Martin v. Hudson Farm Club, Inc. (D. N.J. 2021)

DAVID MARTIN and LUISA MARTIN, Plaintiffs,
v.
HUDSON FARM CLUB, INC.; LUKAS SPARLING; and GRIFFIN & HOWE, INC Defendants.

Civil Action No. 18-02511

United States District Court, D. New Jersey

December 31, 2021

NOT FOR PUBLICATION

OPINION

Stanley R. Chesler, United States District Judge

This matter comes before the Court on the motions for summary judgment filed by Defendants Hudson Farm Club (“HFC”) and Lukas Sparling (collectively, the “HFC Defendants”), and Defendant Griffin & Howe, Inc. (“G&H” and, collectively with the HFC Defendants, “Defendants”), respectively, as to certain affirmative defenses which Defendants have asserted, pursuant to Federal Rule of Civil Procedure 56, and the motion filed by Plaintiffs David and Luisa Martin (“Plaintiffs”)[1] to strike those same affirmative defenses. As described, infra, the Court will convert Plaintiffs’ motion to strike into a competing motion for summary judgment concerning Defendants’ affirmative defenses. The Court has reviewed the papers submitted and proceeds to rule without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, Plaintiffs’ motion for summary judgment will be granted and Defendants’ motions for summary judgment will be denied.

I. Background[2]

On September 19, 2017, Martin participated in a charitable clay shooting event at HFC in Andover, New Jersey. (Pls.’ 56.1 Statement ¶ 1, 22-23; HFC 56.1 Statement ¶ 1; G&H 56.1 Statement ¶ 1.) Upon arriving at HFC, Martin signed a Release and Hold Harmless Agreement (the “Release”), which consists of three “Sections” on a single page. (Pls.’ 56.1 Statement ¶ 2; HFC 56.1 Statement ¶ 8; G&H 56.1 Statement ¶ 2.) Section I of the Release reads:

I HAVE BEEN ADVISED THAT THE RECREATIONAL USE OF FIREARMS IS AN INHERENTLY DANGEROUS ACTIVIT WHICH CAN AND DOES RESULT IN SERIOUS BODILY INJURY AND/OR DEATH ESPECIALLY IF SAFETY RULES ARE NOT OBEYED

In return for the use of the premises and equipment, I agree to indemnify, hold harmless and defend [G&H], [HFC] and [non-party] IAT Reinsurance Company Ltd. and its instructors, employees, directors, officers, agents, representatives, heirs, successors, and assigns from and against any and all claims, demands, causes of action, personal injury (including death), damages, costs, and expenses (including attorney’s fees), arising out of, related to, or connected with the rental of a firearm, instruction, use or discharge of firearms. I hereby further agree, on behalf of myself, executors and assigns, that I will not make any claim or institute any suit or action at law or in equity against [G&H], [HFC] and IAT Reinsurance Company Ltd. Related [sic] directly or indirectly to my use of the firearm referenced in this document or from my use or participation in any activity on this property. I expressly assume the risk of taking part in the activities on the premises, which include the discharge of firearms and firing of live ammunition.

Section II is entitled “FIREARM RENTAL USE” and requires that the signatory attest that they are “not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3, ” concerning the purchase of firearms, and further requires that the signatory certify to other statements relevant to the individual’s rental of a firearm.[3] Section III is entitled “CONSENT FOR USE OF LIKENESS.” While Sections I and II bear Martin’s signature, Section III does not.

By his signature to Section I of the Release, Martin acknowledged that “[he] carefully read this agreement and fully underst[ood] its contents, ” (ii) that he was aware that the Release was an important legal document, and (iii) that he intended to be “fully bound by it.” (Pls.’ 56.1 Statement ¶ 16; HFC 56.1 Statement ¶ 9; G&H 56.1 Statement ¶ 4.) Notwithstanding this, Martin testified that he signed the Release without reading it.[4] (HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 5; Martin Dep. Tr. at 44:3-25.)

The clay shooting event had multiple starting stations at which the charity participants would begin their shooting activities. (HFC 56.1 Statement ¶ 2; G&H 56.1 Statement ¶ 6.) While the charity participants at certain locations walked to those locations, others-including Martin- were transported to their starting location in wagons pulled by vehicles. (Pls.’ 56.1 Statement ¶¶ 26; HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 6.) Defendant Sparling drove the vehicle which pulled the wagon in which Martin rode. (HFC 56.1 Statement ¶ 3; G&H 56.1 Statement ¶ 8.) In route to the station, the tractor ascended an incline and, during the ascent, the vehicle stalled. (HFC 56.1 Statement ¶¶ 10-11; G&H 56.1 Statement ¶ 9.) While Sparling engaged the vehicles’ brakes, the vehicle and attached wagon began skidding backwards. (HFC 56.1 Statement ¶ 4; G&H 56.1 Statement ¶ 9.) Martin at some point during the descent leapt from the wagon and suffered injuries as a result. (HFC 56.1 Statement ¶ 5; G&H 56.1 Statement ¶ 10.)

II. Discussion

Defendants bring their motions pursuant to Federal Rule of Civil Procedure 56 seeking summary judgment as to their respective affirmative defenses of release and waiver as a result of the Release, while Plaintiffs’ motion is styled as a motion to strike those affirmative defenses. Notwithstanding that the Parties have pursued motions under different rules, those motions concern solely the validity of the Release.[5]

Rule 12(f) of the Federal Rules of Civil Procedure, concerning a motion to strike, allows this Court to strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” in a pleading. Fed.R.Civ.P. 12(f). However, a motion to strike may be treated as a motion for partial summary judgment under Rule 56(d) when facts outside the pleadings are offered. See, e.g., United States v. Manzo, 182 F.Supp.2d 385, 395 n.6 (D.N.J. 2000) (“Because both parties refer to matters outside the pleadings and for the sake of consistency and clarity, the Court will generally treat the motion to strike as a motion for summary judgment.”); see also 5A Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1380, at 647 (“[S]ome courts, when faced with affidavits on a Rule 12(f) motion to strike a defense, have treated the motion to strike as one for partial summary judgment.”).

In addition to the Parties’ initial submissions indicating their apparent understanding that they intended the Court to consider their motions on the evidentiary record established over the past three and a half years, the Court on October 1, 2021 ordered that the Parties comply with Rule 56(a) in setting forth that evidentiary record. In light of the facts presented in the various Rule 56.1 Statements and declarations and in consideration of the arguments set forth in the voluminous briefing before the Court, it makes little sense to treat Plaintiffs’ motion as a Rule 12(f) motion to strike a defense. Here, seeing no prejudice to Plaintiffs who have briefed the issue sufficiently and had the opportunity to proffer evidence in support of their arguments, the Court will exercise its discretion and consider Defendant’s Rule 12(f) motion to strike as a Rule 56(a) motion for partial summary judgment.

In evaluating the competing motions, the Court applies the well-established legal standard for summary judgment. Rule 56(a) provides that a “court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (construing the similarly worded Rule 56(c), predecessor to the current summary judgment standard set forth in Rule 56(a)). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a district court “must view the evidence ‘in the light most favorable to the opposing party.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). It may not make credibility determinations or engage in any weighing of the evidence. Anderson, 477 U.S. at 255; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (holding same).

A. The Evidentiary Record Properly Before the Court.

Once the moving party has satisfied its initial burden, the nonmoving party must establish the existence of a genuine issue as to a material fact to defeat the motion. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). To create a genuine issue of material fact, the nonmoving party must come forward with sufficient evidence to allow a jury to find in its favor at trial. Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001), overruled on other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of the Int’l Union of Operating Eng’rs and Participating Emp’rs, 134 S.Ct. 773 (2014). The party opposing a motion for summary judgment cannot rest on mere allegations; instead, it must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (holding that “unsupported allegations in [a] memorandum and pleadings are insufficient to repel summary judgment”).

1. The Court Will Disregard Plaintiffs’ Responses to Defendants’ Rule 56.1 Statements in Support of Defendants’ Respective Motions for Summary Judgement.

Rule 56(c)(1) expressly requires a party who asserts that a fact is genuinely disputed to support that assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) 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). If the non-movant fails to “properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2). In the District of New Jersey, Local Civil Rule 56.1 imposes an additional requirement on both movants and non-movants related to summary judgment motions. The party moving for summary judgment must file a statement which lists, in separately numbered paragraphs, material facts the movant asserts are not in dispute, with citations to the specific portions of the record supporting those factual assertions. In turn, the party opposing summary judgment “shall furnish, with its opposition papers, a responsive statement of material facts, addressing each paragraph of the movant’s statement, indicating agreement or disagreement and, if not agreed, stating each material fact in dispute and citing to the affidavits and other documents submitted in connection with the motion.” L. Civ. R. 56.1(a). Indeed, the local rule warns that “any material fact not disputed [in such a responsive statement] shall be deemed undisputed for purposes of the summary judgment motion.” Id.

On August 23, 2021, in connection with Plaintiffs’ Motion (ECF No. 124), Plaintiffs submitted, among other things, the certification of their counsel, Howard R. Engle. (ECF Nos. 124-1; 124-3.) Mr. Engle’s certification, which purported to be factual in nature, consisted of (i) facts not within his personal knowledge, (ii) legal arguments, and (iii) conclusions of law. (ECF No. 124-1.) Furthermore, in connection with Plaintiffs’ September 15, 2021 opposition to Defendants’ respective motions, Plaintiffs submitted “Certification[s] and Statement[s] of Undisputed Facts” by Mr. Engle. (ECF Nos. 129-1; 130-1.) These documents were far from the “responsive statement[s] of material facts” required pursuant to Local Rule 56.1(a).[6] Rather than “indicating agreement or disagreement” with “each paragraph” of Defendants’ Rule 56.1 Statements as required by the Rules, Plaintiffs proceeded to set forth dozens of their own purportedly “undisputed material facts.”[7] In light of these procedural improprieties, on October 1, 2021, the Court struck certain certifications which Plaintiffs submitted in support of their Motion and in Opposition to Defendants Motions and, to establish an orderly recounting of the material facts, ordered that Plaintiffs file: (i) a statement of material facts not in dispute in support of their motion, pursuant to Local Rule 56.1(a) and (ii) proper statements of material facts not in dispute in response to those submitted by Defendants in support of their respective motions. (ECF No. 138).

While Plaintiffs complied with the command to submit a Rule 56.1 statement in support of their motion, they again failed to submit responses to Defendants’ respective Rule 56.1 statements in a manner which complied with the Rules. Instead of making a submission consistent with the Rules, Plaintiffs again submitted statements of purported facts that are unmoored from and unresponsive to those statements which Defendants submitted. Plaintiffs have now twice failed to comply with Rule of Federal Civil Procedure 56.1 and Local Rule 56.1-including after the Court’s express order that Plaintiffs do so-by failing to address, on a paragraph-by-paragraph basis, the material facts as set forth in the Defendants’ Rule 56.1 Statements. Plaintiffs have provided no explanation for their repeated and continued violation of the Rules.

However, Plaintiffs’ Rule 56.1 Statement in support of their motion-which Plaintiffs submitted pursuant to the Court’s October 1 Order-is sufficiently in conformance with Rule 56.1 to allow the Court to consider it in the evidentiary record. Accordingly, the Court will disregard their responses and will consider Defendants’ Rule 56.1 Statements in support of their respective motions as undisputed, except to the extent which Defendants’ Rule 56.1 Statements may be tension with Plaintiffs’ Rule 56.1 Statement.

2. Martin’s September 16, 2021 Affidavit Will Be Set Aside Under the Sham Affidavit Doctrine.

In connection with the instant motions, Martin submits an affidavit (ECF Nos. 129-4; 130-4; 133-1; 134-1, the “Martin Affidavit”)[8] which Defendants ask the Court to set aside as a “sham affidavit” designed to defeat their motions for summary judgment. “[I]f it is clear that an affidavit is offered solely for the purpose of defeating summary judgment, it is proper for the trial judge to conclude that no reasonable jury could accord that affidavit evidentiary weight . . . .” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (2007) (internal citations omitted). The timing of the affidavit, whether there is a plausible explanation for the contradictory statements, and whether there is independent evidence in the record supporting the affidavit, may be considered when determining whether an affidavit is a sham. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 268-69 (3d Cir. 2010).

There can be no dispute that the Martin Affidavit attests to certain facts that are contrary to those which he testified under oath in prior sworn testimony. Martin’s deposition testimony clearly evidences that he did not read the Release prior to signing the document:

[PLAINTIFFS’ COUNSEL]: Did you read it before you signed it?

[MARTIN]: No, I did not.

Q. [Counsel for HFC] Why didn’t you read it before you signed it?

A. There was about twenty people in line behind me and we were in a press for time to get the events started.

Q. So you didn’t know what you were signing? –

A. At the time I did not know what I was signing and until I just read it just now, I didn’t know what I signed.

Q. You always sign things without knowing what you signed?

A. From time to time apparently, yes.

Q. Well in this – –

A. In this instance, yes, I did not read it.

(Martin Dep. Tr. at 44:3-25.) Martin now certifies that “he did not read the release entirely before [he signed] it” and that he “tried to read [the Release]” prior to signing the document (Martin Aff. ¶¶ 16-17). Acknowledging that this recounting of the facts is at odds with his prior testimony, Martin goes so far as to assert that “[w]hile [during the deposition] I said I did not read it, what I meant was that I couldn’t read the whole thing carefully.” (Martin Aff. ¶ 19.) He further asserts that he “was able to skim it and did read what was big enough and what I could understand.” (Martin Aff. ¶ 20.) Counsels’ questions-including that which Martin’s own counsel posed-during Martin’s deposition were perfectly clear, as were his responses. He did not equivocate in his recollection of the facts and repeated it on multiple occasions during the deposition. This is not a discrepancy which merely relates to the weight of the evidence at issue, and instead is a direct contradiction of his prior testimony. Cf. Jiminez 503 F.3d at 254 (“[C]orroborating evidence may establish that the affidavit was ‘understandably’ mistaken, confused, or not in possession of all the facts during the previous deposition.”). Martin cannot now-well after discovery closed and nearly two and half years after he was deposed-contradict his own testimony to give rise to a dispute of material fact in connection with the Parties’ competing motions. This is plainly improper, and the affidavit will be set aside as a sham affidavit.[9]

3. Plaintiffs’ Submission of an Affidavit by a Forensic Document Examiner is Improper and Will Be Set Aside.

In a similar vein, Plaintiffs submit the affidavit of John Paul Osborn, a forensic document examiner, and accompanying exhibits demonstrating Osborn’s credentials in connection with the motions. (ECF Nos. 129-3; 130-3; 133-2; 134-2, the “Osborn Affidavit”.) This too will be excluded from the Court’s consideration in resolving these motions.

Pursuant to Rule 26(a)(2), “a party must make [expert] disclosures at the times . . . that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). The disclosures must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. Fed.R.Civ.P. 26(a)(2)(B). “Expert disclosure requirements are meant to ensure the playing field remains level, to afford the opposing party an opportunity to challenge the expert’s qualifications and opinions, and to avoid undue prejudice and surprise.” Bouder v. Prudential Fin., Inc., No. CIV.A.06-4359(DMC), 2010 WL 2026707, at *2 (D.N.J. May 21, 2010). Rule 37 of the Federal Rules of Civil Procedure further provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

In evaluating whether a non-disclosure warrants exclusion, the Third Circuit has identified four factors to consider: “(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure the prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness in failing to comply with a court order or discovery obligation.” Nicholas v. Pa. State Univ., 227 F.3d 133, 148 (3d Cir.2000). The party who has failed to disclose information bears the burden to show that the non-disclosure was substantially justified or is harmless. See D&D Assocs., Inc. v. Bd. of Educ. of N. Plainfield, 2006 WL 1644742, at *4 (D.N.J. June 8, 2006). Ultimately, whether to exclude evidence is left to the trial court’s discretion. Fed.R.Civ.P. 37(c)(1)(A)-(C); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir.1995) (“[T]he imposition of sanctions under Rule 37 is a matter within the discretion of the trial court.”).

On June 25, 2020, Magistrate Judge Waldor entered an Order which granted Defendants’ Motion to Amend/Correct the Answer to the Amended Complaint regarding Defendants’ affirmative defenses relating to the Release. (ECF No. 82.) The Order further “permit any discovery necessary to explore” the defenses. (Id. at 7.) Plaintiffs subsequently retained Osborn on February 26, 2021. (Osborn Aff. at 24.) On June 21, 2021, the Parties reported in a letter to the Court that discovery concerning the Release had been completed. (ECF No. 118.)

Plaintiffs evidently contemplated prior to the June 21 submission that Osborn may proffer a report in connection with this action, yet openly represented to the Court in the June 21 Letter that discovery was complete. Plaintiffs offer no explanation as to why the Court should entertain this untimely submission, let alone do they demonstrate why this delinquency is substantially justified or harmless.

Upon consideration of the factors which the Third Circuit outlined in Nicholas, the Court finds that exclusion of the Osborn Affidavit is warranted. This last-minute disclosure is both prejudicial and a surprise. The Osborn Affidavit was not provided until Defendants were under a deadline to prepare and file their reply brief, and Defendants have had no opportunity to cross-examine the proffered expert’s credentials and statements. Furthermore, allowing Plaintiffs to rely upon the Osborn Affidavit would interfere with the pending motions, and Defendants would be unable to cure such prejudice without the reopening of expert discovery, thus expending additional time, resources and money and further delaying resolution of the motions. See, e.g., Brooks v. Price, 121 Fed.Appx. 961, 965 (3d Cir. 2005). Whether or not Plaintiffs acted in bad faith, these factors are sufficient to warrant the exclusion of the Osborn Affidavit.[10]

B. The Release Does Not Violate the New Jersey Plain Language Review Act

New Jersey sets forth certain guidelines regarding consumer contracts-such as the Release-under the Plain Language Review Act (“PLRA”), N.J.S.A. 56:12. Section 2 of the PLRA requires that a consumer contract “shall be written in a simple, clear, understandable and easily readable way.” N.J.S.A. 56:12-2. The PLRA is designed so that consumer contracts “use plain language that is commonly understood by the wide swath of people who comprise the consuming public.” Kernahan v. Home Warranty Adm’r of Florida, Inc., 236 N.J. 301, 321 (2019). “With such protections in place . . . ‘[a] party who enters into a contract in writing, without any fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect.'” Id. (citing Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992) (internal citation omitted)).

According to the PLRA, “[a] creditor, seller, insurer or lessor who fails to comply with section 2 of this act shall be liable to a consumer who is a party to the consumer contract for actual damages sustained, if the violation caused the consumer to be substantially confused about the rights, obligations or remedies of the contract . . .” N.J.S.A. 56:12-3. The statute sets forth six non-exclusive factors that a court “may consider” in its determination of whether a consumer contract is “clear, understandable and easily readable, ” including:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

N.J.S.A. 56:12-10. Furthermore, the PLRA provides that “[c]onditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.” Id. The Court maintains broad discretion in its determination of how much consideration should be given to the factors individually and collectively. Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Plaintiffs contend that the Release runs afoul of the PLRA in numerous ways and, accordingly, that the Release must be set aside on statutory grounds. Primary among these arguments is Plaintiffs’ contention that the font size in the Release does not meet the requirement that it be “in at least 10 point type.” (Pls.’ Mot at 16.)[11] Plaintiffs further allege that the Release is in violation of the PLRA because it contains: (i) confusing cross references; (ii) sentences of greater length than necessary; (iii) sentences with double negatives and exceptions to exceptions; (iv) sentences and sections that are in confusing or illogical order; (v) the use of words with obsolete meaning or words that differ in their legal meaning from their common ordinary meaning; (vi) sections that are not logically divided and captioned; and (vii) conditions and exceptions to the main promise of the agreement do not have equal prominence. (Pls.’ Mot. at 17.)

Apart from Plaintiffs’ challenge to the font size found within the relevant language of the Release, Plaintiffs’ complaints amount to a mere recitation of the PLRA factors and Plaintiffs fail to establish how these other factors weigh in their favor. Indeed, upon the Court’s review of the Release, it finds that none of these elements exist within the Release.[12]

Even accepting that the font size may be smaller than the 10-point font guideline outlined in the PLRA, the waiver provision in this case is no less prominent than the remainder of the agreement: The document itself is entitled “SHOOTING SCHOOL AT HUDSON FARM – RELEASE & HOLD HARMLESS AGREEMENT, ” the waiver provision constitutes Section I of the Release, critical elements of the waiver provision are bolded and capitalized, and the font size of the waiver provision is similar to the font used throughout the one-page document. The fact that the font size of the relevant language may be marginally smaller than the statutory guidelines does not violate the mandate that the Release be “simple, clear, understandable and easily readable.” See, e.g., Kang v. La Fitness, 2016 WL 7476354, at *10 (D.N.J. Dec. 29, 2016) (finding the waiver provision in the relevant exculpatory clause was no less prominent than the remainder of the agreement where the font throughout the document was “about size 8”).[13]

In any event, all of Plaintiffs’ complaints are academic: Martin could not have been confused by the Release because he never read it. Inherent in any violation of the PLRA is that a contract that is not “clear, understandable and easily readable” must “cause[]” a consumer’s “substantial confusion” regarding the contents of the contract. N.J.S.A. 56:12-3 (emphasis added); see, e.g., Sauro v. L.A. Fitness Int’l, LLC, No. 12-3682, 2013 WL 97880, at *12 (D.N.J. Feb. 13, 2013) (citing Bosland v. Warnock Dodge. Inc., 396 N.J.Super. 267, 279 (App. Div. 2007), aff’d on other grounds, 197 N.J. 543 (2009)) (“New Jersey courts have held that a . . . plaintiff must allege that she was ‘substantially confused’ about the contract’s terms, as ‘substantial confusion’ is ‘a requirement of the Plain Language Act.'”). Accordingly, the Release could not have served to “substantially confuse” Plaintiff, and his challenge under the PLRA must fail as a matter of law.

C. The Release is Unenforceable Against Plaintiffs.

As a general and long-standing matter, contracting parties are afforded the liberty to bind themselves as they see fit. See Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356 (1931); Walters v. YMCA, 437 N.J.Super. 111, 117-18 (App. Div. 2014) (“The Court must give ‘due deference to the freedom to contract and the right of competent adults to bind themselves as they see fit.'”). However, certain categories of substantive contracts, including those that contain exculpatory clauses, are disfavored and thus have been subjected to close judicial scrutiny. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 303 (2010) (citing 11 Williston on Contracts, § 30:9, at 103-04). New Jersey courts have identified four considerations pertinent to the enforcement of an exculpatory agreement, advising that such an agreement:

will be enforced if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Id. at 304 (quoting Gershon, Adm’x Ad Prosequendum for Est. of Pietroluongo v. Regency Diving Ctr., Inc., 368 N.J.Super. 237, 248 (App. Div. 2004)).[14]

1. The Release is Inimical to the Public Interest as Applied to Plaintiffs’ Claims

The common law imposes a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm. Id. at 306 (“[B]usiness establishments in New Jersey have well-established duties of care to patrons that come upon their premises.”). In light of this duty, “[t]he law does not favor exculpatory agreements because they encourage a lack of care.” Gershon, 368 N.J.Super. At 247. But “public policy does not demand a per se ban against enforcement of an exculpatory agreement based on the mere existence of a duty recognized in the common law in respect of premises liability.” Stelluti, 203 N.J. at 306. “[T]he law recognizes that for certain activities conducted by operation of some types of business, particularly those that pose inherent risks to the participant, the business entity will not be held liable for injuries sustained so long as [the business] has acted in accordance with ‘the ordinary duty owed to business invitees, including exercise of care commensurate with the nature of the risk, foreseeability of injury, and fairness in the circumstances.'” Id. at 307 (quoting Hojnowski v. Vans Skate Park, 187 N.J. 323, 340-41 (2006)). For example, “[w]hen it comes to physical activities in the nature of sports-physical exertion associated with physical training, exercise, and the like-injuries are not an unexpected, unforeseeable result of such strenuous activity.” Id.

Defendants cite Justice LaVecchia’s dissent in Hojnowski to argue that “recreational activities such as skateboarding do not implicate the public interest” and therefore clay shooting- itself a recreational activity-cannot implicate the public interest. (HFC Opp. at 14-15.) Defendants’ position would result in a per se enforcement of unbounded waivers of liability in the context of recreational activities, which is plainly contrary to New Jersey jurisprudence. As the Stelluti court acknowledged, there remains a standard for liability even in contact recreational sports. Id. at 311 (“[T]here is also a limit to the protections that a private fitness center reasonably may exact from its patrons through the mechanism of an exculpatory agreement.”). In particular, Stelluti requires that business owners be held “to a standard of care congruent with the nature of their business.” Id. at 312.

The scope of the liability that may be waived in connection with recreational activities was explored in Walters. 437 N.J.Super. 111. There, the Appellate Division considered the enforceability of an exculpatory agreement where a patron at a fitness club sued the club for personal injuries he sustained when he slipped and fell on an allegedly negligently maintained stair tread leading to club’s pool. Id. at 118-19. The hold harmless provision within the patron’s membership agreement released the club for injuries sustained by the patron “WHILE ON ANY YMWCA PREMISES OR AS A RESULT OF A YMWCA SPONSORED ACTIVITIES [SIC].” Id. at 116 (emphasis in original). In refusing to enforce the broader clause of the exculpatory agreement-concerning injuries sustained “while on any YMWCA premises”-the Appellate Division found that “if applied literally, [the clause] would eviscerate the common law duty of care owed by defendant to its invitees, regardless of the nature of the business activity involved.” Id. at 118-19. This, the Walters panel continued, “would be inimical to the public interest because it would transfer the redress of civil wrongs from the responsible tortfeasor to either the innocent injured party or to society at large, in the form of taxpayer-supported institutions.” Id. at 119. While the court refused to enforce this broader reading of the exculpatory agreement, it still proceeded to consider whether the patron’s injury fell within the ambit of the narrower exculpatory clause. Id. at 120 (finding that an accident resulting from slipping on the steps leading into the pool did not occur while the plaintiff was “using the pool” and thus was not a “sponsored activit[y]” covered by the exculpatory agreement.).

Similar to the waiver at issue in Walters, if the terms of the Release are applied literally- to “any activity” on the property-Defendants would be released from any claim arising while an invitee was on the property “regardless of the nature of the business activity involved.” Id. at 118- 19.[15] Such a broad waiver of liability then constitutes an exculpatory agreement that is “inimical to the public interest.” Id. at 119.

While the literal reading of the Release cannot be sustained, Defendants are free to craft a release with regard “to a standard of care congruent with the nature of their business.” Stelluti, 203 N.J. at 312. To that end, other exculpatory clauses within the Release are tailored to the nature of Defendants’ business insofar as they limit the release to firearm-related activities. (See Release (“In return for the use of the premises and equipment, I agree to indemnify [Defendants] from and against any and all claims . . . arising out of, related to, or connected with the rental of a firearm, instruction, use or discharge of firearms;” “I hereby further agree . . . that I will not make any claim or institute any suit . . . directly or indirectly to my use of the firearm referenced in this document . . .;” or “I expressly assume the risk of taking part in the activities on the premises, which include the discharge of firearms and firing of live ammunition.”).) The question thus becomes whether Martin’s injury occurred in connection with a firearm-related activity.[16]

New Jersey courts narrowly construe exculpatory waivers in light of Stelluti‘s admonition that they are disfavored. Walters, 437 N.J.Super. at 328 (“Any ambiguities in language about the scope of an exculpatory agreement’s coverage, or doubts about its enforceability, should be resolved in favor of holding a tortfeasor accountable.”). Courts will enforce an exculpatory clause where a claim is “not an unexpected, unforeseeable result of” the risky activity offered by a facility. Stelluti, 203 N.J. at 307; see, e.g., Pulice v. Green Brook Sports, 2017 WL 3013086 (N.J.Super.Ct.App.Div. July 17, 2017) (finding a fitness club’s release enforceable as to plaintiff when a ten-pound dumbbell fell on her face as her trainer handed it to her to perform an exercise); Skarbnik v. Life Time Fitness, Inc., 2021 WL 3923270, at *4 (N.J.Super.Ct.App.Div. Sept. 2, 2021) (upholding fitness club’s release where plaintiff slipped on sweat immediately following a hot yoga class, because sweat on the floor “was a natural consequence” of the activity); Kyung Pak v. N.J. Fitness Factory, Inc., No. A-5084-16T2, 2018 WL 1865462, at *1 (N.J.Super.Ct.App.Div. Apr. 19, 2018) (release enforced when a fitness club employee directed plaintiff to step onto a running treadmill during an exercise class); Kang, 2016 WL 7476354, at *10 (release enforced where plaintiff injured while using a fitness machine). By contrast, New Jersey courts will set aside exculpatory clauses where a potential claim arises from an activity that is not squarely within the ambit of the risky activity offered by an establishment. See, e.g., Walters, 437 N.J.Super. at 111 (accident resulting from slipping on the steps leading into the facility’s pool not considered a “sponsored activity” subject to the release); Crossing-Lyons v. Towns Sports Int’l, Inc., 2017 WL 2953388, at *1 (N.J.Super.Ct.App.Div. July 11, 2017) (release inapplicable where plaintiff tripped over a weight belt left on the floor, an “incident[] that could have occurred in any business setting”); see also Martinez-Santiago v. Public Storage, 38 F.Supp.3d 500 (D.N.J. 2014) (refusing to enforce exculpatory agreement where patron sustained slip-and-fall injuries on ice on a walkway at a self-storage facility).

Defendants contend that “transportation while at HFC” constitutes an activity associated with sporting clay shooting, and the injury occurred within the scope of the Release. (E.g. HFC Mot. at 14.) In making this argument, Defendants analogize sporting clay shooting to golf, with G&H contending that transportation by way of a tractor and wagon is “similar to a golf event” insofar as it was “necessary so that the participants could stagger their starting locations. ((G&H Mot. at 6.) (“To find that attending a sporting clay event does not include transportation from one station to the next is like finding that playing golf does not start until golfers tee off, ends as soon as they retrieve their balls from the cup, and does not begin again until they tee off, and so on. Sporting clay shooting, like playing golf, includes all of the activities associated with attendance at the event, including transportation throughout the course.”).) These arguments “ignore[] the cause of the accident.” Walters, 437 N.J.Super. at 120. Here, the “inherent risky nature” of Defendants’ firearm business was immaterial to the injury Martin suffered. Martin’s injury occurred while he was being transported in a tractor-pulled wagon to his starting shooting location. The Release, while clearly referring to various elements of using a firearm-such as the “rental, instruction, [or] use . . . of firearms” and “discharge of firearms and firing of live ammunition”- does not self-evidently concern transportation while on the property.[17] Much like the Appellate Division’s refusal to consider “an accident resulting from slipping on the steps leading into the pool . . . covered under the ‘activities’ part of” the release clause in Walters, Plaintiffs claims do not arise in connection with the activities involved with using a firearm. 437 N.J.Super. at 111. Instead, Plaintiffs’ claims are more akin to a “garden variety” personal injury action. Id. Accordingly, the exculpatory clause of the Release is void and unenforceable as to Plaintiffs’ claims.[18]

2. Even if the Release Applied to the Wagon Ride, Disputes Over Material Facts Would Preclude Summary Judgment.

Even if the Court accepted that transportation to the shooting range is covered under the Release, the application of the final factor relevant to the enforcement of an exculpatory clause under New Jersey law-that the contract does not grow out of unequal bargaining power or is otherwise unconscionable-gives rise to a dispute of material facts. Gershon, 368 N.J.Super. at 248. “Procedural unconscionability requires examination of ‘unfairness in the formation of the contract’ while substantive unconscionability considers whether the contract’s terms are ‘excessively disproportionate.” Marcinczyk v. State of New Jersey Police Training Com’n, 406 N.J.Super. 608 (2009). In ascertaining whether a contract is unconscionable, these substantive and procedural aspects are subjected to a sliding-scale analysis. Delta Funding Corp. v. Harris, 189 N.J. 28, 40 (2006).

Plaintiffs assert that the Release is substantively unconscionable insofar as it should “shock the Court’s conscience” that “Defendants sought to release themselves from all responsibility to paying guests at their business.” (Mot. at 31.) Courts routinely uphold exculpatory releases, particularly concerning recreational activities, and Plaintiffs offer no meaningful argument as to how the Release departs from other exculpatory releases in such a manner as to shock the conscience.

Similarly, many of Plaintiffs’ arguments underlying their claim of procedural unconscionability fall flat. As previously noted, the purpose of the PLRA is to enable the courts to “confidently state that, even in the consumer context, ‘[a] party who enters into a contract in writing, without any fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect.'” Kernahan v. Home Warranty Adm’r of Florida, Inc., 236 N.J. 301, 321, 199 A.3d 766 (2019). Among other things, Plaintiffs argue that (i) Martin’s “lack of education and sophistication rendered him unable” to enter into the release; (ii) the Release was not negotiated personally by Martin; and (iii) he lacked representation by counsel.[19] Setting aside the impracticalities that would result if the Court accepted Plaintiffs’ arguments, Plaintiffs’ primary authority in support of these arguments, O’Brien v. Star Gas Propane, L.P., 2006 WL 2008716 (App. Div. 2006), concerning whether a union-represented employee knowingly released certain discrimination claims against his employer, does not translate to the consumer contract context.[20]

However, Plaintiffs contend that Martin had a limited opportunity to review and consider the Release prior to assenting to its terms. When asked at his deposition why he failed to read the Release, Martin testified that “there was about twenty people in line behind me and we were n a press for time to get the events started.” (Martin Dep. Tr. 44:6-10.) And, when asked whether he saw any other individual sign the Release, Martin testified that “it was very, very rushed . . . [s]o there was no time, they was like — they were like ‘we need to get to the shooting location’ . . . .” (Martin Dep. Tr. 172:14-173:2.) At this juncture, even if the Release was enforceable as to Plaintiffs’ claims, there remains a question of material fact regarding whether Martin had a meaningful opportunity to review the agreement. See Delta Funding Corp., 189 N.J. at 40 (acknowledging that plaintiff alleged facts which suggested “a high level of procedural unconscionability” where signatory was “rushed” into signing the papers); Miller v. Miller, 160 N.J. 408, 419 (1999) (considering whether plaintiff was “rushed into signing” an agreement in determining that the agreement was unconscionable).

III. Conclusion

For the reasons set forth above, Plaintiffs have demonstrated that they are entitled to summary judgment regarding Defendants’ affirmative defenses of release and waiver, pursuant to Federal Rule of Civil Procedure 56(a). Defendants’ motions for summary judgment regarding those same affirmative defenses are denied. An appropriate Order will issue.

———

Notes:

[1] Unless otherwise specified, references to “Martin” in this Opinion concern David Martin.

[2] As relevant to the instant motions, and as discussed further infra at Section II.A, the following papers and their attendant exhibits establish the evidentiary record:

• In connection with Plaintiffs’ Motion (“Pls.’ Mot.”) (ECF No. 124), Plaintiffs submitted a Rule 56.1 Statement (“Pls.’ 56.1 Statement”) (ECF No. 139), the HFC Defendants submitted a Response to Plaintiffs’ Rule 56.1 Statement (“HFC’s 56.1 Response In Opp.”) (ECF No. 143), and the G&H Defendants submitted a Response to Plaintiffs’ Rule 56.1 Statement (“G&H’s 56.1 Response In Opp.”) (ECF No. 144).

• In connection with the HFC Defendants’ Motion for Summary Judgment (“HFC Mot.”) (ECF No. 122), the HFC Defendants submitted a Rule 56.1 Statement (“HFC’s 56.1 Statement”) (ECF No. 122-2).

• In connection with the G&H Defendants’ Motion for Summary Judgment (“G&H Mot.”) (ECF No. 123), the G&H Defendants submitted a Rule 56.1 Statement (“G&H’s 56.1 Statement”) (ECF No. 123-2).

[3] These include, among other things, that a signatory certify that he or she (1) has “never been convicted of a crime, ” (2) has “not consumed alcohol in the last 12 hours and [is] not under the influence of any prescription or other drug or substance that would affect my ability to safely handle a firearm, ” and (3) “know[s] of no reason(s) why [their] possession of a firearm would not be in the interest of public health, safety, or welfare.”

[4] In connection with the instant motions, Martin submits an affidavit attesting that he did in fact read the release. (See Affidavit of David Martin (ECF No. 129-4) ¶¶ 16-20). For the reasons discussed, infra at II.A.2, the affidavit and all attendant facts will be set aside as a sham affidavit.

[5] On July 1, 2021, Magistrate Judge Waldor adopted a briefing schedule proposed by the Parties and ordered that the Parties file “any motions regarding the Release and Hold Harmless Agreement” pursuant to that schedule. (ECF No. 124.)

[6] Indeed, the Rules do not contemplate that a nonmovant will submit a statement of “undisputed” material facts. Instead, the nonmovant may furnish a “supplemental statement of disputed material facts, ” to which the movant shall reply. L. R. 56.1(a)

[7] As just one example, Mr. Engle attests: “Certainly we know from Mr. Martin’s affidavit that he did not read Section 1 and instead skimmed over it precisely because it was ‘too small and dense.’ Whether this was a reasonable thing to do, given the fact that it was in 9-point font, is a jury question.” (ECF No. 129 ¶ 10.) Such a statement is far from an “undisputed fact, ” nor does it follow the plain requirements of Local Rule 56.1(a).

[8] While the Martin Affidavit was submitted on multiple occasions in connection with the various motions, each submission is identical and the Court will refer to it as a single document.

[9] Counsel for the HFC Defendants assert that Plaintiffs should be sanctioned for submitting this sham affidavit. (HFC Opp. at 7.) To the extent that this request is more than mere bluster, it must be made as its own motion and pursuant to Rule 11 of the Federal Rules of Civil Procedure.

[10] As the Court has concluded exclusion is proper, there is no need to reach Defendants’ substantive objections to the Osborn Report. In any event, for reasons discussed infra, the Court’s consideration of the Report’s contents would not change the conclusion that the Release did not violate the PLRA.

[11] Relying on the deposition testimony of Laurel Auriemma, G&H’s Compliance Officer, Plaintiffs contend that most of the text in Section 1 of the Release is 9-point Times New Roman, the sole exception being the statement “I HAVE CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTAND THE CONTENTS, ” found at the bottom of Section 1 of the Release, which Plaintiffs claim is in 8-point Times New Roman. (Pls.’ 56.1 Statement ¶¶ 12, 13, 15, 16.) Defendants object to these statements as mischaracterizations of Ms. Auriemma’s testimony, and instead (correctly) claim that Ms. Auriemma’s testimony concerned the font size of a Microsoft Word version of the Release she had in her possession- rather than the signed Release. (HFC’s 56.1 Response In Opp ¶¶ 12, 13, 15, 16; G&H 56.1 Response In Opp ¶¶ 12, 13, 15, 16.) While the record does not establish an undisputed determination of the relevant language’s font size, even when the Court credits Plaintiffs’ accounting of the facts, their challenge to the language under the PLRA fails for the reasons that follow.

[12] Plaintiffs also contend that “Mr. Martin’s affidavit alone creates several N.J.S.A. 56:12(1-6) issues of fact.” (Pls.’ Mot at 14.) For reasons previously discussed, the Court will not credit the Martin Affidavit. See supra at II.A.2.

[13] Plaintiffs’ reliance on Kernahan and Rockel v. Cherry Hill Dodge, 368 N.J.Super. 577 (App. Div. 2004), is misplaced. To the extent the court in Kernahan considered the 6.5-point font size of the relevant language in the 5-page contract, it was one of several factors-also including a “confusing sentence order” and “misleading caption”-weighing in favor of finding it unenforceable. 236 N.J. at 326. Furthermore, the Kernahan decision focused predominantly on the heightened requirements underlying the enforcement of arbitration provisions, an issue not present here. Id. at 301-326 (citing Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014)).

Meanwhile, while the court in Rockel acknowledged that “[t]he size of the print and the location of the arbitration provision in a contract has great relevance to any determination to compel arbitration, ” its decision relied largely on the presence of two conflicting arbitration provisions. 368 N.J.Super. at 585. Indeed, the court in Rockel did not consider any challenge to the language under the PLRA.

[14] The third factor is inapplicable here because Defendants are neither public utilities nor common carriers.

[15] To underscore this point, John Ursin, G&H’s attorney and a principal drafter of the Release, during his deposition was asked whether the language was meant to “include every possible accident on the activity.” (Ursin Dep. Tr. 27:15-23.) While he declared that this would be an “overstatement, ” he only offered the hypothetical the Release was not intended to disclaim liability “if . . . there was a plane crash on the property.” (Id.) To limit Defendants’ liabilities under the exculpatory to acts of god would “eviscerate” the duty of care they have to their patrons. Cf. Walters, 437 N.J.Super. at 118-19.

[16] Plaintiffs argue unconvincingly that, because the Release does not contain a severability clause, the Release must be voided as a whole. Here, striking the unenforceable portions of the Release still “leaves behind a clear residue that is manifestly consistent with the ‘central purpose’ of the contracting parties, and that is capable of enforcement.” Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 33 (1992).

[17] Further to their proposed analogy between transportation during sporting clay shooting to the rental of golf carts in connection with a golf tournament, Defendants offer Post v. Belmont Country Club, Inc., 60 Mass.App.Ct. 645 (2004) as support for their argument that injuries during transportation should be covered within the Release. However, in Post, the relevant exculpatory clause in the golf membership handbook expressly included transportation on the golf court, id. at 646, and applied Massachusetts’ more permissive rules with respect to exculpatory agreements, id. at 651 (refusing to require “strict construction” of the relevant exculpatory clause when asked to apply other states’ rules of construction).

[18] Plaintiffs also argue, unpersuasively, that the Release violates Defendants’ statutory duties imposed upon them under New Jersey Code of Criminal Justice, Title 2C Section 2C:58-3.1. Under 2C:58-3.1, a legal owner of a handgun, rifle or shotgun may temporarily transfer the firearm to a person who is 18 years of age or older, if the transfer is made upon a firing range “for the sole purpose of target practice, trap or skeet shooting, or competition upon that firing range.” Upon the transfer, “[t]he firearm shall be handled and used by the person to whom it is temporarily transferred only in the actual presence or under the direct supervision of the legal owner of the firearm.” Id. Plaintiffs make no claim that any injury was the result of a failure to supervise him upon the transfer of a firearm, and Martin has acknowledged that he was not in possession of a firearm during the wagon ride at issue. (Martin Dep. Tr. 51 5-12.)

[19] The Release, which Defendants presented on a take-it-or-leave-it basis, in a standardized printed form, and without opportunity for the Martin to negotiate, is a contract of adhesion. Gamble v. Connolly, 399 N.J.Super. 130, 142 (2007) (A contract of adhesion means “‘a contract where one party must accept or reject the contract.'”). However, “‘the determination that a contract is one of adhesion is the beginning, not the end, of the inquiry into whether a contract…should be deemed unenforceable based on policy considerations.'” Id. “When making the determination that a contract of adhesion is unconscionable and unenforceable, [the court] consider[s], using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest.” Stelluti, 203 N.J. at 301 (citing Delta Funding, 189 NJ. at 39-40).

[20] Plaintiffs also argue that the “language of the release was technical and cumbersome” and “[i]ts sentences were overly long and difficult to understand.” (Pls.’ Opp, to HFC Mot. at 24; Pls.’ Opp to G&H Mot. at 27.) These arguments fail for reasons already discussed. See supra at II.B.

———


Is your local race a fund-raiser for a charity or an event for an out of state corporation? This lawsuit might decide

Lawsuit claims that race organizer; make money from volunteers and volunteers should be paid. Entire US race and event “business” could change or disappear.

Most events that we love to participate in, attend or watch are owned by for-profit corporations. They make money for a business. Those events are dependent upon hundreds if not thousands of volunteers. Many state or imply a charity, whose name is in the title of the event is the reason for the event, and thus the volunteers are working for the charity.

This lawsuit says that is not quite so. In fact, this lawsuit says most of what I believed and probably a lot of what you believe about these events are not true.

The lawsuit on its face says that the volunteers at these events were misled and should have been paid. On its face, it’s hard to ask for money when you sign up as a volunteer. You agree to volunteer and you are a volunteer, and you don’t get paid.

However, that is not the bottom line here. Based on the article:

·         The entire operation is fraudulent.

·         The volunteers were recruited to provide community service when, in fact, they were not, they were working for a for-profit corporation, not a charity.

·         Charities pay to have their name attached to the event.

·         The more a charity pays, the more the charity is recognized by the event.

·         Teams that raise money for these events Charites, the base money goes to the event, and only the money raised over the minimum goes to the charity.

·         The event then uses the charities name to recruit volunteers for the event.

Is the plaintiff going to win the lawsuit? I have no idea, but allegations of fraud change litigation, throw out the normal defenses and generally create a different courtroom drama. It is never good to be defending someone who looks bad.

However, the major impact may have already occurred. Will people volunteer to sign up for these events as volunteers? Will charities continue to associate with these events and will those charities be linked with the fraud or for the good they do?

Without the thousands of volunteers, these events won’t happen. Entry fees will either skyrocket or go away. Charities may no longer be associated with any of these events because they are simply bad news.

However, I think this lawsuit may have a chance; the plaintiff is an associate professor at the Saint Louis University School of Law.

The damage is already done. Those races and events that have been upfront from the beginning are not going to be affected except by a few volunteers who are not paying attention or confused. However, the big events which rely on thousands of volunteers are either going to change, evolve or go away.

See Lawsuit alleges CGI exploited race volunteers and This Marathon Lawsuit May Shake Up the Running World

What do you think? Leave a comment.

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Lewis v. Habitat for Humanity of Greater New Haven, Inc., 2012 Conn. Super. LEXIS 146

Lewis v. Habitat for Humanity of Greater New Haven, Inc., 2012 Conn. Super. LEXIS 146

Daniel Lewis v. Habitat for Humanity of Greater New Haven, Inc.

CV095030268S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN

2012 Conn. Super. LEXIS 146

January 9, 2012, Decided

January 9, 2012, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: [*1] Matthew E. Frechette, J.

OPINION BY: Matthew E. Frechette

OPINION

MEMORANDUM OF DECISION RE RULING ON DEFENDANT MOTION FOR SUMMARY JUDGMENT

Presently before the court is the defendant Habitat for Humanity of Greater New Haven, Inc.’s motion for summary judgment filed on June 10, 2011. For the reasons set forth herein, the defendant’s motion for summary judgment is denied.

PROCEDURAL HISTORY

The plaintiffs, Daniel Lewis, as well as Hal C. Lewis and Jeanne Dise-Lewis, co-conservators of Daniel Lewis, bring this action against the defendant, Habitat for Humanity of Greater New Haven, Inc.1 for alleged negligence that resulted in severe bodily injuries to Daniel Lewis while he was participating in an event known as the 2007 Habitat Bicycle Challenge (“HBC”). On October 20, 2009, the plaintiffs submitted a revised two-count complaint in response to the defendant’s request to revise. The first count of the revised complaint alleges the following facts.

1 Habitat for Humanity International, Inc. is also a defendant in the present case. Nevertheless, only Habitat for Humanity of Greater New Haven, Inc., moves for summary judgment in the present motion, and it is referred to as the defendant in this memorandum.

The defendant [*2] organized, promoted and sanctioned the HBC, which is an annual fund-raising cycling event which required all participants to cycle across the entire country during a time period of approximately nine weeks. Despite having a history of injuries and deaths during prior HBC events, the defendant made the decision to organize, promote and sanction another HBC event in 2007. That year, the cross county ride began in New Haven, Connecticut on June 2, 2007. At all relevant times, the defendant was in control of said event and was responsible for taking the necessary precautions to provide for the safety needs of the bicycle riders participating in the HBC. The defendant was responsible for selecting “trip leaders” with sufficient skill, maturity, knowledge and training to appropriately and safely coordinate the HBC. The defendant was also responsible for properly evaluating prospective participants for the HBC event and for making sure that all participants had a sufficient skill level to safely participate in the HBC event. In the fall of 2006, Daniel Lewis applied to participate, and he complied with the application and training requirements to participate in the event, including signing [*3] all the paper work presented by the defendant without any opportunity to negotiate or modify any of the terms.

The defendant chose Daniel Lewis to participate in the “south” team, which commenced on its cross-country ride on June 2, 2007, from New Haven, and was intended to culminate in San Francisco, California, at the end of the summer. The south team was provided with a support van known as the “SAG” van, which pulled a trailer with a sign for the HBC event. The defendant had not made any provision for signage along the route or any other means of warning or advising the public, including drivers on the highway, of the presence of the cyclists. The defendant did not coordinate efforts with local or state public safety officials to implement any safety precautions for the bicycle riders. The HBC scheduled the cyclists to ride fifty to seventy miles per day with only one day of rest out of thirty-five days of travel.

On the day in question, Daniel Lewis was acting as one of two sweep riders, riding at the end of the group traveling westward on Kansas Highway 18. There was no SAG van traveling behind them because someone was being taken to the hospital. When Daniel Lewis realized his [*4] sweep partner, Liana Woskie, was no longer immediately behind him, he crossed the highway and began cycling in an eastbound direction, and he was struck by a vehicle also traveling in an eastbound direction. As a result, Daniel Lewis suffered catastrophic and life-altering injuries.

The plaintiffs further allege that it was reasonably foreseeable that HBC participants were at risk of significant injury or death, and the defendant continued to promote and sanction the event without taking reasonable and prudent steps to minimize that risk. Particularly, the plaintiffs assert that the accident was caused by the defendant’s negligence including: organizing the event with knowledge that there had been two fatalities and other injuries in the past; failing to restrict the size or scope of the event to maximize safety; failing to properly supervise and train the participants; failing to properly gauge the skill level of the participants; failing to supervise and train the trip leaders; failing to limit days when dangerous weather conditions existed; failing to provide proper ongoing oversight and safety policy enforcement by experienced individuals during the event; failing to coordinate [*5] with public safety officials; failing to clearly post warnings and other signs about the event, in advance of and during the event, to alert the public of the presence of the cyclists; failing to require the cyclists to stay together to increase visibility; allowing financial and public relations aspects to outweigh prudent safety concerns and; choosing to conduct three separate trips when there were inadequate resources. As a direct and proximate result of the defendant’s negligence, Daniel Lewis sustained serious injuries of a permanent nature, and the plaintiffs seek damages for the costs already expended in his care and the future loss of his wages.

On December 12, 2009, the defendant filed an answer, which included a special defense alleging Daniel Lewis’ comparative negligence as well as one stating that the plaintiffs’ claims are contractually barred due to Daniel Lewis’ signing of a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement (“exculpatory agreement”). On June 10, 2011, the defendant filed a motion for summary judgment, asserting that it is entitled to judgment as a matter of law because Daniel Lewis signed the exculpatory agreement. Furthermore, [*6] the defendant argues that it did not owe a duty to Daniel Lewis, and his injuries were not caused by the defendant’s conduct. In support of its motion, the defendant submitted evidence, which included affidavits and the accident report. On August 8, 2011, the plaintiffs objected to the defendant’s motion on the grounds that the exculpatory agreement is invalid and against public policy, that the defendant owes the plaintiffs a duty of care, and that the defendant’s negligence was the legal cause of Daniel Lewis’s injuries. The plaintiffs submitted exhibits in support of their objection that included affidavits, deposition transcripts, as well as promotional materials and policy manuals distributed by the defendant. The defendant submitted a reply on August 22, 2011. The plaintiffs filed a surreply on September 22, 2011, and submitted additional exhibits including tax returns and other financial information about the defendant and the HBC fundraiser. On October 3, 2011, oral arguments were held, and the plaintiff submitted an additional page of deposition testimony by John Allen, an expert on the bicycle industry. On October 11, 2011, the plaintiffs submitted an affidavit of Craig Clark, [*7] a participant in the 2007 HBC.

DISCUSSION

[HN1] “Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). “[S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment.” (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). “Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). [*8] “Only one of the [defendant’s] defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant’s] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried.” (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).

In the present case, the defendant moves for summary judgment on the ground that Daniel Lewis signed an exculpatory agreement that releases the defendant from liability. The plaintiffs have objected on the grounds that the exculpatory agreement is not sufficiently clear to avoid liability, and furthermore, that the agreement is void as against public policy. The defendant further argues that it did not owe Daniel Lewis a duty of care to prevent injuries that he sustained and its actions were not the proximate cause of his injuries. The court first examines the threshold issue of whether the exculpatory agreement is valid before addressing the nature of the duties owed to the plaintiffs.

I. Exculpatory Agreement

[HN2] In deciding whether to enforce an exculpatory agreement, Connecticut courts first [*9] look at whether the language of the agreement expressly provides that the party will be exculpated for its own negligence. See Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 321-22, 885 A.2d 734 (2005). If the agreement is clear, it must nevertheless be consistent with public policy. Id., 326-27. The agreement in the present case is unenforceable for both lack of clarity and public policy reasons.

A. Lack of Clarity

[HN3] “[U]nless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts . . . [I]t must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility . . .” (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 322. “[A] party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides.” Hyson v. White Water Mountain Resorts of Connecticut Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003).

At oral arguments on October 3, 2011, the plaintiffs argued that [*10] the waiver was not valid because it was not a clear and conspicuous waiver of the plaintiffs’ rights. They argued that the language in the exculpatory agreement was not as strong as the language in cases where courts have found such agreements enforceable.2

2 The plaintiffs also argued that the waiver did not effectively include “conservators” among the group of individuals that were barred from bringing suit, so even if it were effective against Daniel Lewis, his parents, as conservators would be able to bring this claim against the defendant. Since the agreement is deemed unenforceable for other reasons, this court need not address whether a conservator is included within this particular agreement.

In Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 636, the court held that it could not enforce an exculpatory agreement which only referred to the risks involved in snowtubing, but which made no reference to the possible negligence of the defendant. Id., 643. In Hanks, in contrast, the court found that an exculpatory agreement that explicitly used the word “negligence” several times, and in all capital letters in contrast to the surrounding test, was sufficiently [*11] clear to be enforceable, but disallowed the agreement as invalid under public policy considerations. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 324. A subsequent exculpatory agreement case, Reardon v. Windswept Farm, LLC, 280 Conn. 153, 162, n.9, 905 A.2d 1156 (2006), dealt with an agreement that used the word negligence, but did not highlight or emphasize the text in the agreement. The Reardon court, however, did not address whether the exculpatory agreement was sufficiently explicit, but found that public policy dictated that it was unenforceable. Reardon v. Windswept Farm, LLC, supra, 280 Conn. 158. Thus, [HN4] our appellate courts have left open the question of whether a mere mention of negligence is always sufficient to make an exculpatory agreement enforceable.

There is nevertheless helpful language throughout the cases. Terms must be unambiguous as well as understandable. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 322. “[T]his does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent . . .” (Internal quotation marks omitted.) Id. The question is whether [*12] “an ordinary person of reasonable intelligence would understand that, by signing the agreement, he or she was releasing the defendants from liability for their future negligence.” Id., 324-25.

In absence of further illumination, the Supreme Court has referred to statutory authority as well as treatises and other persuasive decisions indicating that [HN5] conspicuousness was a requirement for enforcing such a waiver. See Hyson v. White Water Mountain Resorts of Connecticut, Inc. supra, 265 Conn. 641-43. The court has relied on the Restatement (Second) of Contracts, which provides that “[l]anguage inserted by a party in an agreement for the purpose of exempting him from liability for negligent conduct is scrutinized with particular care and a court may require specific and conspicuous reference to negligence under the general principle that language is interpreted against the draftsman.” Id., 642, citing 2 Restatement (Second), Contracts §195, comment (b) (1981). Additionally, while not binding, General Statutes §42a-1-201(b)(10), which is part of the Uniform Commercial Code, provides persuasive guidance. It provides: “‘Conspicuous’, with reference to a term, means so written, displayed or [*13] presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is conspicuous or not is a decision for the court. Conspicuous terms include the following: (A) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size; and (B) Language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.” General Statutes §42a-1-201(b)(10); see also Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 31 Conn.App. 455, 471, 626 A.2d 307 (1993) (applying §42a-l-201(10) to determine the validity of a disclaimer, and finding that the relevant language was sufficiently conspicuous because it was capitalized and set off from the rest of the text).

Additionally, a comment to the Restatement (Third), Torts, Apportionment of Liability §2, on Contractual Limitations on Liability, states: [HN6] “A party invoking a contractual limitation on liability [*14] must prove the existence and application of the contract . . . A contract that limits liability must be expressed in clear, definite, and unambiguous language and cannot be inferred from general language . . . When an individual plaintiff passively accepts a contract drafted by the defendant, the contract is construed strictly, favoring reasonable interpretations against the defendant. A contract is not unenforceable merely because it fails to use specific language naming the causes of action to which it applies. In a written consumer contract, the fact that language is in small print or otherwise is not conspicuous is a factor in determining whether the agreement is enforceable.” Restatement (Third), Torts, Apportionment of Liability §2, comment (d).

[HN7] Judges of this court have reached different outcomes in evaluating whether exculpatory agreements are sufficiently clear. While “[i]t is clear that explicit reference to negligence is required to render valid an agreement releasing a party from liability for his/her own negligence”; Colagiovanni v. New Haven Acquisition Corp., Superior Court, judicial district of New Haven, Docket No. CV 03 048041 (November 15, 2006, Robinson, J.) (42 Conn. L. Rptr. 423, 425, 2006 Conn. Super. LEXIS 3387, *13); [*15] it is not clear whether that is always sufficient. For instance it has been held that the phrase “ordinary negligence,” contained within an exculpatory agreement, is confusing and does not “unambiguously and explicitly [purport] to release the defendants from their prospective liability for negligence as required by Hanks.” Schneeloch v. Glastonbury Fitness & Wellness, Inc., Superior Court, judicial district of Hartford, Docket No. CV 06 5007348 (February 2, 2009, Domnarski, J.) (47 Conn. L. Rptr. 183, 185, 2009 Conn. Super. LEXIS 191, *7); but see Corso v. United States Surgical Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. 487002, 2005 Conn. Super. LEXIS 1373 (May 25, 2005, Levin, J.) (granting summary judgment in favor of a defendant because the release waiver explicitly referred to the defendant’s future negligence).

In the present case, the agreement’s language states in relevant part: “I agree, for myself, my heirs, executors and administrators, to not sue and to release, indemnify and hold harmless Habitat for Humanity of Greater New Haven, its affiliates, officers, directors, volunteers and employees and all sponsoring businesses and organizations and their agents and employees, from any and all liability, [*16] claims, demands and causes of action whatsoever, arising out of my participation in the Challenge and related activities–whether it results from the negligence of any of the above or from any other cause. I agree not to make a claim against or sue Habitat for Humanity or other sponsors or affiliated organizations for injuries or damages related to bicycling and/or other activities during the Challenge.”

The court agrees with the plaintiff that the agreement does not meet the level of clarity that was present in the agreement in Hanks. Here, the mere use of the word “negligence of any of the above,” within the text of a lengthy sentence consisting of multiple interrelated clauses, does not rise to the level of clarity required to enforce an exculpatory agreement against an individual. The language waiving the plaintiffs’ right to sue the defendants for the defendants negligence is not conspicuous, as no effort has been made to set the word negligence off from the rest of the text. Furthermore, the particular paragraph in which the provision appears is not set off by headings or any other marker from the remainder of the two-page agreement. The court concludes that a reasonable individual [*17] reading such an agreement would not be sufficiently informed that he or she is waiving the right to sue the defendant for its own negligent conduct. On the face of the agreement, it is insufficiently clear or explicit to be enforceable. Accordingly, the defendant may not prevail on its motion for summary judgment on the basis of the agreement.

B. Public Policy

[HN8] Even if an exculpatory agreement is clear enough to be enforced, it is nevertheless unenforceable if it violates public policy. See Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 326. The defendant argues that the exculpatory agreement does not violate public policy under the circumstances and thus bars the plaintiffs from bringing a claim for negligence. The plaintiffs argue that the exculpatory agreement violates public policy under Connecticut law. The court agrees with the plaintiffs.

[HN9] “Although it is well established that parties are free to contract for whatever terms on which they may agree . . . it is equally well established that contracts that violate public policy are unenforceable . . . [T]he question [of] whether a contract is against public policy is [a] question of law dependent on the circumstances of the [*18] particular case . . .” (Citations omitted; internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 326-27. The Supreme Court has adopted the six-factor test established in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (1963), as part of the standard for establishing whether a exculpatory agreement violates public policy. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 328-30.

[HN10] The six factors that the Tunkl court established, and the Supreme Court has adopted for application in Connecticut are: “[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a [*19] decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Internal quotation marks omitted.) Id., 328.

[HN11] The Tunkl factors, however, are not purely dispositive of this issue as “[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” (Internal quotation marks omitted.) Id., 330. Whether an exculpatory agreement is enforceable may be further determined by “any other factors that may be relevant given the factual circumstances of the case and current societal expectations.” Id. “[A]n exculpatory agreement may affect the public interest adversely even if some of the Tunkl [*20] factors are not satisfied.” Id., 328.

[HN12] “Exculpatory provisions, in general, undermine the public policy considerations governing our tort system. ‘[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required. An equally compelling function of the tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.’ (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998).” Colagiovanni v. New Haven Acquisition Corp., supra, 42 Conn. L. Rptr. 426, 2006 Conn. Super. LEXIS 3387, *18. “[I]t is consistent with public policy to posit the risk of negligence upon the actor and, if this policy is to be abandoned, it has generally been to allow or require that the risk shift [*21] to another party better or equally able to bear it, not to shift the risk to the weak bargainer.” (Internal quotation marks omitted.) Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC., 119 Conn.App. 703, 716, 989 A.2d 1075 (2010).

Analysis under the Tunkl factors and the totality of the circumstances weighs in favor of the plaintiffs, and against enforcement of the exculpatory agreement that Daniel Lewis signed before embarking on the HBC. The facts relating to each individual factors are not always clearly delineated and tend to overlap, but overall the factors weigh against enforcing the present exculpatory agreement under the circumstances.

The court first looks at the first factor, which concerns whether “[the agreement] concerns a business of a type generally thought suitable for public regulation.” Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 328. Regarding the first factor, the agreement concerns the HBC, where the defendant was engaged in an activity suitable for public regulation. The defendant was raising funds for a charitable purpose, recruiting students to act as volunteer fundraisers and representatives while they engaged in a cycling expedition across [*22] the continental United States. The HBC is a fund raising program for a not-for-profit organization, and such organizations are susceptible to rules and regulations in order to maintain their tax exempt status. Moreover, the specific activity central to the parties’ agreement involved travel on public highways used for motor vehicles. [HN13] Highway travel and related public safety issues are areas which are subject to heavy regulation on a state and federal level. See e.g., General Statutes §§14-1 through 14-249 (regulating the areas of motor vehicles and use of the highway by vehicles).

In the present case, the defendant argues that organized bicycle racing is not a subject of public regulation. The defendant cites foreign case law, including Okura v. United States Cycling Federation, Inc. 186 Cal.App.3d 1462, 1465-68, 231 Cal. Rptr. 429 (1986), for this premise. While the HBC was organized around cycling, the event in question was not the same as an ordinary sporting competition. Here, the participants were not simply engaging in a recreational bicycle ride, but were involved in the larger mission of the defendant, raising funds and awareness through presentations; P. Exh. 7, Affidavit [Af.] [*23] of Sara Barz; participating at building sites across the country; P. Exh. 4, Af. of Liana Woskie; Defendant’s [D] Exh. 2, Af. of William Casey; Exh. 6, Af. of Patrick Muha ¶16; and complying with specific conduct requirements for participants in the event. P. Exh. 5, Af. of Christopher Gombeski.

The second factor weighs whether “[t]he party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.” Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 328. The defendant is engaged, ultimately, in a service that is important to the public, namely fund-raising to meet the goal of building houses for the poor. Nevertheless, the HBC may be somewhat tangential to that defendant’s central charitable goals. The defendant argues that this case does not involve an issue of great importance because the HBC was similar to an organized leisure time activity. However, as discussed above, the participants in the HBC were working not only on their trip across the country, but making daily presentations, building houses, and raising funds to build homes for the poor. Thus, the HBC did involve [*24] tasks and goals that are important to the public rather than just cycling for its own sake.

Thirdly, the court evaluates whether “[t]he party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.” Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 328. In the present case, any individual could apply to participate in the HBC.3 There were certain criteria for admissions, but the court credits the plaintiffs’ argument that the admissions criteria did “not negate the public aspect of the event.” The evidence shows that the event was roughly comprised half of Yale students and half of “distant” riders, who were individuals that did not attend Yale and applied to be a part of the event.4 See P. Exh. 10, pp.4-6. While HBC applicants had to meet certain criteria in order to ultimately participate, it was not so limiting as to remove the event from the public sphere. This was therefore a situation in which the defendant sought participation of members of the public meeting certain established standards.

3 The criteria for selecting applicants indicates that a wide range of individuals [*25] would apply to the program, and instructs the group leaders to choose individuals within a certain age range to avoid group dynamics that may develop with older participants. See P. Exh. 14, p. 16.

4 It is also worth noting that “distant” participants were subject to different training regimens, and largely had to find ways of training on their own in their location. See P. Exh. 14.

The last three Tunkl factors are as follows: “[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 328.

In [*26] analyzing these elements, the Supreme Court’s decision in Brown v. Soh is instructive. In that case, the court held “that [HN14] exculpatory agreements in the employment context violate Connecticut public policy.” Brown v. Soh, supra, 280 Conn. 503. In reaching that conclusion, the court stated: “We further note than an employer . . . possesses a decisive advantage of bargaining strength against the plaintiff employee. Considering the economic compulsion facing those in search of employment . . . [t]o suppose that [a] plaintiff . . . had any bargaining power whatsoever defies reality . . . It is also highly significant that, in exercising this superior bargaining power, the [defendant] confronted the plaintiff with a standardized adhesion contract of exculpation. The agreement signed by the plaintiff was offered . . . on a ‘take it or leave it’ basis . . . The most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts, and they tend to involve standard form contract[s] prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms . . . [I]t would ignore [*27] reality to conclude that the plaintiff wielded the same bargaining power to determine the terms of the exculpatory agreement as the [defendant], which required him to sign it. He had nearly zero bargaining power with respect to the negotiation of the [exculpatory agreement] and in order to participate in the activity [the plaintiff] was required to assume the risk of the defendants’ negligence . . . [HN15] Another important consideration in deciding if an exculpatory agreement violates public policy is whether the signatory will be under the control of the person seeking exculpation from negligence and subject to the risk of that person’s carelessness. By definition, an employee agrees to be under the control of the employer and is therefore exposed to the employer’s carelessness . . . In the employment context, the employer generally has the greater ability to avoid harm because the employer chooses the workplace and assigns tasks to the employees. As we previously have noted, it is consistent with public policy to posit the risk of negligence upon the actor and, if this policy is to be abandoned, it has generally been to allow or require that the risk shift to another party better or equally [*28] able to bear it, not to shift the risk to the weak bargainer . . . If employers were permitted to obtain broad waivers of their liability, an important incentive to manage risk would be removed. It would be unwise, in these circumstances, to undermine the public policy underlying the allocation of risk in tort law by allowing employees to bear risks they have no ability or right to control. Moreover, we note that our conclusion is consistent with the view of the American Law Institute, as embodied in 2 Restatement (Second), Contracts §195 (1981), and 2 Restatement (Second), Torts §496B, comment (f) (1965).” (Citations omitted; internal quotation marks omitted.) Brown v. Soh, supra, 280 Conn. 504-06.

The analysis of the Brown court applies to the facts of the present case as well. While there was not a formal employment relationship between Daniel Lewis and the defendant, it is apparent that the defendant had control over the plaintiff in many aspects of the relationship. Firstly, the defendant had power in selection and dismissal over the participants in the HBC. During the course of the summer-long event, all of the participants were subject to the defendant’s control. While the defendant [*29] could not control weather or other road conditions, it did control most other aspects of the cross-country event. The defendant determined the route of travel, the daily mileage traveled, availability of signage warning drivers of the cyclists’ presence, notification of local authorities who could coordinate safety measures on the local level, the selection of trip leaders and sweep riders, the presence of support vehicles, the participants’ training and riding tests, and finally, the locations of the stops along the way and the time table which set the pace by which the cyclists had to reach each destination. There were many factors that participants could not adjust even if based on a participant’s own judgment or knowledge.

The “HBC Rules and Policies” offered into evidence by the plaintiffs illustrate that the defendant was indeed in control of Daniel Lewis while he was engaged in the HBC. There were prohibited behaviors and language specifically stating that the riders “represent Habitat for Humanity.” There were specific rules regarding safety on the cycling path and the conduct of participants, including regimented daily schedules, rules regarding relationships between participants, [*30] language, alcohol and drug use, and how participants were to conduct themselves in the presence of their hosts along the route. See P. Exh. 10. The cyclists wore jerseys with the defendant’s logo on them; P. Exh. 15, Photographs of Habitat Shirts; and rode bicycles that were purchased for them by the defendant. See P. Exh. 14, pp. 39-42. Participants had to comply with these requirements and rules in order to continue their journey.5 Even though there is some evidence that the policies were inadequately enforced, the participants were not completely free actors of their own will and they were similar to employees in that many aspects of their participation were under the defendant’s control and they could be dismissed by the defendant for violation of policies.

5 The materials in evidence stated: “Reckless biking will not be tolerated and is grounds for immediate expulsion from the trip . . . Helmet use is required at all times while riding on the Habitat Bicycle Challenge. No riding while intoxicated or under the influence of any drug. Not only is this dangerous, it is also illegal almost everywhere and it is grounds for immediate expulsion from the trip. No riding after dark. No riding [*31] while wearing headphones . . . Never ride on an interstate unless a leader tells you to and the leader has checked with the state police . . . Never ride more than double file . . . Bike in the shoulder, not in the lane with traffic . . . Never cross the yellow line into oncoming traffic . . . Only leaders can drive the van. This is for insurance reasons.” P. Exh. 14 p. 64, HBC Rules and Policies.

It is also apparent that, as a prospective applicant for the HBC, Daniel Lewis would have been subject to a power imbalance when presented with an exculpatory agreement. Applicants were required to sign the exculpatory agreement before being allowed to participate. As in Brown, this created a “take it or leave it” situation in which HBC participants were virtually powerless in affecting the terms of the exculpatory agreement. Moreover, there is no evidence that there was a possibility of negotiation between the parties before the exculpatory agreement was signed by Daniel Lewis or any other participant.6

6 The defendant argues that the plaintiffs fail to offer any evidence that Daniel Lewis ever attempted to negotiate the contract or that other participants had made such an attempt. The court [*32] notes, however, that [HN16] “[i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). Accordingly, it is incumbent on the defendant, as the summary judgment movant, to establish that individuals were in fact able to negotiate the exculpatory agreement before signing it.

Daniel Lewis was clearly in the relatively weaker position as an individual student applicant when compared to a not-for-profit organization that had arranged and managed this expansive event for several years. Furthermore, there is no indication that [*33] Daniel Lewis had an opportunity to raise more funds or pay a fee in exchange for more protection from the defendant’s negligence or even to obtain from the defendant additional insurance to cover himself while he was traveling on its behalf.7 The facts presented by the record indicate that this agreement was indeed an adhesion contract, and not an agreement that was negotiated between two parties on equal footing.

7 The training materials state that “Habitat for Humanity provides a supplemental insurance policy which will help cover medical expenses your personal insurance does not.” P. Exh. 10, Rider Manual, p. 30. There is no indication what the scope of this insurance was, and the defendant has not provided evidence that the participants were indeed able to purchase additional coverage.

In addition to the Tunkl factors, the totality of the circumstances indicate that this exculpatory agreement is unenforceable as a matter of public policy. While it is noteworthy that the defendant was engaged in a worthwhile cause, namely, alleviating poverty and homelessness, there is no indication that the organization should be allowed to place the risk of its potential negligence on the individual [*34] participants if there was no way to organize this event in a safer manner. Placing the burden of the defendant’s potential negligent conduct on the individual participants who are attempting to contribute to a charitable cause flies in the face of current societal expectations.

Furthermore, the defendant maintains a $5 million insurance policy, which further indicates the defendant’s status as the party in the best position to assume the risk of its own negligence.8 In this case, given the totality of the circumstances, the defendant should not be allowed to be exculpated from its potential negligence in hosting and organizing the HBC. Ultimately, enforcing this agreement would effectively allow the defendant to receive all of the benefits of having individuals raise money through the HBC event, but bear none of the risks caused by its own actions in organizing such an event. Accordingly, the court finds, based on the guidance provided in Tunkl and established in Connecticut law by Hanks and Brown, that the exculpatory provision in this case violates public policy and thus is unenforceable.

8 [HN17] The Supreme Court has considered insurance coverage, or the ability to carry insurance as a factor [*35] in deciding whether to uphold an exculpatory agreement. See Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 332-33 (finding that an agreement was unenforceable where the party excusing itself was more able to insure itself and spread the cost of insurance than the signatory).

II. Duty

The defendant argues that it is entitled to summary judgment because it did not owe Daniel Lewis a duty of care. The plaintiffs argue in response that the defendant owed Daniel Lewis a duty to exercise reasonable care to protect his safety because his injuries were foreseeable and because public policy supports recognition of a duty under the circumstances presented here.

[HN18] “Negligence involves the violation of a legal duty [that] one owes to another, in respect to care for the safety of the person or property of that other . . . The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” O’Donnell v. Feneque, 120 Conn.App. 167, 171, 991 A.2d 643, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010). “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.” [*36] (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). “Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . .” (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

However, [HN19] “[t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.” (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.” (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006). “Duty is a legal conclusion about relationships between [*37] individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.” (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).

[HN20] “The test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis.” Monk v. Temple George Associates, LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005). “[O]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” (Citations [*38] omitted; internal quotation marks omitted.) Allen v. Cox, supra, 285 Conn. 610.

The defendant and plaintiffs disagree on the scope of foreseeability in this instance. The defendant argues that, in order for it to have owed Daniel Lewis a duty of care, it must have been specifically foreseeable that Daniel Lewis would suddenly veer in front of a car when participating in the HBC. The plaintiffs, on the other hand, argue that the foreseeability requirement is met if it was reasonably foreseeable to the defendant that, if it did not take additional steps to ensure the safety of cyclists, it increases the likelihood that cyclists would be struck by vehicles and seriously injured, regardless of the exact chain of events leading to the collision. The court agrees with the plaintiffs.

As previously stated, it is well established Connecticut law that “the test [for foreseeability] is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” (Emphasis added; internal quotation marks omitted.) Allen v. Cox, supra, 285 Conn. 610. Accordingly, there is no legal basis for [*39] the defendant’s assertion that Daniel Lewis’ injuries in the present case were unforeseeable because the defendant could not have foreseen the very specific mechanism by which the injuries occurred, namely, that Daniel Lewis suddenly and without warning veered in front of a moving vehicle. Rather, the question for the court to determine is whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would have anticipated that serious injuries to cyclists were likely to occur as a result of collisions with motor vehicles. The evidence submitted in connection with the present motion leads to a conclusion that such injuries were reasonably foreseeable.

The evidence shows that the defendant had experience in planning the HBC as an annual event for many years before the 2007 event was organized, so it was in the position to know more about the risks and dangers that were foreseeable with the event. See D. Exh. 2, Af. of William Casey. The HBC event had resulted in past injuries and deaths including the death of a cyclist as a result of a collision with a vehicle during the 2005 HBC. P. Exh. 8, Af. of Sam Gutner; P. Exh. 20, HBC Risk Management [*40] document. There is also evidence of an additional death associated with the HBC. P. Exh. 9, Af. of Andrew Wagner; P. Exh. 20, HBC Risk Management document. Several of the participants had accidents during the 2007 HBC including one individual being swiped by a car, and one “flipping” over the handlebars when losing concentration. P. Exh. 9, Af. of Andrew Wagner.

Notwithstanding this past history of serious injuries and death associated with the event, there was little to no coordination with law enforcement agencies or officials along the HBC south route. Moreover, other than the Habitat for Humanity sign on the back of the support van and the HBC jerseys worn by the riders, there were no signs or other notices to the public along the route warning of the presence of cyclists. P. Exh. 8, Af. of Sam Gutner.

The plaintiffs have provided further evidence that on the day in question, the temperature was high and there was low humidity. See P. Exh. 8, Af. of Sam Gutner; Exh. 6, Af. of Patrick Muha. Other conditions along the route in Kansas included winds and nearly continuous sun exposure along the route. Id. The south route was considered the most difficult and challenging of the HBC routes. [*41] P. Exh. 8; P. Exh. 9, Af. of Andrew Wagner; P. Exh. 14. The plaintiffs offer testimony that Kansas in particular was difficult because it was “boring and monotonous” and because of the “long stretches of low hills, the heat and the wind, and the fact that it occurs after several weeks of cycling.” P. Exh. 6; P. Exh. 8; P. Exh. 9. There is evidence that cyclists can suffer from “Directed Attention Fatigue” as a complication of cycling over long distances in monotonous circumstances. P. Exh. 22, Af. of Glen Steimling, Ph.D. ¶9; P. Exh. 27, Af. of Jeffry L. Kashuk, M.D., ¶¶17-21. The participants were never trained in rural conditions outside of New Haven before embarking on the HBC in 2007. See P. Exh. 17, Af. of Elizabeth J. Sanders. A participant has stated she felt unprepared and that she did not think the trip was a safe venture. Id.

In sum, the plaintiff has submitted ample evidence indicating that the defendant was aware of prior injuries, including deaths, that had occurred as a result of collisions between cyclists and vehicles during the HBC in years prior to 2007. The plaintiffs’ evidence also indicates that, notwithstanding the defendant’s knowledge of these past serious injuries, [*42] it continued to hold the cross-country cycling event, along a very difficult route, without significant coordination with local law enforcement authorities, and without instituting measures to provide signs or other notices along the route cautioning drivers of the presence of cyclists. While not conclusive at this stage in the proceedings, this evidence, when viewed in the light most favorable to the plaintiff, demonstrates that it was foreseeable to the defendant, in light of all of the information available to it at the time that there was a likelihood of future serious injuries to cyclists caused by collisions with vehicles during the HBC. The defendant has failed to demonstrate the nonexistence of a duty on foreseeability grounds.

Nor can the defendant prevail on its argument that there is no duty as a matter of public policy. [HN21] “Foreseeability notwithstanding, it is well established that Connecticut courts will not impose a duty of care on the defendants if doing so would be inconsistent with public policy.” (Citations omitted; internal quotation marks omitted.) Monk v. Temple George Associates, LLC, supra, 273 Conn. 116. “[I]n considering whether public policy suggests the imposition [*43] of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.” (Internal quotation marks omitted.) Id., 118.

These enumerated factors weigh heavily in support of recognizing a duty in the present case. The normal expectation of volunteers in a cross-country cycling event organized by a not-for-profit organization for fund raising and awareness purposes would be that the organization will take reasonable steps for their safety while participating in the event. At the same time, the organizers of the event should expect that such an event creates countless opportunities for injuries and should expect to have to take such reasonable steps to promote safety. Furthermore, imposing a duty that the organizer exercise due care to keep participants safe will both encourage participation in such events and increase the safety of participants. While imposing a duty could be expected to increase litigation somewhat, the type [*44] of event organized by the defendant is not so common that there is any serious risk of an unreasonable or inappropriate increase in litigation. See Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 703, 849 A.2d 813 (2004) (“this third factor focuses upon the diminishment of an inappropriate flood of litigation” [emphasis in original]). Finally, due to the very unique facts of the present case, there is a dearth of case law from other jurisdictions shedding light on this issue. Nevertheless, because all of the other prongs of the public policy analysis strongly favor recognition of a duty in the present case, the defendant cannot prevail on its argument that it owed Daniel Lewis no duty.

III. Causation

The defendant argues that it is entitled to summary judgment because any negligence on its part was not a proximate cause of Daniel Lewis’ injuries. Specifically, the defendant repeats its argument that the immediate cause of Daniel Lewis’ injuries was the plaintiff veering into oncoming traffic, which was too remote and unforeseeable from any actions of the defendant to provide a basis for liability. The defendant also argues that all of the allegations of negligence against it [*45] are premised on the inherent and unavoidable risks of long distance cycling. The plaintiffs respond that they have alleged specific acts of negligence by the defendant that created or increased the risk that Daniel Lewis would collide with a vehicle, and that there is evidence supporting a conclusion that such negligence was a substantial factor in causing his injuries.

[HN22] To show legal cause, “[a] plaintiff must establish that the defendant’s conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct . . . The second component of legal cause is proximate cause . . . [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise.” O’Donnell v. Feneque, supra, 120 Conn.App. 172. [*46] “[T]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Internal quotation marks omitted.) Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 249, 943 A.2d 430 (2008). Compare Kumah v. Brown, 130 Conn.App. 343, 351, 23 A.3d 758 (2011) (finding that the defendant could not have reasonably been found to be the proximate cause of the plaintiff’s injuries when the defendant was involved in a motor vehicle accident several hours beforehand).

The defendant’s argument regarding foreseeability of the particular accident that occurred in the present case has already been addressed in the section of this memorandum dealing with duty. As stated there, the evidence, when viewed in the light most favorable to the plaintiff, demonstrates that it was foreseeable that there was a likelihood of future serious injuries to cyclists caused by collisions with vehicles during the HBC if the defendant [*47] failed to exercise reasonable care to provide for the safety of participants. The defendant need not have anticipated the exact scenario under which the collision actually occurred.

Furthermore, the court disagrees with the defendant that all of the allegations of negligence here are based on inherent and unavoidable risks of long distance cycling. On the contrary, the gravamen of the allegations of negligence is that the risks associated with the HBC could have been lessened or eliminated had the defendant not been negligent. For example, as stated previously, the plaintiffs allege that the defendant could have taken actions such as restricting the size or scope of the event to maximize safety, limiting cyclists’ exposure to extreme weather conditions, coordinating with local public safety officials, and posting warnings and other signs about the event to alert the public of the presence of the cyclists.

Although the defendant asserts that the plaintiff has failed to demonstrate causation, “[i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment [*48] has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Emphasis added; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). [HN23] “On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Emphasis added; internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 850-51, 939 A.2d 1249 (2008).

Accordingly, on the causation issue, it is the defendant’s burden to negate each claim set forth in the plaintiff’s complaint by submitting [*49] evidence that establishes the nonexistence of any genuine issue of fact. In other words, the defendant must demonstrate that Daniel Lewis’ injuries were not proximately caused by any of the alleged negligent acts or omissions set forth in the plaintiffs’ complaint. The defendant has failed to do so. For example, to take just two of the allegations of the complaint, the defendant has not submitted evidence demonstrating that the lack of signs along the event route or the failure of the defendant to coordinate with local authorities were not substantial factors in bringing about Daniel Lewis’ injuries. See O’Donnell v. Feneque, supra, 120 Conn.App. 172 (“[t]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries”).

Moreover, even if the defendant had made a sufficient showing to meet its burden as the movant for summary judgment, the plaintiff’s evidence presents issues of material fact as to the proximate cause of Daniel Lewis’s injuries. The plaintiff’s have presented evidence and testimony of experts and witnesses that could support a finding that the defendant’s actions proximately caused the alleged injuries. [*50] See P. Exh. 21 Af. and Supplemental Af. of W. Preston Tyree, III; P. Exh. 22, Af. of Glenn Steimling, Ph.D; P. Exh. 27, Af. of Jeffry Kashuk, MD. The plaintiffs provide the testimony of Preston Tyree, an expert on cycling safety, which states that the way the event was organized, including the routes and the lengths of the days, was of such a nature that it could reasonably be expected to cause physical and mental fatigue that could affect cyclists’ alertness and judgment. He also testifies that races and long-term cycling should be organized to allow the cyclists to make as few decisions as possible including whether they should have a break or drink water. P. Exh. 23, transcript of deposition of Tyree. There is evidence that on the day in question, the conditions were “brutal” where it was hot and “very, very windy” in addition to the monotony of the Kansas roads. P. Exh. 6 ¶18; P. Exh. 8 ¶¶24-25. Daniel Lewis is unable to testify as to his condition or mental state at the time of the accident, but the plaintiffs have offered evidence that there is potentially a causal link between the actions of the defendant and the injuries sustained by Daniel Lewis, particularly in planning the [*51] event, providing the participants support and adjusting for the conditions the participants were facing.

Because the defendant has failed to demonstrate that, as a matter of law, its alleged acts and omissions were not substantial factors in causing Daniel Lewis’ injuries, the court will not grant summary judgment on the basis of causation.

CONCLUSION

For the foregoing reasons, the motion for summary judgment filed by the defendant Habitat for Humanity of Greater New Haven, Inc. is denied.

Frechette, J.


Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257

Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257

Bruce Galvan, et al., Plaintiffs, v. The Salvation Army, Defendant.

CIVIL ACTION NO. H-10-3365

United States District Court For The Southern District Of Texas, Houston Division

2011 U.S. Dist. LEXIS 47257

May 3, 2011, Decided

May 3, 2011, Filed

CORE TERMS: Charitable Immunity Act, summary judgment, Charitable, amount of damages, conspicuousness, premature, matter of law, own negligence, settlement, affirmative defense, font, charitable organization, liability insurance coverage, per person, per occurrence, notice requirements, bodily injury, jury verdict, conscious indifference, reckless disregard, self-insurance, conspicuous, discovery, retention, qualify, cap, insurance coverage, enforceable, undisputed, attended

COUNSEL: [*1] For Bruce Galvan, Individually and as Next Friend, Cynthia Perez, Individually And as Next Friend, Plaintiffs: John Paul Venzke, LEAD ATTORNEY, The Venzke Law Firm LLP, Houston, TX; Michael Andrew Fisher, Dyment & Fisher, Houston, TX.

For Salvation Army, Defendant: Teresa Jones Del Valle, LEAD ATTORNEY, Del Valle Law Firm, P.C., Houston, TX.

JUDGES: Nancy F. Atlas, United States District Judge.

OPINION BY: Nancy F. Atlas

OPINION

MEMORANDUM AND ORDER

This personal injury case is before the Court on the Motion for Partial Summary Judgment Regarding Defendant’s Affirmative Defense of Release (“Release Motion”) [Doc. # 23] filed by Plaintiffs Bruce Galvan and Cynthia Perez. Defendant filed an Opposition [Doc. # 27], and Plaintiffs filed a Reply [Doc. # 28]. Also pending is Plaintiffs’ Motion for Partial Summary Judgment Regarding Defendant’s Defense of The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Motion”), to which Defendant filed an Opposition [Doc. # 29], and Plaintiffs filed a Reply [Doc. # 34]. Having reviewed the full record and having considered relevant legal authorities, the Court grants the Release Motion and denies without prejudice the Charitable Immunity Motion.

I.FACTUAL BACKGROUND

Plaintiffs [*2] Bruce Galvan and Cynthia Perez are parents of Plaintiff Christopher Galvan. Christopher was eleven years old when he attended Camp Hoblitzelle, a facility owned and operated by Defendant The Salvation Army. In June 2010, while at Camp Hoblitzelle, Christopher Galvan fell 40-50 feet from a zip-line and was seriously injured. Before Christopher attended Camp Hoblitzelle, Cynthia Perez signed a “Permission/Waiver Form for Residential Camps.” See Exh. A to Release Motion.

Plaintiffs filed this lawsuit seeking to recover from The Salvation Army for the injury to Christopher Galvan. Defendant has asserted the existence of the Release as an affirmative defense. Defendant has asserted also that The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Act”) limits its liability in this case to $500,000.00 per person and $1,000,000.00 per occurrence. Plaintiffs have moved for summary judgment on each of these arguments. The motions have been fully briefed.

II.STANDARD FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing [*3] of the existence of an element essential to the party’s case for which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). In deciding a motion for summary judgment, the Court must determine whether the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). Summary judgment is an appropriate mechanism for resolving issues of law arising from a materially complete factual record. See Trevino v. Yamaha Motor Corp., 882 F.2d 182, 184 (5th Cir. 1989).

III.RELEASE MOTION

Defendant has asserted the existence of the Release signed by Cynthia Perez as an affirmative defense. Plaintiffs argue that they are entitled to summary judgment on the release defense because the Release in this case fails to satisfy the [*4] requirements for it to be enforceable.

Under Texas law, there are two fair notice requirements for release agreements: (1) the express negligence doctrine and (2) the conspicuousness requirement. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). The conspicuousness requirement provides that the releasing language must be conspicuously written, such that a reasonable person would have noticed it. See Dresser, 853 S.W.2d at 511. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself. See Reyes, 134 S.W.3d at 192 (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274-75 (Tex. 1997)); Dresser, 853 S.W.2d at 511.

Compliance with [*5] the fair notice requirements is a question of law for the Court. Dresser, 853 S.W.2d at 509. A release that fails to satisfy both of the two requirements is unenforceable as a matter of law. Storage & Processors, 134 S.W.3d at 192. In this case, the Court concludes that the Release asserted by Defendant does not satisfy either requirement.

The Release provides that the signer “hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” See Release, Exh. 1 to Release Motion. As an initial matter, the Release purports to release Defendant from liability for injury suffered while participating in any “Activity.” The “Activity” is to be identified by filling in a blank line on the Release form. On the Release at issue in this case, the “Activity” line contains no identified activity but, instead, has “Cynthia Perez” written in as the “Activity.”

More importantly, the Release language does not specifically state that Defendant is being released from liability for its own future negligence. Indeed, there is no express mention of negligence at all. Although there is no requirement that [*6] the release contain the specific word “negligence,” the intent to release a party from liability for its own negligence must be clearly expressed. See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 1989); Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 290 (Tex. App. — Beaumont 2005, review denied). In the Release at issue in this case, there is no clear expression of an intent to release Defendant from its own negligence in connection with Christopher Galvan’s participation in zip-lining.

The Release fails also to satisfy the conspicuousness requirement. The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.

The Court concludes that the Release in this case does not satisfy the express negligence or conspicuousness requirements and, as a result, the Release is not enforceable as a matter of law.

IV.CHARITABLE IMMUNITY MOTION

The Charitable Immunity Act limits liability of a qualified charitable organization to $500,000.00 per person and [*7] $1,000,000.00 per occurrence. See Tex. Civ. Prac. & Rem. Code § 84.006. To qualify for the limitation, the charitable organization must have liability insurance coverage “in the amount of at least $500,000 for each person and $1,000,000 for each single occurrence for death or bodily injury . . ..” See Tex. Civ. Prac. & Rem. Code § 84.007(g). The Charitable Immunity Act provides that the liability insurance coverage “may be provided under a contract of insurance or other plan of insurance authorized by statute and may be satisfied by the purchase of a $1,000,000 bodily injury and property damage combined single limit policy.” See id.

Defendant asserts that it is entitled to the damages limitation of the Charitable Immunity Act. It is undisputed that Defendant has over $35,000,000.00 of insurance coverage. It is also undisputed, however, that the first $500,000.00 is in the form of a self-insurance retention and the next $4,500,000.00 is in the form of The Salvation Army’s Risk Trust. Plaintiffs argue that Defendant is not entitled to the damages limitation because Defendant is self-insured and self insurance does not meet the statutory requirement of the Charitable Immunity Act. 1

1 Plaintiffs [*8] also argue that Defendant is judicially estopped to assert the Charitable Immunity Act’s limitation because a different Salvation Army entity in Maine asserted in a lawsuit in 1997 that the Salvation Army entity in Maine did not have insurance coverage. The Court concludes on this limited record that Plaintiffs have not established an adequate factual basis for judicial estoppel to apply.

Plaintiffs in this case have not alleged an amount of damages. They allege that the amount in controversy is in excess of $75,000.00. See Amended Complaint [Doc. # 16], ¶ 1. Plaintiffs allege also that Christopher Galvan’s medical bills exceed $200,000.00. See id., ¶ 5. Thus, on this record, the specific amounts alleged by Plaintiffs do not exceed the Charitable Immunity Act’s limitation. Moreover, the amount of damages has not been established by either settlement or a jury award to be in excess of the Charitable Immunity Act’s limitation. As a result, the Court concludes that a decision on whether the limitation applies to a fully-funded self insurance retention is premature at this stage of the proceedings. See, e.g., Morgan v. Fellini’s Pizza, Inc., 64 F. Supp. 2d 1304, 1316, n.6 (N.D. Ga. 1999) [*9] (noting that a request for summary judgment as to whether a damages cap applies was premature); Rafferty v. Howard, 2010 U.S. Dist. LEXIS 98423, 2010 WL 3768142, *1 (S.D. Miss. Sept. 20, 2010) (holding that preliminary ruling on whether statutory cap applies was premature). If there is a settlement or jury verdict for more than $1,000,000.00 in this case, the Court will at that time decide whether Defendant qualifies for the Charitable Immunity Act’s limitation.

Additionally, the Charitable Immunity Act provides that its limitations do not apply “to an act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” See Tex. Civ. Prac. & Rem. Code § 84.007(a). Plaintiffs specifically allege that Defendant’s actions in this case were “intentional, willfully negligent, or done with conscious indifference or reckless disregard for the safety of Christopher Galvan and others.” See Amended Complaint [Doc. # 16], ¶ 12. Should the jury find that Defendant’s actions were as alleged by Plaintiffs in paragraph 12 of the Amended Complaint, the issue regarding whether self-insurance satisfies the insurance requirement of the Charitable Immunity Act [*10] would become moot.

V.CONCLUSION AND ORDER

The release relied upon by Defendant satisfies neither the express negligence doctrine nor the conspicuousness requirement. As a result, there has been no effective release of Defendant for its alleged negligence in this case. Plaintiffs have not alleged an amount of damages and no amount of damages has been determined either through settlement or by jury verdict. As a result, it is premature to decide whether the Act limits the amount of damages recoverable in this case. It is, therefore,

ORDERED that Plaintiffs’ Release Motion [Doc. # 23] is GRANTED and Plaintiffs’ Charitable Immunity Motion [Doc. # 26] is DENIED WITHOUT PREJUDICE as premature.

SIGNED at Houston, Texas this 3rd day of May, 2011.

/s/ Nancy F. Atlas

Nancy F. Atlas

United States District Judge


Texas makes it easier to write a release because the law is clear.

Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257

Too bad no one read the law to the Salvation Army in this case.

This case was filed in the Federal District Court of the Southern District of Texas. The decision was based on a Motion for Summary Judgment filed by the plaintiff to throw out the defendant’s defense of release. Normally, these types of motions are filed by the defendants to end the litigation not by the plaintiff. There was also an issue of whether the charitable immunity statute applied to limit the damages in the case.

The facts which gave rise to the case are the defendants were parents of an eleven year-old boy who attended Camp Hoblitzelle which was owned and operated by the Salvation Army of Texas. While attending the camp the minor was riding a zip line when he fell 40-50’ suffering unnamed injuries.

There was a blank in the release where the activity the parties were releasing was to be filled in. The blank line in this case was filled in with the plaintiff’s name Cynthia Perez written in as the activity. The court took delight in pointing this out.

Summary of the case

The plaintiff filed their motion for summary judgment to eliminate the defense of release. The minor’s mother signed the Permission/Waiver Form for Residential Camps prior to the minor attending camp.

Under Texas law, there are two tests to determine if a release is valid; (1) the express negligence doctrine and (2) the conspicuousness requirement test.

“A release that fails to satisfy both of the two requirements is unenforceable as a matter of law.”

The Express Negligence Doctrine is:

The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document.

The release in this case used the language “…hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” This language was not strict enough to place the signor on notice that they were giving up their legal rights according to the court.

The release was not clear. It did not state that the defendant was being released for its future negligence. Although there is no requirement that the word negligence be in the release and referenced, it is clear the release would be difficult to write without the word negligence. The court held the release at issue had no clear expression or language showing intent to release the defendant from its own negligence.

Consequently, the release failed the Express Negligence Doctrine.

The Conspicuousness requirement test requires.

… the releasing language must be conspicuously written, such that a reasonable person would have noticed it. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself.

With regard to the conspicuousness, requirement test the court stated.

The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.

Here is a great example that your release cannot hide the important legal language from anyone signing it.

The court also looked into the Charitable Immunity Act and held the issue was not ripe because whether or not the defendant was subject to the limitation of damages would not be an issue unless the plaintiff was able to recover an amount greater than the limitation of $500,000 per person and $1,000,000 per occurrence.

The court also stated the Charitable Immunity Act did not apply to defendants whose “act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” The plaintiff had plead actions of the defendant in almost identical language which was another issue making the issue not ripe for decision.

So Now What?

This decision is a road map on what not to do with a release in Texas.

1.       Make sure your release states that it is a release and the person signing it is giving up their legal rights.

2.      Make sure the language in the release is clear. The plaintiff is releasing you from liability for your negligence in advance of any injury. You are going to have to use the word negligence in your release.

3.      The release language cannot be hidden. It must be set out in such a way that it is identifiable as something important that the signor needs to know about.

4.      All blanks in the document need to be located in one place so it only takes a quick scan to make sure everything is completed properly.

5.       Anything that can be completed by the defendant or filled in must be completed by the defendant.

6.      Have an attorney that knows and understands your operation and the law affecting your business write your release.

Writing a release is not like cooking. When you cook you have to really screw up to make something that is not edible. (I’ve been single my entire life so my definition of edible may be different from yours……) Writing a release is a much more precise endeavor.

What do you think? Leave a comment.

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