New York case looks whether plaintiff could read and understand the agreement and held for the defendant.Posted: October 29, 2012
Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
The court also looked at the arbitration clause in the release and found it required arbitration.
This is another short New York Decision that was decided by the New York Appellate Court. The plaintiffs sustained an unknown injury while attending or staying at the defendant’s camp facility. The plaintiffs filed a complaint, and the defendants moved to compel arbitration as required in the application.
Summary of the case
The lower court denied the defendant’s motion to compel arbitration, and the defendant appealed. The plaintiff argued three theories on why the arbitration clause did not apply to them.
The first was a “language barrier” kept the plaintiffs from understanding what they were signing and that there was an arbitration clause. The court held the parties were bound by the agreement, including the arbitration clause even though they did not understand it.
The second was only the husband signed the agreement. The wife argued the husband could not sign for her. However, the court held the wife was bound by the agreement because the husband at the very least had apparent authority to sign for her. Apparent authority is an agency type of argument where by the actions of one party acting on behalf of the other party the defendant relied on the actions believing the first party had authority to act for the second party. The second party also took advantage of the benefits of the agreement or failed to reject the agreement and therefore, cannot reject the agreement now or say the first party could not sign on their behalf.
If you act like you are responsible and no one questions your authority, including the person you say you are responsible of, you are responsible.
The final argument put forth by the plaintiff was the agreement compelled arbitration by the Commercial Rules of the American Arbitration Association, and the claims of the plaintiffs were personal not commercial. Here the court found the argument failed because the agreement said the parties had to arbitrate any dispute between them.
So Now What?
The first thing that caught my eye was the plaintiffs did not understand the agreement, but understood enough English to get an attorney.
Arbitration is cheaper, faster and normally arbitrators can only award limited damages. Arbitration is usually a great idea. Always combine arbitration with mediation. The parties to an agreement must mediate their dispute first. If that does not work, then they can arbitrate.
Arbitration may have one downfall, and that would be in a state that supports releases. Arbitration is cheaper than a trial; it still usually ends up awarding the plaintiff some money. If your release is solid, you may want to avoid arbitration and rely on your release. It could be faster and probably cheaper. However, it is always a toss-up that you should review with your attorney.
The other point is the plaintiff signed the agreement with a language barrier. This different from signing and not reading the agreement or arguing you did not understand the agreement which courts always throw out. This is a great decision. Whether or not you can rely on it in your state is still, I suspect, up in the air.
However, this is a start.
What do you think? Leave a comment.
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Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396Posted: October 29, 2012
Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
Roza Ayzenberg, Plaintiff-Respondent-Appellant, v Bronx House Emauel Campus, Inc., etc., Defendant-Appellant-Respondent.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
March 29, 2012, Decided
March 29, 2012, Entered
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
COUNSEL: [***1] Mound Cotton Wollan & Greengrass, Garden City (Rodney E. Gould of counsel), for appellant-respondent.
Hill & Moin, LLP, New York (Cheryl Eisberg Moin of counsel), for respondent-appellant.
JUDGES: Mazarelli J.P., Andrias, Moskowitz, Acosta, Abdus-Salaam, JJ.
[*607] [**107] Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 13, 2011, which denied defendant’s motion to stay the proceeding and compel arbitration pending further discovery, unanimously reversed, on the law, without costs, the motion to compel arbitration granted, and the action stayed.
In this action for personal injuries allegedly suffered by plaintiff while she and her husband were guests at defendant’s camp facility, defendant moved to stay the proceeding and compel arbitration based on an arbitration clause contained in the application for defendant’s camp program that was filled out by plaintiff’s husband and bears his signature. We find that the arbitration clause is binding on plaintiff. Irrespective of whether there [**108] was a language barrier that precluded plaintiff and her husband from understanding the content of the application, they are bound by its enforceable terms (see Shklovsky v Kahn, 273 AD2d 371, 372, 709 N.Y.S.2d 208 ). [***2] Although plaintiff’s husband signed the application, which provided for the couples’ joint participation in defendant’s program, plaintiff is bound by it since her husband had, at the very least, apparent authority to sign for her (see Restatement, Agency 2d,§ 8 and § 27).
Plaintiff’s assertion that the arbitration clause does not apply to this personal injury action because it provides for the submission of claims “pursuant to the Commercial Rules of the American Arbitration Association,” is unavailing. The clause provides for arbitration of “any dispute resulting from [their] stay at” defendant’s facility (italics supplied), and thus, this matter is not excluded (see Marmet Health Care Center, Inc., et al. v Brown, US , 132 S Ct 1201, 182 L. Ed. 2d 42 ; see also Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477, 925 N.Y.S.2d 30 ).
Contrary to plaintiff’s argument, we find that the sale/purchase of the services defendant provided constitutes a transaction “involving commerce” within the meaning of the Federal Arbitration Act (see Citizens Bank v Alafabco, 539 U.S. 52, 56, 123 S. Ct. 2037, 156 L. Ed. 2d 46 [*608] ). Thus, we find that to the extent GBL § 399-c may prohibit the subject arbitration clause, it is preempted [***3] by federal law.
We have reviewed plaintiff’s remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 29, 2012
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Cole v. Boy Scouts of America, 2011 S.C. LEXIS 383
Karen Cole, as Guardian ad litem for David C., Appellant, v. Boy Scouts of America, Indian Waters Council, Pack 48, Faith Presbyterian Church and Jeff Wagner, Defendants, of whom Jeff Wagner is, Respondent. David Cole and Karen Cole, Appellants v. Boy Scouts of America, Indian Waters Council, Pack 48, Faith Presbyterian Church and Jeff Wagner, Defendants, of whom Jeff Wagner is, Respondent.
Opinion No. 27072
SUPREME COURT OF SOUTH CAROLINA
2011 S.C. LEXIS 383
October 5, 2011, Heard
December 5, 2011, Filed
THIS DECISION IS NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
PRIOR HISTORY: [*1]
Appeal From Richland County. G. Thomas Cooper, Jr., Circuit Court Judge.
COUNSEL: Arthur K. Aiken, of Aiken & Hightower, P.A., of Columbia, for Appellants.
John M. Grantland, Alice P. Adams, and Ashley B. Stratton, of Murphy & Grantland, of Columbia, for Respondent.
JUDGES: JUSTICE HEARN. TOAL, C.J., BEATTY and KITTREDGE, JJ., concur. PLEICONES, J., concurring in a separate opinion.
OPINION BY: HEARN
JUSTICE HEARN: David Cole, the primary appellant, was injured while catching during a father-son game of softball at a Cub Scout outing when a baserunner collided with him at home plate. He brought this action alleging negligence and recklessness against the baserunner and the sponsors of the game. The circuit court judge granted summary judgment to the baserunner, and we affirm.
In March 2004, David Cole and his son, David Jr., who was a member of Cub Scout Pack 48, attended a Cub Scout family camping trip. During the course of the trip, Cole and David Jr. participated in a father-son, pick-up softball game. Jeff Wagner and his son were also on the camping trip and were playing on the opposite team from the Coles in the softball game. Although one of the older boys had been playing [*2] catcher, Cole took over the position because he was afraid the boy would be hit by a foul ball or by the batter.
Neither of the teams kept score, and during each inning everyone was allowed to bat. Apparently, some of the fathers were playing too aggressively in the minds of some participants and hitting the ball with full swings. One of the Scout leaders, Keith Corley, briefly interrupted the game and asked them to play more safely, fearing that they were putting the scouts in danger.
During Wagner’s next turn at bat, he hit a double. Another father came up to bat after him and hit the ball into the outfield, potentially allowing Wagner to score. As Wagner reached home plate, he collided with Cole, who had moved on top of the plate, thereby placing his body directly in the baseline. Wagner was running so fast that he was unable to stop or change directions in time to avoid Cole. Upon impact, Wagner flipped in the air and landed on a bat, breaking a rib. Cole suffered a closed head injury and was rendered semiconscious. He then began bleeding and went into convulsions. Cole had to be airlifted to Palmetto Richland Hospital where he spent two days in the intensive care unit. David Jr. [*3] witnessed the entire accident in fear that his father was going to die.
Cole and his wife Karen, personally and as guardian ad litem for David Jr. (collectively, Appellants), brought this action against Wagner, the Boy Scouts of America, Indian Waters Council of the Boy Scouts of America, Pack 48, and Faith Presbyterian Church for personal injury, loss of consortium, and negligent infliction of emotional distress. Wagner 1 moved for summary judgment, contending he owed no duty to Cole because Cole assumed the risks incident to the sport of softball. The circuit court granted Wagner’s motion, and this appeal followed.
1 The Coles settled with all the other defendants.
STANDARD OF REVIEW
[HN1] An appellate court reviewing a grant of summary judgment applies the same standard used by the trial court. Doe ex rel. Doe v. Wal-Mart Stores, Inc., 393 S.C. 240, 244, 711 S.E.2d 908, 910 (2011). Summary judgment is appropriate if “there is no genuine issue as to any material fact.” Rule 56(c), SCRCP. [HN2] In determining whether a triable issue of material fact exists, the Court must construe all facts and inferences in the light most favorable to the non-movant. Wogan v. Kunze, 379 S.C. 581, 585, 666 S.E.2d 901, 903 (2008) [*4] [HN3] “In order to withstand a motion for summary judgment in cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence.” Turner v. Milliman, 392 S.C. 116, 122, 708 S.E.2d 766, 769 (2011). [HN4] “A motion for summary judgment on the basis of the absence of a duty is a question of law for the court to determine.” Oblachinski v. Reynolds, 391 S.C. 557, 560, 706 S.E.2d 844, 845 (2011). If a legal duty is established, whether the defendant breached that duty is a question of fact. Singletary v. S.C. Dept. of Educ., 316 S.C. 153, 157, 447 S.E.2d 231, 233 (Ct. App. 1994).
Appellants argue that the circuit court erred in finding Cole assumed the risk of his injury by engaging in a game of softball because Wagner’s conduct was outside the scope of the game. Specifically, Appellants argue Wagner’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive, Wagner violated a rule of the game, and he acted recklessly. We disagree.
[HN5] “Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a [*5] particular activity.” Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 81, 508 S.E.2d 565, 570 (1998). The doctrine of primary implied assumption of risk “goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff.” Id. [HN6] To establish a claim for negligence, a plaintiff must first show that the defendant owed a duty of care to the plaintiff. Doe, 393 S.C. at 246, 711 S.E.2d at 911. Absent a legally recognized duty, the defendant in a negligence action is entitled to a judgment as matter of law. Hurst v. East Coast Hockey League, 371 S.C. 33, 37, 637 S.E.2d 560, 562 (2006).
In Hurst, we considered the application of assumption of risk in a sports context. The plaintiff was injured when a hockey puck struck him in the face while he was watching a professional hockey game. 371 S.C. at 36, 673 S.E.2d at 561. The plaintiff sued the hockey team for negligence, and we affirmed the grant of summary judgment for the team finding that “a flying puck is inherent to the game of hockey and is also a common, expected, and frequent risk of hockey.” Id. at 38, 673 S.E.2d at 562-63. We held that by attending the hockey [*6] game, the plaintiff implicitly assumed the risks inherent in the sport and the defendant had no duty to protect him from those risks. Id. at 38, 673 S.E.2d at 562.
Appellants argue that Hurst is factually distinguishable, and therefore inapplicable, since the plaintiff in Hurst was a spectator and the game was being played by a professional team. Both of these arguments are unavailing. We acknowledge that the duty owed by a player to a spectator may differ in form to a duty owed to a coparticipant in a sport, but only because a duty owed to a spectator would be greater. Thus, if anything, by playing the game, Cole assumed a greater risk than the plaintiff in Hurst who was a mere spectator.
Furthermore, it is legally inconsequential that Hurst involved a professional sport. Hurst contained no qualifying language to limit its holding to the professional sports context, and we take this opportunity to emphasize that the critical fact is not the level of play, but the nature of the sport itself. See Marchetti v. Kalish, 53 Ohio St. 3d 95, 559 N.E.2d 699, 702 (Ohio 1990) ( [HN7] “Whether the activity is organized, unorganized, supervised or unsupervised is immaterial to the standard of liability.“). A risk inherent [*7] in a sport can be found at any level of play, possibly more so in a non-professional arena where the players engage with less skill and athleticism. While Cole was playing a casual game in which the teams did not even keep score, he was still playing softball, which is a contact sport. 2 Where a person chooses to participate in a contact sport, whatever the level of play, he assumes the risks inherent in that sport. See Landrum v. Gonzalez, 257 Ill. App. 3d 942, 629 N.E.2d 710, 714, 196 Ill. Dec. 165 (Ill. App. Ct. 1994) (noting that the relative inquiry into the standard of care is whether the sport is a contact sport, which should be determined “by examining the objective factors surrounding the game itself, not on the subjective expectations of the parties”); Keller v. Mols, 156 Ill. App. 3d 235, 509 N.E.2d 584, 586, 108 Ill. Dec. 888 (Ill. App. Ct. 1987) (“[I]n determining whether a sports participant may be liable for injuries to another player caused by mere negligence, the relevant inquiry is whether the participants were involved in a contact sport, not whether they were organized and coached.”). Therefore by playing softball, Cole assumed those risks that are integral to the sport of softball, which includes the risk of a collision at home plate.
2 Numerous [*8] courts across the country have similarly acknowledged softball is a contact sport. See, e.g., D’Agostino v. Easton Sports, Inc., No. X04HHDCV085026631S, 2010 Conn. Super. LEXIS 3200, 2010 WL 5492731, at *3 (Conn. Super. Ct. Dec. 9, 2010) (unpublished decision) (noting that “softball is a contact sport” (internal citation omitted)); Gonzalez, 629 N.E.2d at 715 (finding [HN8] softball is a contact sport in a case involving an employee pick-up game, noting that “physical contact is part of the game”); Feld v. Borkowski, 790 N.W.2d 72, 79 (Iowa 2010) (concluding that softball is a contact sport and noting that this was the conclusion of other courts that have considered this question); Crawn v. Campo, 136 N.J. 494, 643 A.2d 600, 606 (N.J. 1994) (applying the standard of care applied for contact sports across most states to softball); Licitra v. Inc. Vill. of Garden City, 4 Misc. 3d 1022[A], 798 N.Y.S.2d 345, 2004 NY Slip Op 50993[U], 2004 WL 2034999, at *2 (N.Y. App. Div. 2004) (unpublished opinion) (“The risk of injury is clearly inherent in contact sports such as softball.”); Kalan v. Fox, 187 Ohio App. 3d 687, 2010 Ohio 2951, 933 N.E.2d 337, 341-42 (Ohio Ct. App. 2010) (noting that physical contact is inevitable in contact sports like softball).
Appellants accordingly contend that Wagner violated a rule of softball [*9] by “running over the catcher during a play at home plate,” and therefore his conduct was outside the scope of the game. However, [HN9] the risk of someone violating a rule of the game is one of the risks taken when engaging in a sport. See Landrum, 629 N.E.2d at 714 (citing Oswald v. Township High Sch. Dist. No. 214, 84 Ill. App. 3d 723, 406 N.E.2d 157, 160, 40 Ill. Dec. 456 (Ill. Ct. App. 1980)) (noting that “rule infractions, deliberate or unintentional, are virtually inevitable in contact games” and thus a different standard of care in such sports is justified). If no one ever violated the rules, then there would be no need for penalty shots in basketball, a penalty box in hockey, or flags on the field in football. Collisions at home plate are common, mainly because catchers often attempt to keep a runner from scoring by blocking the plate with their body. Even if a rule prohibits running into the catcher, that fact alone is insufficient evidence to show the injury resulting from the violation of the rule was not inherent in the sport.
As a final matter, Appellants argue that even if mere negligence may be outside the duty of care, Wagner’s conduct was reckless and therefore outside the scope of risks assumed in the game of [*10] softball. [HN10] “[R]ecklessness or willfulness may be inferred from conduct so grossly negligent that a person of ordinary reason and prudence would then have been conscious of the probability of resulting injury.” Yaun v. Baldridge, 243 S.C. 414, 419, 134 S.E.2d 248, 251 (1964). “[R]ecklessness implies the doing of a negligent act knowingly . . . [or] the conscious failure to exercise due care.” Id. (quoting State v. Rachels, 218 S.C. 1, 8, 61 S.E.2d 249, 252 (1950)). “Due care” can be defined as “that degree of care which a person of ordinary prudence and reason would exercise under the same circumstances.” Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (quoting Hart v. Doe, 261 S.C. 116, 122, 198 S.E.2d 526, 529 (1973)).
Even assuming, arguendo, that Wagner’s conduct could be characterized as reckless, it was not so reckless as to involve risks outside the scope of softball. [HN11] The likelihood of someone running too fast to stop or playing more aggressively than anticipated is part of the competitive atmosphere of athletics. Almost all contact sports, especially ones that require protective gear as part of their equipment, involve conduct that a reasonably prudent person [*11] would recognize may result in injury. To the extent these risks inhere in the sport involved, we hold some recklessness by copaticipants in a contact sport must be assumed as part of the game. Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.
We emphasize that this holding is limited to recklessness committed within the scope of the game and does not include intentional conduct by a coparticipant of a sport, or conduct so reckless as to be outside the scope of the game. 3 Even within the context of a contact sport, players owe reciprocal duties to not intentionally injure each other. Cole does not allege that Wagner’s conduct was intentional nor does he allege such recklessness as would fall outside the scope of the game of softball. Thus, Wagner’s conduct fell within the duty of care he owed to Cole as a coparticipant in the game.
3 While other courts have carved out exceptions for both reckless and intentional conduct, a viable recklessness claim must embrace conduct inconsistent with the game. See Rudzinski v. BB, No. 0:09-1819-JFA, 2010 U.S. Dist. LEXIS 68471, 2010 WL 2723105 at *3 (D.S.C. 2010) (finding one boy had not acted recklessly in hitting another [*12] boy with the backswing of his golf club because he had not “engaged in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport of golf”); Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, 710 (Cal. 1992) (failing to find defendant liable for recklessness for knocking over plaintiff and stepping on her hand during a game of touch football, stating that defendant’s conduct was not “so reckless as to be totally outside the range of ordinary activity involved in the sport”); Bourque v. Duplechin, 331 So. 2d 40, 42-43 (La. Ct. App. 1976) (finding defendant liable under a theory of recklessness where he had run several feet outside the baseline to collide with the second baseman in an effort to break up a double play and noting that such unsportsmanlike behavior was not incidental to playing softball).
Based on the foregoing, we affirm the circuit court’s order granting summary judgment in favor of Wagner.
TOAL, C.J., BEATTY and KITTREDGE, JJ., concur. PLEICONES, J., concurring in a separate opinion.
CONCUR BY: PLEICONES
JUSTICE PLEICONES: I concur in the decision to affirm the grant of summary judgment because I would find that Wagner owed no duty to Cole under these [*13] circumstances, relying on the doctrine of implied primary assumption of the risk. Hurst v. East Coast Hockey League, 371 S.C. 33, 637 S.E.2d 560 (2006). I also note that I am not convinced that a game of pick-up softball is a contact sport.
In this lawsuit a man is suing the maker of Brut aftershave when his face caught on fire after splashing on the aftershave. WISN-TV of Milwaukee, WI reports in Camper Sues Aftershave Maker After Igniting that 81 year old Charles Lewitzke was at a campground where he cleaned up in the campground washroom. He applied Brut to his neck and face and used an aerosol deodorant.
He then went back to his campsite to cook breakfast over an open fire pit when his face caught fire.
Mr. Lewitzke is suing the manufacture of Brut and Wal-Mart where he purchased the products. Brut on its label says the product is flammable and should not be used when smoking or near a fire. Mr. Lewitzke is arguing he did not use the product near a fire and that there was not warning as to the amount of time the product remained flammable.
So as a warning, the next time you go camping, just smell like everyone else.