands.

C. You the rider understands [sic] that an animal may kick or bite you the rider, or you the pedestrian, and that other animals which may be on tour, could kick or bite you the rider and/or pedestrian.

D. You the rider are aware that physical conditions of the trails may cause injury or risk to you, should these physical conditions such as low tree limbs, bushes, or other type of natural growth come in contact with animal [sic] or yourself.

2. I hereby release and discharge Happy Trails Stables, instructors, trail guides, stable managers, employees, owners of the horses and related equipment and land utilized for Happy Trails Stables activities, hereinafter referred to as the “Released Parties,” from any and all claims, demands, or cause of action that I, or any of my heirs, successors or assigns, [sic] may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence of the released parties.

3. I further agree that I, my heirs, successors, or assigns, [sic] will not sue or make claim [*5]  against the Released Parties for damage or other loses sustained as a result of my participation in Happy Trails activities.

….

4. I understand and acknowledge that Happy Trails activities have inherent dangers that no amount of cares, [sic] caution, instruction, or expertise can eliminate and I expressly and voluntarily assume all risk of personal injury or death sustained while participating in “Happy Trails Stables” activities weather [sic] or not caused by negligence of the Released Parties ….

….

6. I hereby expressly recognize that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence of the Released Parties. I also assume the risk of the equine activities pursuant to the [sic] Pennsylvania law.

(Id. at ¶¶ 5, 11; Doc. 20-7) (emphasis original). An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. (Doc. 20, 5). Plaintiff signed the agreement. (Id. at ¶ 8). In addition to the agreement, there were signs posted inside the office, outside [*6]  the office, and by the stable which read “You assume the risk of equine activities pursuant to Pennsylvania Law.” (See id. at ¶¶ 12-15; Doc. 20-8).

After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. (Doc. 20, ¶ 17). Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. (Id. at ¶¶ 19, 21). On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. (Id. at ¶¶ 22, 23). Plaintiff was told it was too dangerous to do on the trail. (Id.). At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. (Id. at ¶ 26). Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal. (id. at ¶¶ 27-29).

Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. (Doc. 22 at 1). Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax. (Id. at 3).

III. Standard of Review

Through summary adjudication, the court may dispose of those [*7]  claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality, ….[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record…or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences [*8]  should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

IV. Analysis [*9]

Plaintiffs complaint alleges that Defendant was negligent in providing broken or defective equipment–the stirrup–to Plaintiff, which directly resulted in his injury. (Doc. 1, ¶ 20). Defendant puts forth two arguments that it maintains are separate and independent grounds for summary judgment. First, Defendant argues that the agreement that Plaintiff signed prior to the horseback ride insulates Defendant from liability under these facts. (Doc. 20 at 9). Second, Defendant argues that, pursuant to 4 P.S. §§ 601-606 (hereinafter “Equine Activities Immunity Act,” “EAIA,” or “the Act”), Happy Trails is immune from liability as a provider of equine activities. (Id.).

A. Exculpatory Agreement

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)). However, a valid exculpatory clause will nevertheless be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. (quoting Topp Copy Prods., 626 A.2d at 99). Contracts immunizing a [*10]  party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (Pa. 1963). Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing immunity is upon the party invoking protection under the clause.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1196 (Pa. 2012) (quoting Topp Copy Prods., 626 A.2d at 99). Further, exculpatory clauses may not immunize a party for intentional or reckless behavior. Id. at 1202-03.

Defendant contends that the agreement Plaintiff signed is valid, enforceable, and encompasses broken equipment. (Doc. 20 at 13-16). Therefore, Defendant argues, Plaintiffs negligence [*11]  claim is barred and Happy Trails is entitled to summary judgment. (Id. at 16).

Plaintiff does not appear to argue that the agreement is not valid on its face. Nor should he, considering that the agreement easily satisfies the validity requirements under Chepkevich. First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them. Cf. Chepkevich, 2 A.3d at 1191 (finding that, in light of a statute that preserves the assumption of risk defense in the context of downhill skiing, it is “the clear policy of this Commonwealth . . .to encourage the sport and to place the risks of skiing squarely on the skier.”). Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities. See, e.g., id. (downhill skiing); Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110, 113-14 (Pa. Super. Ct. 2007) (snow tubing); Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492, 492-93 (Pa. Super. Ct. 1985) (auto racing); Nissley v. Candytown Motorcycle Club, Inc., 2006 PA Super 349, 913 A.2d 887, 889-91(Pa. Super. Ct. 2006) (motorcycle riding).

Second, the agreement was between two private [*12]  parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. See Chepkevich, 2 A.3d at 1190-91 (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment. (Doc. 22 at 11). Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. (Id. at 12-13). Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could [*13]  not appreciate the risk and could therefore not assume it. (Id. at 13).

Plaintiffs argument essentially states that the second element from Tayar –that “the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before. See Chepkevich, 2 A.3d at 1193-94.

In Chepkevich, a skier, Lori Chepkevich, sued a ski resort after she fell from a ski lift and was injured. Id. at 1175-76. She claimed her injury occurred because an employee promised to stop the ski lift briefly to allow Chepkevich to help a child board the lift and then the employee failed to do so. Id. Prior to the accident, Chepkevich had signed a document titled “RELEASE FROM LIABILITY” which stated, in pertinent part,

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to [certain enumerated risks]…. I agree to accept all these risks and agree not to sue Hidden Valley [*14]  Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 1176. The Pennsylvania Supreme Court first rejected Chepkevich’s argument that she did not assume the specific risk that caused her injury and instead found that a fall from a ski lift was an inherent risk in the sport of skiing. Id. at 1188. Therefore, the Court found that the suit was barred by the Skier’s Responsibility Act, 42 PA. Cons. Stat. Ann. § 7102(c), which preserves the common law assumption of the risk defense in the context of downhill skiing. Chepkevich, 2 A.3d at 1187-88.

Turning to an alternative ground for summary judgment–the release–the Chepkevich Court held that the term “negligence” did not require any definition or illustration to be given effect. Id. at 1193. Indeed, reversing the court below on that point, the Court found “no reason to require the drafters of exculpatory releases to provide definitions and context for commonly used terms such as ‘negligence.”‘ Id. The Court then found that the plain language of the release encompassed Chepkevich’s claim for negligence and therefore barred the claim. Id. at 1194-95. Because the Court had already found that the risk involved was inherent, the Court found it unnecessary to address the merits of Chepkevich’s [*15]  final argument “that the Release exempted Hidden Valley from liability only when its negligence gave rise to a risk otherwise inherent to the sport of skiing.” Id. at 1193-94.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.” Nissley, 913 A.2d at 892 (footnote and internal citations omitted). Thus, as long as the language of the exculpatory agreement applies, any inherent risk analysis is superfluous. The fact that the court in Chepkevich found it unnecessary to its holding to address the plaintiffs argument that non-inherent risks cannot be released in exculpatory agreements does not affect this analysis. As that court saw no need to overturn the language in Nissley, this Court sees no reason not to follow it.

As for enforceability of the agreement, in the realm of recreational [*16]  activities, Pennsylvania has upheld expansive language in exculpatory agreements. See, e.g., Nissley, 913 A.2d at 890-91 (upholding motor cycle club’s exculpatory agreement in a negligence action when the release stated that plaintiff “hereby give[s] up all my rights to sue or make claim”); Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. Ct. 1978), aff’d per curiam, 416 A.2d 1010 (1980) (upholding ski rental shop’s exculpatory agreement in a negligence action when the release stated that skier released defendant from “any liability”); Valeo, 500 A.2d at 492-93 (upholding race track’s exculpatory agreement in a negligence action where race car driver signed an agreement releasing “defendants ‘from all liability …for all loss or damage'”).

Here, Plaintiff signed an agreement that he knew to be a waiver. (Doc. 20-2 at 51-53; Doc. 20-7). Paragraph two of the agreement stated that Plaintiff released Happy Trails “from any and all claims, demands, or cause of action that I…may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence.” Further, paragraph six states that Plaintiff “hereby expressly recognize[s] that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the [*17]  Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence.” Plaintiff has alleged that Defendant was negligent in providing him defective equipment during his trail ride. The plain language of the agreement signed by Plaintiff releases Defendant from “all claims” including those “caused by negligence.” Thus, Plaintiffs claim, in as much as it is alleging that Defendant acted negligently, is encompassed by the exculpatory language of the agreement and therefore barred.2

2 This Court notes that there is some language in Chepkevich that seems to support Plaintiffs argument. As an aside, the Chepkevich Court states that “the risk [in this case] was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release.” Chepkevich, 2 A.3d at 1194. Plaintiff has pointed out that a broken stirrup is a very uncommon, and therefore unexpected, occurrence. (Doc. 22 at 12-13). Nevertheless, because Chepkevich does not give any standards for what type of risks fall beyond the realm of the plain language of an exculpatory agreement, this Court must turn to other cases. This Court finds  [*18]  Zimmer v. Mitchell and Ness  instructive.

In Zimmer, a skier, Joseph Zimmer, sued a ski rental company after the bindings on the skis he rented failed to release as they were supposed to during a fall, causing him substantial injury. Zimmer, 385 A.2d at 438. Zimmer argued that the rental company was negligent in renting him skis without testing and fitting the bindings. Id. at 440. The court granted the ski rental company’s motion for summary judgment based on an exculpatory agreement that Zimmer signed when he rented the skis that released the rental company “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment.” Id.

Thus, while the specific issue of a broken stirrup may be very uncommon, Pennsylvania courts have enforced exculpatory agreements in the case of a released party negligently providing the releasing party with defective or broken equipment.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory [*19]  agreement. See Chepkevich, 2 A.3d at 1193. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use. Plaintiff agreed to release Defendant from “all claims” including those that arose from Defendant’s negligence. Plaintiff cannot now protest that he did not know what “all claims” included.3

3 At oral argument, Plaintiff advanced a slightly different argument. Plaintiff argued, in effect, that because paragraph one of the agreement enumerates risks associated with horseback riding, the rest of the agreement is limited to those enumerated lists. This argument was also advanced in Chepkevich. See Chepkevich, 2 A.3d at 1194. There, the court rejected the plaintiff’s argument that “by enumerating risks inherent to downhill skiing and then requiring the skier to accept those risks, the Release only bars suits that arise out of the listed risks.” Id. The court found that the release, which stated that skiing “is a dangerous sport with inherent and other risks,” was not limited to the enumerated the risks, but clearly included “other risks.” Here, as in Chepkevich, Plaintiff’s argument [*20]  fails on textual grounds. It is true that the agreement, in paragraph one, lists some risks inherent to horseback riding. However, in paragraph two and six, the agreement states that Plaintiff relinquishes “any and all claims.” There is no limiting language in paragraph two or six that would indicate that Plaintiff was only relinquishing claims arising out of the enumerated risks in paragraph one.

Plaintiff finally argues that Defendant’s conduct amounts to recklessness and exculpatory agreements cannot immunize reckless conduct. (Doc. 22 at 14); see Tayar, 47 A.3d at 1202-03. Defendant concedes that the agreement only releases it from suits for negligence, not recklessness, and counters that its “conduct at most amounts to ordinary negligence.” (Doc. 23 at 10). “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar, 47 A.3d at 1200.

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [*21]  man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Id. at 1200-01 (quoting Restatement (Second) of Torts § 500).

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. (Doc. 22-5 at 35-36, 39-40). It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident. (Id. at 13, 53-55, 58, 60). Happy Trails’ owner testified that he bought used saddles on the internet and also from individuals who walk into his business. (Id. at 18). He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. (Id. at 18-19, 58, 60). Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards [*22]  safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. (Id. at 32-33). Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness.

Defendant goes on to argue that Plaintiff failed to plead recklessness and that if “recklessness is the standard to apply in this case, plaintiffs compliant must be dismissed with prejudice.” (Doc. 23 at 10). This argument, however, runs counter to the holding in Archibald v. Kemble, 2009 PA Super 79, 971 A.2d 513 (Pa. Super. Ct. 2009).

Archibald involved a lawsuit stemming from Robert Archibald’s participation in a “no-check” adult hockey league. Id. at 515. In his complaint, Archibald alleged that another player, Cody Kemble, checked him into the boards of the ice hockey rink. Id. The complaint went on to say that

Cody Kemble’s negligence consisted of the following:

a. failing to assure that Robert Archibald was aware and/or warned that the check was going to be attempted before checking him into the boards;

b. failing to assure that Robert Archibald was willing [*23]  to be checked;

c. checking Robert Archibald when not safe to do so;

d. failing to understand and learn the rules, prohibition and limitation on any checking prior to participating in the non-checking league and game.

Id. at 516. First determining that Archibald would only be able to recover if he showed that Kemble acted recklessly, the Court went on to hold that recklessness “may be averred generally.” Id. at 517, 519. Thus, “merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations.” Id. at 519. Instead, “Archibalds’ cause of action was…subsumed within the negligence count pled in their Complaint.” Id.; see also M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 629 (E.D. Pa. 2015) (construing a separately pleaded recklessness claim “simply as a mechanism to recover punitive damages under [the] negligence claim” because “[t]here is no cause of action for recklessness under Pennsylvania law” and “recklessness is a heightened standard of care required to potentially recover punitive damages”).

Consequently, under Archibald, the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim. In his Complaint, Plaintiff alleged that, among other things, [*24]  Defendant “provid[ed] equipment or tack that defendant knew or should have known was faulty.” This statement encompasses the allegation that Defendant recklessly provided Plaintiff with defective or faulty equipment. The fact that Plaintiffs Complaint does not contain the word “reckless” is immaterial.

In sum, because the agreement that Plaintiff signed is only enforceable to immunize Defendant for its negligence, and not for its recklessness, and because there is a genuine dispute as to the material fact of whether Defendant acted recklessly in this case, the Court finds that the agreement is not a sufficient basis for summary judgment.

B. Equine Activities Immunity Act

Defendant next points to the Equine Activities Immunity Act, 4 P.S. §§ 601-606, as an alternative, independent basis for summary judgment. The EAIA limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that, as a provider of a qualifying equine activity who has complied with the EAIA’s statutory requirements, it is entitled to immunity from suit. (Doc. 20 at 10-11). Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside of the EAIA’s [*25]  protections. (Doc. 22 at 4).

The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such, this Court must engage in statutory interpretation. For this Court to interpret state law, it “must determine how the highest court of the State would decide an issue.” Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 249, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Pennsylvania interprets statutes according to the Statutory Construction Act of 1972, 1 Pa.Cons. Stat. Ann. §§ 1501-1991. “When interpreting statutory language, the Pennsylvania Supreme Court is guided by the ‘plain meaning’ rule of construction.” Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 371 (3d Cir. 1996) (citing Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 587 (Pa. 1982)). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa. Cons. Stat. Ann. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b).

The EAIA provides immunity for “an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity” including “[r]ecreational rides or drives which involve riding or other activity [*26]  involving the use of an equine.” 4 P.S. §§ 601, 602(b)(6). The EAIA, however, only provides immunity where signs of at least a certain size are “conspicuously posted on the premises…in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.” Id. at § 603. For covered entities in compliance with the signs requirement, “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.” Id. at § 602(a). Finally, the Act is clear that “[t]he immunity provided for by this act shall be narrowly construed.” Id. at § 606.

Plaintiff does not argue that Defendant, as a provider of recreational horseback riding activities, is not a covered entity under the statute. Additionally, Plaintiff does not argue that Defendant did not have the appropriate signs as prescribed under the EAIA. Plaintiffs sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment. (Doc. 22 at 6). Stated otherwise, Plaintiff argues that because he did not know he might be given defective or faulty [*27]  equipment, he could not knowingly assume the risk of such. Defendant counters that “[o]nce plaintiff entered the stables property and took part in recreational horse riding, he assumed the risk of harm associated with such activities.” (Doc. 20 at 11).

The EAIA states that “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.” 4 P.S. § 602(a). The Act, therefore, appears to preserve the common law assumption of risk doctrine in the context of equine activities. In delineating the contours of this doctrine, the Pennsylvania Supreme Court has looked to the Restatement Second of Torts. See Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341-42 (Pa. 2000). The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. See Restatement (second) of Torts § 496A cmt. c. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has [*28]  entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Id. (emphasis added).

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” Rutter v. Ne. Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1204 (Pa. 1981) (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”‘ Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 532 (Pa. Super. Ct. 1988) (alteration in original) (quoting Crance v. Sohanic, 344 Pa. Super. 526, 496 A.2d 1230, 1232 (Pa. Super. Ct. 1985)); See also Restatement (second) of Torts § 496D.4 Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996) (citing Struble v. Valley Forge Military Acad., 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. Ct. 1995)). Finally, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 572 (Pa. Super. Ct. 2000).

4 Of course, a plaintiff’s own assertion about whether he knew of and understood [*29]  the risk is not conclusive.

There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height, in the absence of any special circumstances which may conceal or appear to minimize the danger.

Restatement (Second) of Torts §496D cmt. d.

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could be inferred. The owner of Happy Trails testified that, in the approximately ten years he operated [*30]  the stable, he never remembered a single stirrup breaking. (Doc. 20-3 at 20-21). Given that it is not a common occurrence, it strains credibility to argue that a recreational participant would know that being provided broken equipment was likely.

Therefore, because there has been no showing that Plaintiff knew of the risk and voluntarily disregarded it, the EAIA provides no relief for Defendant.5

5 At oral argument, counsel for the Defendant conceded that, even under the broad interpretation of the Act that Defendant argued for, the Act would not immunize a covered entity for acts of recklessness or gross negligence. As this Court has already found that there is a genuine dispute as to the material fact of whether the Defendant acted recklessly, this provides an alternative ground for the finding that the Act does not provide immunity under these facts.

V. Conclusion

For the reasons stated above, the Court will deny Defendant’s Motion for Summary Judgment (Doc. 19). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW, THIS 26th DAY OF SEPTEMBER, 2016, upon consideration of Defendant’s Motion for Summary Judgment (Doc. 19), IT IS HEREBY ORDERED [*31]  THAT:

1. Defendant’s Motion for Summary Judgment (Doc. 19) is DENIED.

2. A telephone scheduling conference will be held on Wednesday, October 5, 2016, at 4:00 p.m. Counsel for Plaintiff is responsible for arranging the call to (570) 207-5750, and all parties should be ready to proceed before the undersigned is contacted.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge