Release used to defend third party participants in horseback case applying Missouri’s law, not the main party to the contract.
Posted: May 25, 2020 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Illinois, Missouri, Release (pre-injury contract not to sue) | Tags: additionally, Animal, argues, Assumption of risk, Cause of action, Choice of Law, conflict of laws, contacts, defense motion, deposition, Equine, Equine Liabililty Act, Exculpatory clause, Friends, Gross negligence, Horse, horseback riding, Illinois, injuries, kicked, Missouri, Motion to Dismiss, Other Participant, parties, principles, RELEASEES, ride, Risks, signing, sponsors, Summary judgment, the Animal Control Act, Third Party Beneficiary, Trail, Trial court 1 CommentIllinois resident sues Illinois’s resident for getting kicked by a horse in a riding area in Missouri. Area’s release included coverage for participants and protected horse owner from suit.
State: Illinois, Appellate Court of Illinois, Fourth District Applying Missouri law
Plaintiff: Deanna L. Perkinson
Defendant: Sarah Courson
Plaintiff Claims: Violation of the Animal Control Act and Negligence
Defendant Defenses: Release (neither party brought up the Missouri Equine Liability Act)
Holding: For the Defendant
Year: 2018
Summary
The term “other participants,” was used in a release signed to access land to ride horses to defend the owner of a horse that kicked another horse owner. The term was sufficient to include the rider in the protection the release afforded. Neither party argued the Equine Liability Act of Missouri where the incident took place.
Facts
Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff’s group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another’s homes or that they participated in any activities together other than horseback riding.
In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.
On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff’s group of friends. Plaintiff stated she had not known whether defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.
Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and believed it “was just to register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter.
Plaintiff testified that prior to signing the Cross Country forms, she understood that there was a risk of injury when participating in horseback riding events, including falling off a horse or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified she would have proceeded with the trail ride at Cross Country if she had read the form she signed, which included a warning about the risk of injury when participating in horseback riding events and statements indicating she fully assumed the risks of participation. Plaintiff acknowledged that the form she signed used the phrase “other participants.” She agreed that defendant would have been “another participant” in the activities at Cross Country.
On August 29, 2014, plaintiff, her family, and members of her group intended to take a six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever previously being around Little Bit. Further, she acknowledged consuming beer during the trail ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not remember defendant telling her when the kick occurred or that the horse was in heat at the time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while horseback riding on the day of the incident.
At some point during the trail ride, plaintiff and defendant began riding next to one another and were talking. Plaintiff did not recall who approached whom or how long they rode next to each other. As they were riding together down a hill, defendant’s horse kicked out with both of its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, underwent two surgeries.
Plaintiff testified that during the trail ride defendant should have put a red ribbon on her horse’s tail to warn others that her horse was known to kick. She asserted, however, that the presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated she returned to Cross Country for horseback riding after the August 2014 incident with defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 2016, she did plan to go to another location in Missouri for a Labor Day trail ride.
Analysis: making sense of the law based on these facts.
This is a complicated case because it was started in Illinois after the accident happened in Missouri. Consequently, the issues that support the outdoor recreation industry are woven around the other issues such as where the lawsuit should be and what law should be applied to the case.
The court was an Illinois court and the defendant, and the plaintiffs were Illinois’s residents. However, because the accident occurred in Missouri, the court applied Missouri’s law to the case.
The court first looked at Missouri’s law and the requirements to prove negligence.
To obtain relief in a negligence cause of action, “‘the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.'”
Then the assumption of the risk doctrine was reviewed as applied in Missouri.
Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk may not sue another for failing to protect him from it.”
A document showing the plaintiff assumed the risks or explicitly accepted the risks is called an express assumption of the risk document in Missouri (and most other states).
An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.” An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.” Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.”
The Missouri law concerning releases was analyzed.
Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” “[C]ontracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability.'” Missouri law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence,” and “[g]eneral language will not suffice.” “‘The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.’
In this case, the release was not signed because of a legal relationship between the parties, but was signed as part of accessing the land where the accident occurred. Meaning both parties signed the release to ride on the land. Consequently, the argument centered around whether that release was written to protect parties such as the defendant in this case. Whether the release signed by the plaintiff to ride on the land of the landowner provided protection to the owner of the horse that kicked her.
Additionally, [o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member. When an express declaration of intent is lacking, a strong presumption exists “‘that the third party is not a beneficiary and that the parties contracted to benefit only themselves.'”
As in most other states, to understand a contract you must determine the effect intended by the parties to be given to the contract. Each clause should be read in the context of the entire contract, not as individual issues. The information within the “four corners” of the contract is the only information that can be reviewed by a court in determining the meaning of a contract, unless the contract is ambiguous, then outside information can be brought into to define the ambiguous section.
A contract is ambiguous when “duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.”
The language of the release referred to “other participants.” The defendant argued that she was the intended beneficiary of this language. If the defendant was found to be the intended beneficiary, then the release would stop the claims of the plaintiff. The term other participants usually follows the name of the party wanting the release to be signed. In this case, the landowner would have their name as the party to be protected and the clause and other participants followed. Did the term have legal meaning and apply to the defendant or was the term just dicta, additional language in the agreement that had no meaning.
The plaintiff argued that she did not know what she was signing and therefore, could not have intended the release to benefit the defendant. The plaintiff also argued the phrase “other participants” was ambiguous.
However, the court disagreed and found it covered the defendant and was not a catch-all phrase. The court found the defendant was a participant within the meaning of the words and the language of the release.
The final failure of the plaintiff’s argument fell when the court brought up that in her own deposition, she characterized the defendant as another participant in the trail ride.
The next argument, is another argument that is surfacing in plaintiff’s arguments across the US. The plaintiff argued the release should not apply because it purports to relieve liability for more than simple negligence. Meaning the release was written to cover intentional torts, gross negligence and other activities of the public interest.
However, the court did not agree with that argument because the release did not refer to any additional legal theories other than negligence. The release only used the term negligence and did not sue any language that extended that term to a greater definition.
The court also quoted a Missouri Supreme Court decision that held that the plaintiff could not get a release thrown out by arguing it covered gross negligence. Missouri does not recognize gross negligence. Since it does not exist under Missouri’s law, it could not be used to void a release.
In DeCormier v. Harley-Davidson Motor Co. Group, Inc., the Missouri Supreme Court stated that it would “enforce exculpatory agreements to protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule by alleging [a defendant was] grossly negligent because Missouri’s courts do not recognize degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has raised in this case both before the trial court and on appeal.
Nor does Missouri recognize a cause of action for recklessness.
The next argument was the release was not clear because it was mixed in with another form. The top part of the form was labeled a registration form, and the bottom part was a release.
The court recognized this but found the release part of the form was labeled Release of Liability – Read Before Signing and separated by a dotted line from the top of the form. The significant language in the release was also capitalized for emphasis.
The court held with the trial court and found the release signed by the parties to ride on the property protected the defendant in this case.
So Now What?
This is the first case I have found where a release was used to protect a third party from a lawsuit. I have long argued that this should be the case. Even though the release was signed for a land owner, any litigation is going to cost many parties money. The decision does not say, however, in cases like this many times, the landowner and other participants in the ride are deposed, and as such they lose work and possibly incur legal fees for the depositions.
Having the release be part of a registration form was an issue. Eliminate the argument by the plaintiff and make it a separate form. If you need more information than what is normally required on a release collect it a different way or at the end.
What do you think? Leave a comment.
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Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692
Posted: May 14, 2020 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Illinois, Missouri, Release (pre-injury contract not to sue) | Tags: additionally, Animal, argues, Assumption of risk, Cause of action, Choice of Law, conflict of laws, contacts, defense motion, deposition, Equine, Equine Liabililty Act, Exculpatory clause, Friends, Gross negligence, Horse, horseback riding, injuries, kicked, Motion to Dismiss, parties, principles, Release, RELEASEES, ride, Risks, signing, sponsors, Summary judgment, the Animal Control Act, Trail, Trial court, Waiver Leave a commentPerkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692
Appellate Court of Illinois, Fourth District
March 12, 2018, Filed
DEANNA L. PERKINSON, Plaintiff-Appellant, v. SARAH COURSON, Defendant-Appellee.
Prior History: [***1] Appeal from Circuit Court of Jersey County. No. 15L31. Honorable Eric S. Pistorius, Judge Presiding.
Counsel: Timothy J. Chartrand, of Williamson, Webster, Falb & Glisson, of Alton, for appellant.
Amy L. Jackson and Samantha Dudzinski, of Rammelkamp Bradney, P.C., of Jacksonville, for appellee.
Judges: PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Steigmann and Turner concurred in the judgment and opinion.
[****698] [**580] PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Steigmann and Turner concurred in the judgment and opinion.
OPINION
[*P1] In August 2014, plaintiff, Deanna L. Perkinson, was kicked by a horse and injured. In December 2015, she filed a two-count complaint against the horse’s owner, defendant Sarah Courson, alleging a violation of the Illinois Animal Control Act (510 ILCS 5/1 to 35 (West 2014)) (count I) and negligence (count II). Although plaintiff and defendant are Illinois residents, the incident at issue occurred in Missouri and the trial court determined Missouri law controlled the conflict. Following that determination, the court granted defendant’s motion to dismiss count I of plaintiff’s complaint and her motion for summary judgment as to count II. Plaintiff appeals, arguing the court erred in (1) ruling on defendant’s motion to dismiss count I of the complaint because the motion was brought pursuant to the [***2] wrong statutory section, (2) finding Missouri law applied to the parties’ controversy, and (3) finding defendant was entitled to summary judgment on count II of the complaint. We affirm.
[*P2] I. BACKGROUND
[*P3] In her December 2015 complaint, plaintiff alleged that both she and defendant were Illinois residents. On August 29, 2014, they were horseback riding alongside one another on a public trail when plaintiff was kicked by the horse defendant was riding, which defendant owned. Plaintiff maintained she sustained permanent and disfiguring injuries to her right leg as a result of being kicked. In connection with count I of her complaint, alleging a violation of the Animal Control Act, plaintiff also asserted that at the time and place of her injury, she did not provoke defendant’s horse, had been conducting herself peaceably, and was in a location where she had a legal right to be. Relative to count II, alleging negligence, plaintiff asserted defendant owed her a duty of care but breached that duty by (1) failing to warn plaintiff of the horse’s violent propensity to kick others, (2) failing to properly train the [**581] [****699] horse, (3) riding too close to plaintiff and plaintiff’s horse when knowing that [***3] her horse had a violent propensity to kick others, and (4) riding her horse contrary to industry and practice norms. Plaintiff further alleged that as a direct and proximate result of defendant’s negligence, she was kicked by defendant’s horse without provocation and injured.
[*P4] In January 2016, defendant filed a motion to dismiss plaintiff’s complaint. She first sought dismissal of count I pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). Specifically, defendant argued that the incident at issue occurred while the parties were on a horseback riding trip in Eminence, Missouri, and, as a result, Missouri law governed “the pending litigation.” She further maintained that because count I of plaintiff’s complaint was based entirely on Illinois statutory law, that count necessarily failed to state a claim upon which any relief could be granted and had to be dismissed. Defendant further sought dismissal of both count I and count II under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2014)). She argued plaintiff signed a “‘Release of Liability'” (Release) prior to horseback riding, which, under Missouri law, barred her claims.
[*P5] In February 2016, plaintiff responded to defendant’s motion, arguing Illinois [***4] law applied to both counts of her complaint. Further, she argued the Release referenced by defendant should be disregarded because defendant failed to attach a sworn or certified copy of the Release to her motion to dismiss. Plaintiff alternatively argued the Release was against Illinois public policy, vague, ambiguous, overbroad, and could not be relied upon by defendant who was “a non-party outside of the Release.”
[*P6] In March 2016, the trial court conducted a hearing on defendant’s motion to dismiss. At the hearing, defendant withdrew the portion of her motion that sought dismissal pursuant to section 2-619 and proceeded only with the portion of her motion that sought dismissal of count I under section 2-615. Ultimately, the court granted defendant’s motion to dismiss count I, holding as follows:
“[I]n conflict of law cases the courts must determine which forum has the most significant contacts with the litigation. Further, there is a legal presumption that the law of the state where the injury occurred applies in determining the rights and liabilities of the parties unless Illinois has a more significant relation to the conflict. This court finds that *** plaintiff has failed to establish that Illinois has [***5] a more significant relationship to the conflict. As such, Count I, which is based on the [Illinois] Animal Control Act, is hereby dismissed.”
[*P7] In April 2016, plaintiff filed a motion to reconsider the trial court’s ruling as to count I of her complaint. She argued the court erred in its application of existing law as the case authority cited by both parties heavily favored application of Illinois law rather than Missouri law. Additionally, plaintiff maintained the court erred by placing the burden on her to establish that Illinois had a more significant relationship to the matter, rather than on defendant, the moving party.
[*P8] In June 2016, a hearing was conducted on plaintiff’s motion to reconsider. In its written order, the trial court stated it had considered both plaintiff’s motion and defendant’s response and “noted, for the first time,” that the question of which state’s law to apply involved factual determinations regarding the nature of the parties’ relationship, the planning of their trip to Missouri, and the training of defendant’s horse while in Illinois. The court [**582] [****700] pointed out that no affidavits or deposition testimony had been presented by the parties and elected to “keep plaintiff’s [***6] Motion to Reconsider under advisement until the[ ] facts or issues [could] be fleshed out during the discovery process.”
[*P9] In September 2016, plaintiff filed a supplemental brief to her motion to reconsider, and defendant filed a supplemental response. Plaintiff attached the depositions of both parties to her filing.
[*P10] During her deposition, plaintiff testified she resided in Dow, Illinois, both at the time of the incident at issue and at the time of her deposition. She had known defendant since 2003. They met through mutual friends and were brought together through the activity of horseback riding. Plaintiff and her husband had also purchased defendant’s house.
[*P11] Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff’s group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback [***7] riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another’s homes or that they participated in any activities together other than horseback riding.
[*P12] On examination by her own counsel, plaintiff testified that prior to August 2014, she considered defendant her friend. They had ridden horses together in Illinois and “hung out” at the home of a mutual friend. Also, they had each other’s telephone numbers and were Facebook friends.
[*P13] In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.
[*P14] On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff’s group of friends. Plaintiff stated she had not known whether [***8] defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.
[*P15] Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and believed it “was just to register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter.
[*P16] Plaintiff testified that prior to signing the Cross Country forms, she understood that there was a risk of injury when participating in horseback riding events, including falling off a horse or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified she would have proceeded with the trail ride at Cross Country if she had read the form she signed, which included a [**583] [****701] warning about the risk of injury when participating [***9] in horseback riding events and statements indicating she fully assumed the risks of participation. Plaintiff acknowledged that the form she signed used the phrase “other participants.” She agreed that defendant would have been “another participant” in the activities at Cross Country.
[*P17] On August 29, 2014, plaintiff, her family, and members of her group intended to take a six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever previously being around Little Bit. Further, she acknowledged consuming beer during the trail ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not remember defendant telling her when the kick occurred or that the horse was in heat at the time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while horseback riding on the day of the incident.
[*P18] At some point during the trail [***10] ride, plaintiff and defendant began riding next to one another and were talking. Plaintiff did not recall who approached whom or how long they rode next to each other. As they were riding together down a hill, defendant’s horse kicked out with both of its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, underwent two surgeries.
[*P19] Plaintiff testified that during the trail ride defendant should have put a red ribbon on her horse’s tail to warn others that her horse was known to kick. She asserted, however, that the presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated she returned to Cross Country for horseback riding after the August 2014 incident with defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 2016, she did plan to go to another location in Missouri for a Labor Day trail ride.
[*P20] As stated, the record also contains defendant’s deposition. Defendant testified she resided in [***11] Farina, Illinois, with her husband. She met plaintiff in 2003 through her former sister-in-law who was friends with plaintiff. Also, in 2013, plaintiff purchased defendant’s house in Dow, Illinois. Defendant testified she advertised the sale of her house on Facebook and plaintiff “friended [her] on Facebook” and contacted her by telephone about the house. Defendant noted her phone number was in her advertisement. She was not aware of plaintiff having her phone number prior to the time she advertised the sale of her house. Defendant considered plaintiff to be an acquaintance rather than a friend, noting they only socialized through mutual friends and always went horseback riding in a group setting. She estimated that she went horseback riding with plaintiff twice a year since 2006 but did not recall whether all of those occasions were in Illinois.
[*P21] Defendant testified she grew up around horses and regularly went horseback riding. Since 2003, she owned 11 different horses. Defendant stated someone else would train her horses to ride and then she “worked the tweaks out.” Specifically, defendant stated she trained her horses, including Little Bit, to “neck rein,” [**584] [****702] not to ride too close to [***12] other horses, and in “ground manners.”
[*P22] In 2012, defendant purchased Little Bit from one of the members of her horseback riding group of friends. She kept Little Bit at her farm in Farina, Illinois. In 2013, Little Bit was trained for 30 days in Kampsville, Illinois, by an individual named Samuel Kaufman. Thereafter, defendant took over. Defendant testified her training with Little Bit included going on several trail rides with other horses. She estimated Little Bit went on six trail rides before the Cross Country trail ride in August 2014. Defendant stated that, prior to August 2014, Little Bit kicked at another horse in a pasture while she was in heat. During that incident, Little Bit made contact with defendant’s husband who “was in the way.” Defendant denied that any other kicking incidents occurred prior to August 2014.
[*P23] Defendant testified she had been to Cross Country eight times prior to August 2014. She always went to Cross Country with a group. Defendant recalled seeing plaintiff at Cross Country prior to 2014 but did not recall if they rode horses together. In August 2014, defendant was at Cross Country with her husband, mother, and father. During the August 29, 2014, trail [***13] ride, defendant rode Little Bit, who had not previously been on a trail ride at Cross Country.
[*P24] Defendant acknowledged drinking alcohol on the trail ride but stated she did not know if she was intoxicated. She estimated she had less than six beers, the amount she typically packed in her cooler. Defendant denied noticing anything peculiar about Little Bit during the trail ride. However, she asserted she told all of the other horseback riders that she would stay toward the back of the group because Little Bit was young, she did not know whether the horse would kick, and defendant did not totally trust the horse. Defendant testified she trusted Little Bit enough to ride her with other people but “didn’t trust that she maybe wouldn’t kick.”
[*P25] Defendant described the incident involving plaintiff, stating they were coming down a hill side by side when Little Bit “trotted up ahead.” She then heard plaintiff yell out and observed plaintiff reaching for her leg. Defendant estimated that she and plaintiff had been a little more than arm’s distance apart and were having a conversation before the incident. She stated she did not know why Little Bit kicked. In the fall of 2014, defendant sold Little [***14] Bit. She testified she was not comfortable with the horse, noting an occasion when Little Bit bucked her off after being “spooked” by cattle.
[*P26] In October 2016, the trial court entered a written order finding no reason to reconsider its previous ruling and denying plaintiff’s motion to reconsider. In so holding, the court noted it reviewed its prior decision and the parties’ additional arguments. It stated the additional facts presented to it only further supported its decision to grant defendant’s motion to dismiss.
[*P27] In February 2017, defendant filed a motion for summary judgment as to count II of plaintiff’s complaint, alleging negligence, as well as a memorandum of law in support of her motion. She alleged that based on the deposition testimony of plaintiff and defendant, no question of material fact existed and she was entitled to judgment in her favor as a matter of law. Defendant maintained plaintiff was unable to establish that defendant owed her a duty, arguing that plaintiff both implicitly and explicitly assumed the risks associated with horseback riding. Also, she argued that plaintiff’s “testimony undermine[d] any and all proffered allegations of breach of duty.”
[*P28] [**585] [****703] Defendant [***15] attached the parties’ depositions to her filing, as well as copies of the Cross Country documents plaintiff acknowledged signing. The documents included forms titled “RELEASE OF LIABILITY—READ BEFORE SIGINING [sic],” which provided as follows:
“In consideration of being allowed to participate in any way, including but not limited to trail riding, competing, officiating, working for, recreating in any fashion while visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and activities, I *** the undersigned, acknowledge, appreciate, and agree that;
1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce the risk, the risk of serious injury does exist; and,
2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation; and,
3. I willingly agree to comply with the stated and customary terms of participation. If, however, I observe any unusual significant hazard during my presence [***16] or participation, I will remove myself from participation and bring such to the attention of the Company immediately; and,
4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.
5. Releasor expressly agrees that this release, waiver, and indemnity agreement is intended to be as broad and inclusive as permitted by the laws of the State of Missouri and that if any portion thereof is held invalid, it is agreed that the valid portion shall, not withstanding, continue in full legal force and effect.”
[*P29] In March 2017, plaintiff filed a response to defendant’s motion, and in April 2017 defendant filed a reply. Both parties relied on Missouri [***17] substantive law when addressing defendant’s motion for summary judgment. In April 2017, the trial court also conducted a hearing in the matter and entered a written order granting defendant’s motion. Although the court’s written order did not specify the basis for its ruling, the court’s oral comments at the hearing reflect that it relied upon the Release plaintiff signed at Cross Country. Specifically, it stated as follows:
“Based upon the Release and without going to what is otherwise, I think a factual question, I think the Release in and of itself is sufficient to provide a basis for [defendant’s] Motion for Summary Judgment. It identifies itself as a release. It specifically tells the person who’s signing it to sign it and [plaintiff] sign[ed] not only for herself, but for her underage children. It says ‘please read this before you sign it[.’] It specifically addresses other participants. That’s as strong of language as you can get. So based *** on that, and that alone, the [**586] [****704] court’s [going to] grant the Motion for Summary Judgment.”
[*P31] II. ANALYSIS
[*P32] A. Statutory Designation for Motion to Dismiss
[*P33] On appeal, plaintiff first argues the trial court erred in granting [***18] defendant’s motion to dismiss count I of her complaint, alleging a violation of the Animal Control Act, because it was brought under the wrong section of the Code. She notes defendant sought dismissal of count I pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)) but argues that, because defendant’s motion “raised an affirmative, factual defense,” it should have been brought pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)).
[*P34]
“A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face.” Bueker v. Madison County, 2016 IL 120024, ¶ 7, 410 Ill. Dec. 883, 72 N.E.3d 269. “The only matters to be considered in ruling on such a motion are the allegations of the pleadings themselves.” Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485, 639 N.E.2d 1282, 1289, 203 Ill. Dec. 463 (1994). Conversely, “[a] motion to dismiss under section 2-619 [citation] admits the legal sufficiency of the plaintiff’s claim, but asserts certain defects or defenses outside the pleading that defeat the claim.” In re Scarlett Z.-D., 2015 IL 117904, ¶ 20, 390 Ill. Dec. 123, 28 N.E.3d 776. Where grounds for dismissal do not appear on the face of the complaint, the section 2-619 motion must be supported by affidavit. 735 ILCS 5/2-619(a) (West 2014).
[*P35] As noted, defendant sought dismissal of count I of plaintiff’s complaint, arguing Missouri law applied to the parties’ conflict and, as a result, plaintiff’s claim asserting liability based solely on an Illinois statute—the Animal Control Act—could [***19] not stand. Defendant brought her motion under section 2-615 of the Code, and as stated, plaintiff argues defendant should have designated section 2-619.
[*P36] Here, it appears defendant labeled her motion to dismiss count I with the wrong statutory section. Section 2-619(a)(9) of the Code provides for dismissal where “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2014)). “[A]ffirmative matter” has been held to include “the basic issue as to which state’s law is to apply to the action.” Ingersoll v. Klein, 106 Ill. App. 2d 330, 336, 245 N.E.2d 288, 291 (1969), aff’d, 46 Ill. 2d 42, 262 N.E.2d 593 (1970); see also Illinois Graphics, 159 Ill. 2d at 487 (citing Ingersoll, 46 Ill. 2d at 42, for the proposition that a choice-of-law defense had “been considered ‘affirmative matter’ so as to negate completely the asserted claim”).
[*P37] Additionally, our supreme court has acknowledged that the conflict-of-law methodology “may raise factual issues.” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 154, 879 N.E.2d 893, 898, 316 Ill. Dec. 505 (2007). Such factual issues are properly considered and addressed in the context of a section 2-619 motion to dismiss, where a trial court may consider pleadings, depositions, and affidavits when making its ruling (Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 1002, 209 Ill. Dec. 27 (1995)), rather than in the context of section 2-615 motion, where only the pleadings may be considered (Illinois Graphics, 159 Ill. 2d at 485).
[*P38] Nevertheless, even if defendant improperly labeled her motion to dismiss count I, no reversible error [***20] occurred. We note plaintiff failed to object to the [**587] [****705] statutory designation in defendant’s motion to dismiss. Thus, she has forfeited her challenge to that designation on appeal. American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 280, 735 N.E.2d 551, 554, 248 Ill. Dec. 900 (2000). Moreover, setting plaintiff’s forfeiture aside, we note that a defendant’s error in labeling a motion to dismiss is not fatal where the nonmoving party has suffered no prejudice. Wallace v. Smyth, 203 Ill. 2d 441, 447, 786 N.E.2d 980, 984, 272 Ill. Dec. 146 (2002). In this instance, plaintiff acknowledges that the trial court allowed the choice-of-law issue to be “fleshed out” through the discovery process. Further, the record shows the issue was given full and thorough consideration by the trial court. Thus, plaintiff had a sufficient opportunity to be heard, and we find no reversible error.
[*P39] B. Choice-of-Law Determination
[*P40] Plaintiff next argues the trial court erred in finding Missouri law applied to the parties’ conflict. She contends that a choice-of-law analysis and the facts applicable to that analysis support the conclusion that Illinois has a more significant relationship to her cause of action.
[*P41] Initially, we note that a de novo standard of review applies to this issue. Such a standard is applicable on review of a dismissal under either section 2-615 or 2-619 of the Code. Patrick Eng’g, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31, 976 N.E.2d 318, 364 Ill. Dec. 40. Additionally, we apply a de [***21] novo standard when reviewing a trial court’s choice-of-law determination. Townsend, 227 Ill. 2d at 154.
[*P42]
“A choice-of-law determination is required only when a difference in law will make a difference in the outcome.” Id. at 155. Thus, “a choice-of-law analysis begins by isolating the issue and defining the conflict.” Id. Here, the parties agree that conflicts exist between Missouri and Illinois law. Notably, they identify Missouri’s lack of a statute that is equivalent to the Illinois Animal Control Act. If Illinois law applies, claimant can maintain the cause of action alleged in count I of her complaint, which is based on that Illinois statute; however, if Missouri law applies, count I of her complaint must be dismissed as it would state no cause of action upon which relief could be granted under Missouri law. Thus, we agree that a conflict exists that will result in a difference in outcome.
[*P43] Next, when making a choice-of-law determination, “the forum court applies the choice-of-law rules of its own state.” Id. Illinois has adopted the choice-of-law analysis contained in the Restatement (Second) of Conflict of Laws (1971) (Second Restatement).Townsend, 227 Ill. 2d . at 163-64. Under the Second Restatement, a presumption exists in favor of applying the [***22] law of the state where the injury occurred. Id. at 163. The presumption “may be overcome only by showing a more or greater significant relationship to another state.” (Emphases in original.) Id. Specifically, section 146 of the Restatement provides as follows:
“In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in [the Second Restatement] to the occurrence and the parties, in which event the local law of the other state will be applied.” Restatement (Second) of Conflict of Laws § 146 (1971).
[*P44]
Once a court chooses the presumptively applicable law, it “tests” its [**588] [****706] choice against various “principles” and “contacts” as set forth in sections 6 and 145 of the Second Restatement. Townsend, 227 Ill. 2d at 164. Section 6(2) sets forth the following relevant factors for consideration:
“(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field [***23] of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.”
Restatement (Second) of Conflict of Laws § 6(2) (1971).
[*P45] Additionally, section 145(2) sets forth the following “[c]ontacts to be taken into account in applying the principles of [section] 6“:
“(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2) (1971).
The contacts set forth in section 145(2) “are to be evaluated according to their relative importance with respect to the particular issue.” Id.
[*P46] Practically, it makes no difference whether a court first considers the section 145(2) contacts or the section 6(2) general principles. Townsend, 227 Ill. 2d at 168. “In either case[,] the Second Restatement’s goal is the same—to ensure that a court is not merely ‘counting contacts,’ and that each contact is meaningful in light of the policies sought to be vindicated by the conflicting laws.” Id.
[*P47] Here, plaintiff was kicked by defendant’s horse while on a trail ride in Missouri. Thus, Missouri is “the state where the injury occurred,” and a presumption exists in favor [***24] of applying Missouri law unless, as plaintiff argues, Illinois has a more significant relationship to the occurrence and the parties. In testing this presumption, we first consider relevant “contacts” as set forth in section 145(2) of the Restatement.
[*P48] 1. Section 145 Contacts
[*P49] The first contact for consideration is the place where the injury occurred. Restatement (Second) of Conflict of Laws § 145(2)(a) (1971). As discussed, plaintiff was kicked by defendant’s horse in Missouri, and thus, that is where her injury occurred. Plaintiff maintains this factor is of minimal importance because the location of her injury was merely fortuitous in that the incident could just as easily have occurred in Illinois. To support her argument, plaintiff cites cases with fact scenarios that involve interstate travelers and motor vehicle accidents, which courts have determined could just as easily have occurred in another state. Murphy v. Mancari’s Chrysler Plymouth, Inc., 408 Ill. App. 3d 722, 727-28, 948 N.E.2d 233, 238, 350 Ill. Dec. 164 (2011); Miller v. Hayes, 233 Ill. App. 3d 847, 852, 600 N.E.2d 34, 38, 175 Ill. Dec. 411 (1992); Schulze v. Illinois Highway Transportation Co., 97 Ill. App. 3d 508, 510-11, 423 N.E.2d 278, 280, 53 Ill. Dec. 86 (1981).
[*P50] [****707] [**589] Specifically, in Murphy, 408 Ill. App. 3d at 723, the plaintiffs were Illinois residents who brought suit against an Illinois automobile dealer that sold them a vehicle after one of the plaintiffs was injured in a motor vehicle accident in Michigan. The trial court determined Michigan law applied to the liability and damages issues in the case, and the plaintiffs appealed. Id. at 724.
[*P51] On review, the First District [***25] noted that, in the context of a choice-of-law analysis, “situations may exist where the place of injury is merely fortuitous and, therefore, not an important contact.” Id. at 727. In the case before it, the court found that the injured plaintiff’s presence in Michigan was not fortuitous because “[h]e was purposefully and voluntarily in Michigan, driving to his weekend home with the intention of staying there for several days.” Id. at 727. However, it also determined that a purposeful presence in Michigan did not mean that the accident “could not have happened in Michigan fortuitously.” Id. It pointed out that the cause of the accident had not been determined and “[t]he same type of accident and the same type of injuries could have just as easily happened in Illinois.” Id. at 727-28. Thus, the court concluded the place of injury was not an important consideration in the context of the case before it. Id. at 728.
[*P52] Defendant argues Murphy is distinguishable from the present case, and we agree. Notably, this case does not involve a motor vehicle accident that happened by chance in one state versus another. Instead, plaintiff’s injury occurred at the planned destination of both parties. The specific location, Cross Country, focused [***26] on horseback riding activities in which both parties planned to engage. Additionally, both plaintiff and defendant had previously visited Cross Country on multiple occasions.
[*P53] We note comment e of section 145 provides as follows:
“In the case of personal injuries or of injuries to tangible things, the place where the injury occurred is a contact that, as to most issues, plays an important role in the selection of the state of the applicable law [citation]. *** This is so for the reason among others that persons who cause injury in a state should not ordinarily escape liabilities imposed by the local law of that state on account of the injury. ***
Situations do arise, however, where the place of injury will not play an important role in the selection of the state of the applicable law. This will be so, for example, when the place of injury can be said to be fortuitous or when for other reasons it bears little relation to the occurrence and the parties with respect to the particular issue ***.” (Emphasis added.) Restatement (Second) of Conflict of Laws § 145 cmt. e (1971).
Under the facts of this case, we cannot say that the place of injury bears little relation to the occurrence or the parties. This is particularly true in light of the underlying issues presented [***27] in plaintiff’s complaint, which almost exclusively involve the parties’ behavior and conduct while horseback riding at Cross Country in Missouri. Therefore, we find this contact weighs in favor of applying Missouri law.
[*P54] The next contact for consideration is the place where the conduct causing the plaintiff’s injury occurred. Restatement (Second) of Conflict of Laws § 145(2)(b) (1971). An analysis of injury-causing conduct “includes all conduct from any source contributing to the injury,” including a defendant’s affirmative defenses [**590] [****708] or allegations of contributory negligence. Townsend, 227 Ill. 2d at 169.
[*P55] Here, plaintiff acknowledges that, relative to count I, this factor favors application of Missouri law because “the place where the conduct causing the injury occurred would be the place where the animal caused injury without provocation.” She asserts, however, that she alleged injury-causing conduct that occurred in both Illinois and Missouri in connection with count II and thus, this factor must be “deemed a wash.” We disagree.
[*P56] In count II, plaintiff asserted defendant was negligent for failing to warn plaintiff of the horse’s violent propensity to kick, failing to properly train her horse, riding the horse too close to plaintiff, and failing to adhere to industry [***28] and practice norms while riding her horse. All but one of these alleged actions or inactions by defendant occurred exclusively in Missouri. Additionally, defendant has argued that plaintiff expressly assumed the risks associated with horseback riding at Cross Country and points to the Release plaintiff signed in Missouri. Given that the vast majority of relevant conduct occurred in Missouri, we find this factor weighs in favor of applying Missouri law to the parties’ conflict.
[*P57] The third contact for consideration is “the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws § 145(2)(c) (1971). Here, both parties are Illinois residents and neither disputes that this factor weighs in favor of applying Illinois law.
[*P58] The final contact for consideration is “the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2)(d) (1971). In this instance, the parties’ relationship primarily arose from having a group of mutual friends in Illinois and engaging in horseback riding activities within that group. Plaintiff and defendant were riding horses together in Missouri at the time of the incident at issue but had previously ridden horses together in Illinois. [***29] Ultimately, we find this contact favors applying Illinois law, as most of the parties’ interactions occurred within this state.
[*P59] Here, the section 145(2) contacts are evenly split, with two favoring application of Missouri law and two favoring Illinois law. However, as noted, the 145(2) contacts “are to be evaluated according to their relative importance with respect to the particular issue.” Restatement (Second) of Conflict of Laws § 145(2) (1971). In this case, the fact that the parties interacted with one another more frequently in Illinois has little to do with the issues presented by either count I or count II of plaintiff’s complaint. Thus, we find the fourth factor set forth in section 145(2) is only minimally important to the underlying proceedings. As a result, the section 145(2) contacts, when considered alone, support rather than rebut the presumption in favor of applying Missouri law. This does not end our analysis, however, and we must also consider the principles set forth in section 6 of the Second Restatement.
[*P60] 2. Section 6 Principles
[*P61] As noted, section 6(2) of the Second Restatement sets forth the following principles for consideration when conducting a choice-of-law analysis:
“(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant [***30] policies of other interested states and the relative interests of those states in the determination of the particular issue,
[****709] [**591] (d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.”
Restatement (Second) of Conflict of Laws § 6(2) (1971).
In this case, a detailed analysis of all seven section 6 principles is unnecessary because the principles set forth in sections 6(2)(a), 6(2)(d), and 6(2)(f) are only minimally implicated in a personal injury action. Townsend, 227 Ill. 2d at 169-70 (citing Restatement (Second) of Conflict of Laws § 145 cmt. b, at 415-16 (1971)). Therefore, we confine our analysis to the remaining section 6 principles. Id. at 170.
[*P62] As stated, the parties agree that Illinois law conflicts with Missouri law based upon the existence of the Animal Control Act in Illinois and the lack of an equivalent Missouri statute. Initially, we consider this conflict in light of the relevant policies of Illinois (section 6(2)(b)), the relevant policies of Missouri and the relative interest of Missouri in the determination of the issue (section 6(2)(c)), and the basic policies underlying the particular field of law (section 6(2)(e)).
[*P63] Under the Animal Control Act, “[i]f a dog or other animal, without provocation, attacks, attempts to attack, [***31] or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.” 510 ILCS 5/16 (West 2014). Our supreme court has described the history behind the Animal Control Act and interpreted its provisions as follows:
“The original version of this statute was passed in 1949 and applied only to dogs. [Citation.] The apparent purpose of the legislation was modest: to reduce the burden on dog-bite plaintiffs by eliminating the ‘one-bite rule’—the common law requirement that a plaintiff must plead and prove that a dog owner either knew or was negligent not to know that his dog had a propensity to injure people. [Citation.]
Enacting the Animal Control Act in 1973, the legislature amended this ‘dog-bite statute’ to cover ‘other animals.’ ***
*** [W]e believe that the legislature intended only to provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal [***32] poses to them. This interpretation is consistent with the emphasis the statute places on lack of provocation and plaintiff’s peaceable conduct in a place in which he is legally entitled to be.” Harris v. Walker, 119 Ill. 2d 542, 546-47, 519 N.E.2d 917, 918-19, 116 Ill. Dec. 702 (1988).
In Harris, the supreme court held the Animal Control Act was inapplicable to circumstances “where a person rents a horse and understands and expressly accepts the risks of using the horse.” Id. at 547-48; Johnson v. Johnson, 386 Ill. App. 3d 522, 535, 898 N.E.2d 145, 159, 325 Ill. Dec. 412 (2008) (“[T]he common law defense of assumption of the risk has been recognized as a valid affirmative defense to an action brought pursuant to the Animal Control Act.”).
[*P64] As indicated by the parties, Missouri does not have a comparable statute. See Mo. Ann. Stat. § 273.036 (West [**592] [****710] 2014) (providing for strict liability in the event of dog bites but not applying to other animals). However, it has enacted the Equine Liability Act, for the purpose of codifying “the common law assumption of risk principle in the context of a specific recreational activity.” Frank v. Mathews, 136 S.W.3d 196, 202 (Mo. Ct. App. 2004). That Act limits liability for injuries resulting from the inherent risks associated with equine activities, providing as follows:
“[A]n equine activity sponsor, an equine professional, *** any employee thereof, or any other person or corporation shall not be liable for an injury to or [***33] the death of a participant resulting from the inherent risks of equine *** activities and, *** no participant or a participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, *** any employee thereof, or any other person from injury, loss, damage or death of the participant resulting from any of the inherent risks of equine or livestock activities.” (Emphases added.) Mo. Ann. Stat. § 537.325(2) (West 2014).
Under the Equine Liability Act, an “equine activity” includes “[r]ides *** sponsored by an equine activity sponsor.” Id. § 537.325(3)(e). Further, an “equine activity sponsor” includes a group or corporation that “sponsors, organizes[,] or provides the facilities for, an equine activity.” Id. § 537.325(4). The Equine Liability Act does not relieve covered individuals “from any duty that common law negligence principles impose upon them.” Frank, 136 S.W.3d at 203.
[*P65] Finally, we note that, although not significantly addressed by either party, Illinois has also adopted an Equine Activity Liability Act (Illinois Equine Act) (745 ILCS 47/1 et seq. (West 2014)). The legislature has set forth the purpose of the Illinois Equine Act as follows:
“The General Assembly recognizes that persons who participate [***34] in equine activities may incur injuries as a result of the risks involved in those activities. The General Assembly also finds that the State and its citizens derive numerous economic and personal benefits from equine activities. Therefore, it is the intent of the General Assembly to encourage equine activities by delineating the responsibilities of those involved in equine activities.” 745 ILCS 47/5 (West 2014).
The Fifth District of this court has noted that equine activity liability acts “have been enacted in more than 40 states since the mid-1980s” and are intended “to promote equine activities and the horse industry in general by limiting liability for some horse-related activities.” Smith v. Lane, 358 Ill. App. 3d 1126, 1128-29, 832 N.E.2d 947, 950, 295 Ill. Dec. 497 (2005).
[*P66] Here, plaintiff argues the policy behind the Animal Control Act “is more significant within the context of injuries by animals than the purpose of the Missouri Equine Liability Act.” We cannot agree. Clearly, Illinois has a policy, by way of the Animal Control Act, of protecting individuals who come into contact with an animal and are unable to appreciate or avoid the risks posed by the animal. However, both Missouri and Illinois have acknowledged that special circumstances exist with respect to horses and equine-related [***35] activities. Like Missouri law, Illinois law also contemplates that certain inherent risks are associated with equine activities like the sort of activity engaged in by the parties in this case. Both states have a policy of promoting equine activities and limiting liability associated with those activities. Both states also take into account assumption of risk principles with respect to horse-related injuries, even in the context of the Animal Control Act. Given these circumstances, we fail to see how [**593] [****711] Illinois policies are any “more significant” than those behind relevant Missouri law. Rather, both states appear to have similar policies and interests relative to injuries caused by horse-related activities.
[*P67] In addressing the relevant policies and interests of both Illinois and Missouri, plaintiff also argues that Illinois has a significant interest in providing tort remedies to its injured citizens. She cites Esser v. McIntyre, 169 Ill. 2d 292, 300, 661 N.E.2d 1138, 1142, 214 Ill. Dec. 693 (1996), wherein the supreme court held that “[h]aving provided a legal means for a plaintiff to recover for injuries caused by a defendant’s culpable conduct, Illinois has a strong interest in providing that remedy in disputes between Illinois residents.” In so holding, the court noted [***36] that under the law of the place of injury in that case—Mexico—Illinois’s interest would be circumvented because the plaintiff had no remedy against the defendant. Id. In fact, the parties had agreed that the plaintiff had no cause of action against the defendant under Mexican law. Id. at 297. The same cannot be said in this case, as plaintiff has a potential remedy under Missouri law in the form of a negligence cause of action. Further, we note that Missouri has a competing interest in having its laws apply to equine-related activities that occur within its borders.
[*P68] Ultimately, we disagree with plaintiff that the policies and interests relevant to this matter weigh in favor of applying Illinois law. Therefore, plaintiff does not overcome the presumption in favor of applying Missouri law.
[*P69] On review, plaintiff also addresses the principle relating to the “ease in the determination and application of the law to be applied.” Restatement (Second) of Conflict of Laws § 6(2)(g) (1971). She maintains that because Illinois law is more advantageous to her claim, this principle weighs in favor of applying Illinois law. However, we agree with defendant that the purpose of section 6(2)(g) is to consider whether the competing laws are “simple and easy to apply” rather [***37] than which law is most beneficial to plaintiff. See Restatement (Second) of Conflict of Laws § 6 cmt. j (1971).
[*P70] Relative to this principle, we note that the Illinois Equine Act may be applied to preempt the Animal Control Act in certain situations. See Carl v. Resnick, 306 Ill. App. 3d 453, 458-59, 714 N.E.2d 1, 5, 239 Ill. Dec. 443 (1999) (stating the Illinois Equine Act would bar actions in which the plaintiff was engaged in an “‘equine activity'” that would have previously been permitted under the Animal Control Act); Smith, 358 Ill. App. 3d at 1134 (stating that “had the [Illinois] Equine Act applied to the facts of the case, preemption would have barred an action for the same alleged injuries under the Animal Control Act”). However, the Illinois Equine Act has also been found to be “unclear as to whether it was meant to limit the liability of persons other than equine activity sponsors and equine professionals,” i.e., persons like defendant in this case. Kush v. Wentworth, 339 Ill. App. 3d 157, 165, 790 N.E.2d 912, 918, 274 Ill. Dec. 139 (2003). In Kush, the Second District of this court criticized the Illinois Equine Act for containing inconsistencies and “obvious drafting error,” as well as provisions that could lead to absurd results. Id. at 162-63. Given the lack of clarity of this state’s equine activity liability act, we must find that consideration of whether the competing laws are “simple and easy to apply” also weighs in favor of applying [***38] Missouri law.
[*P71] As discussed, a presumption exists in this case in favor of applying the Missouri law to the parties’ conflict. We find [**594] [****712] nothing in either the parties’ arguments or our review of the Second Restatement’s relevant contacts and principles for consideration that overrides that presumption. Thus, we find no error in the trial court’s finding that Missouri law applies to the underlying controversy.
[*P72] In so holding, we note that plaintiff suggests it is unclear from the underlying proceedings whether the trial court’s choice-of-law ruling was as to both counts of her complaint. We disagree. The court’s order referred generally to “the litigation” or “the conflict” when holding Missouri law was applicable, and nothing in its orders indicates that its ruling was limited to only count I. Further, as plaintiff acknowledges, both parties proceeded as if Missouri law applied to count II by citing substantive law from that state in connection with filings related to defendant’s motion for summary judgment. Therefore, we find plaintiff’s assertion that the record is somehow unclear is without merit.
[*P73] C. Motion for Summary Judgment
[*P74] On appeal, plaintiff next argues the trial court erred [***39] in granting defendant’s motion for summary judgment as to count II of her complaint. “Summary judgment is properly granted when the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 34, 413 Ill. Dec. 34, 77 N.E.3d 639. “If the plaintiff fails to establish any element of the cause of action, summary judgment for the defendant is proper.” Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9, 320 Ill. Dec. 784 (2008). The trial court’s summary judgment ruling is subject to de novo review. Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 48, 412 Ill. Dec. 882, 77 N.E.3d 50.
[*P75]
To obtain relief in a negligence cause of action, “‘the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.'” Peters v. Wady Industries, Inc., 489 S.W.3d 784, 793 (Mo. 2016) (quoting Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo. 1993)). In this case, both before the trial court and on appeal, defendant has argued that plaintiff cannot establish that defendant owed her a duty based on the Release plaintiff signed at Cross Country. The trial court’s oral ruling reflects that it agreed with this argument and granted summary judgment in defendant’s favor. For the reasons that follow, we [***40] also agree that plaintiff signed a valid and enforceable release of liability and expressly assumed the risks associated with the underlying horseback riding activities.
[*P76]
Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk[ ] *** may not sue another for failing to protect him from it.” Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. 2014). An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.” Id. An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.” Id. Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.” Id. at 193.
[*P77]
“Although exculpatory clauses in contracts releasing an individual [**595] [****713] from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “[C]ontracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party [***41] claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability.'” Id. (quoting Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. Ct. App. 1995)). Missouri law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence,” and “[g]eneral language will not suffice.” Id. at 337. “‘The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.'” Holmes v. Multimedia KSDK, Inc., 395 S.W.3d 557, 560-61 (Mo. Ct. App. 2013) (quoting Alack, 923 S.W.2d at 337-38).
[*P78] Additionally, “[o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” Verni v. Cleveland Chiropractic College, 212 S.W.3d 150, 153 (Mo. 2007). To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member. Id. When an express declaration of intent is lacking, a strong presumption exists “‘that the third party is not a beneficiary and that the parties contracted to benefit only themselves.'” Id. (quoting Nitro Distributing, Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. 2006)).
[*P79]
In Missouri, the [***42] primary rule of contract interpretation is to determine and give effect to the intent of the parties. State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 44 (Mo. 2017). Intent is determined by considering the plain and ordinary meaning of the contract language. Id. Each clause in a contract should be read in the context of the contract as a whole, and any interpretation that would render a provision meaningless should be avoided. Id. Additionally, the parties’ intentions should be “gleaned from the four corners of the contract” unless the contract is ambiguous, in which case a court may resort to considering extrinsic evidence. Kansas City N.O. Nelson Co. v. Mid-Western. Construction Co. of Missouri, Inc., 782 S.W.2d 672, 677 (Mo. App. 1989).
[*P80] Additionally, whether a contract is ambiguous presents a question of law. Alack, 923 S.W.2d at 334. “‘An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.'” Id. at 337 (quoting Rodriguez v. General Accident Insurance Co. of America, 808 S.W.2d 379, 382 (Mo. 1991)).
[*P81] Here, plaintiff acknowledged signing the Release at issue upon her arrival at Cross Country. In fact, she signed three such Releases—one for herself and one for each of the two minors who accompanied her. The operative language of the Release is as follows:
“4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY [***43] TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO [**596] [****714] ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.” (Emphasis added.)
Defendant maintains she was an intended third-party beneficiary of the Release in that she falls within the category of “other participants” and, as a result, plaintiff agreed to release her from liability for injuries plaintiff sustained while horseback riding at Cross Country, including those that occurred due to defendant’s negligence.
[*P82] Initially, plaintiff argues the Release fails to clearly express the intent to benefit defendant as a third party. To support this contention, she points to her own testimony that she “did not even know what she [was] signing” and the lack of testimony from anyone associated with Cross Country regarding their intent in entering the contract. Additionally, plaintiff maintains [***44] the phrase “other participants” is ambiguous and could be reasonably interpreted as a “catch-all term” that means “’employees, agents, servants, and/or independent contractors of [Cross Country] who perform services which further [its] business'” and not, as defendant suggests, other paying customers who are similarly situated to plaintiff and defendant. We disagree and find the Release is unambiguous and clearly expresses an intent to benefit an identifiable class, i.e., “other participants,” of which defendant is a member.
[*P83] Looking as we must at the four corners of the parties’ agreement, it is clear that “other participants” were included within the list of individuals or entities to whom the parties to the agreement intended the release of liability to apply. In other words, there was an express intent to benefit “other participants” in the Release. Additionally, when looking at the agreement as a whole, it is clear that the phrase “other participants” refers to those individuals at Cross Country who were similarly situated to plaintiff and defendant, i.e., paying customers or guests who were engaging in the activities provided or offered by Cross Country. Although the term “participants” [***45] is not defined in the Release, as defendant notes, the terms “participate,” “participation,” and “participants” are used throughout the document. Their use clearly reflects that these words were intended to refer to individuals visiting Cross Country for the purpose of engaging in its recreational activities, including horseback riding. The Release provides as follows:
“In consideration of being allowed to participate in any way, including but not limited to trail riding, competing, officiating, working for, recreating in any fashion while visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and activities, I *** the undersigned, acknowledge, appreciate, and agree that;
1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce the risk, the risk of serious injury does exist; and,
2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation; and,
3. I willingly agree to comply [***46] with the stated and customary terms of participation. If, however, I observe any unusual significant hazard during my [**597] [****715] presence or participation, I will remove myself from participation and bring such to the attention of the Company immediately; and,
4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.” (Emphases added.)
Additionally, signature lines on the Release required the “PARTICIPANT[‘]S SIGNATURE” or the signature of a parent or guardian for “PARTICIPANTS OF MINORITY AGE.”
[*P84] During her own deposition, plaintiff acknowledged that the Release used the phrase “other participants” and that she would characterize defendant as “another [***47] participant” in the activities at Cross Country. We agree and find the language used in the Release is clear and that it unambiguously refers to an identifiable class of individuals that includes defendant.
[*P85] Plaintiff next argues the Release is deficient because it purported to relieve liability for nonreleasable claims, including “intentional torts, gross negligence, and/or activities involving the public interest.” She notes language in the Release stated it applied to “THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.” Plaintiff maintains the word “otherwise” encompasses those nonreleasable claims and, thus, renders the Release duplicitous, indistinct, uncertain, and ambiguous.
[*P86] To support her argument, plaintiff relies on Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 394 (Mo. Ct. App. 1999), involving an exculpatory clause that purported “to shield [a party] from ‘any claim based on negligence and *** any claim based upon *** other legal theory.'” There, the reviewing court noted “‘there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.'” Id. (quoting Alack, 923 S.W.2d at 337). It found that the exculpatory clause before it used general language by referencing [***48] claims based on “‘any *** other legal theory,'” stating such language included “intentional torts, gross negligence or any other cause of action not expressly listed.” Id. Thus, because the contract at issue purported to relieve the respondent in the case of all liability but did not actually do so, it was duplicitous, indistinct, uncertain and, ultimately, ambiguous. Id.
[*P87] We find Lewis distinguishable from the present case. The language there was much broader than the language of the Release that plaintiff signed. Unlike in this case, the exculpatory clause in Lewis expressly referred to legal theories other than negligence. Additionally, we note other courts applying Missouri law have suggested that the same language that is at issue in this case was sufficiently clear and unambiguous. See Haines v. St. Charles Speedway, Inc., 689 F. Supp. 964, 969 (E.D. Mo. 1988) (finding a release was clear and unambiguous under Missouri law where it relieved liability for the “negligence of the Releasees or otherwise” (internal quotation marks omitted)); Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 [****716] [**598] (Mo. Ct. App. 1995) (stating language that released claims “‘whether caused by the negligence of the releasees or otherwise'” would “clearly and unambiguously encompass[ ] the negligence of the party seeking to enforce the release” (quoting [***49] Haines, 689 F. Supp. at 969)). In this instance, the Release plaintiff signed used the term “negligence” and did not expressly include references to any “other legal theory.” We find the Release was sufficient to notify plaintiff that she was releasing “other participants” in trail riding activities at Cross Country from claims arising from the “other participant’s” own negligence. See Alack, 923 S.W.2d at 337 (“The exculpatory language must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence.”).
[*P88] Finally, plaintiff also challenges the format of the Cross Country Release. Again, she relies on Lewis, wherein the court additionally found the exculpatory clause before it was not conspicuous and, thus, insufficient to provide notice of a release of liability for negligence claims. Lewis, 6 S.W.3d at 394-95. Specifically, the reviewing court noted the form at issue was titled as a “Rental Form” rather than a release, the form’s exculpatory clause was in approximately five-point font at the bottom of the form, and the plaintiffs “had to sign the Rental Form to receive ski equipment and had to do so while in a line.” Id.
[*P89] Again, the present case is distinguishable. Here, the Release documents [***50] submitted by the parties consisted of two pages. As argued by defendant, the first page was separated into two equal parts. The top portion was labeled “Registration Form” and included several blank spaces for basic guest information. The bottom portion of the form was labeled “RELEASE OF LIABILITY—READ BEFORE SIGINING [sic]” and was separated from the top portion of the form by a dotted line. The titles of both documents appear to be in the same font size with the title of the Release being entirely capitalized. The release information is not relegated to only the bottom portion of the form but, instead, consists of several paragraphs and occupies half of the first page. Significant language in the Release is also capitalized for emphasis. The second page of the Release documents was similarly divided into two equal parts. However, both parts of the second page pertained to Cross Country’s Release. Plaintiff signed the Cross Country Release three times, once for herself and once for each of the minors accompanying her. Further, we note that although plaintiff claims she did not read the release, she did acknowledge that she was required to sign similar documents during previous visits [***51] to Cross Country.
[*P90] Here, we find the Release at issue was unambiguous and conspicuous such that it sufficiently informed plaintiff that she was releasing other individuals participating in Cross Country’s trail riding activities—including defendant—from claims arising out of their own negligence. Plaintiff expressly assumed the risks associated with her horseback riding activities at Cross Country and, through the Cross Country Release she signed, relieved defendant of any duty to protect her from injury. Given the circumstances presented, the trial court committed no error in granting defendant’s motion for summary judgment.
[*P91] We note plaintiff has additionally argued on appeal that the trial court erred in granting summary judgment in defendant’s favor under Missouri law because defendant’s conduct was grossly negligent. She points out that, under Missouri law, “one may never exonerate oneself from future liability for intentional [**599] [****717] torts or for gross negligence, or for activities involving the public interest.” Alack, 923 S.W.2d at 337. Further, plaintiff notes that in response to defendant’s motion for summary judgment, she made the following argument: “There is a genuine issue of material fact as to whether [***52] Defendant acted grossly negligent in participating in a group trail ride with a sizeable group, including children, on a horse she did not trust, that had kicked one person prior, while intoxicated and riding too closely to Plaintiff.”
[*P92] In DeCormier v. Harley-Davidson Motor Co. Group, Inc., 446 S.W.3d 668, 671 (Mo. 2014), the Missouri Supreme Court stated that it would “enforce exculpatory agreements to protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule by alleging [a defendant was] grossly negligent because Missouri courts do not recognize degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has raised in this case both before the trial court and on appeal.
[*P93] As plaintiff notes, Missouri does recognize a separate cause of action for recklessness. Id. at 671-72.
“Conduct is in reckless disregard of another if the actor:
‘[A]ct[s] or fails to do an act which it is [the actor’s] duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of *** harm to the other but also involves a high degree of probability that substantial harm will result to [the other.]’ [Citations.]” Id. at 672.
“[R]ecklessness [***53] is a distinct cause of action from negligence.” Throneberry v. Missouri State Highway Patrol, 526 S.W.3d 198, 208 (Mo. Ct. App. 2017). “Recklessness looks to the tortfeasor’s state of mind” and “is an aggravated form of negligence which differs in quality, rather than in degree, from ordinary lack of care.” Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 139 (Mo. Ct. App. 1999).
[*P94] Under the circumstances presented here, plaintiff cannot rely on a claim of recklessness to avoid enforceability of the Release, as she did not raise the claim before the trial court. SI Securities v. Bank of Edwardsville, 362 Ill. App. 3d 925, 933, 841 N.E.2d 995, 1002, 299 Ill. Dec. 263 (2005) (“Issues not raised in a complaint and points not argued in the trial court are waived on appeal.”).
[*P95] Additionally, the record reflects defendant raised plaintiff’s signing of the release and its express assumption of risk argument as an affirmative defense. In Missouri, “[t]o avoid an affirmative defense alleged in an answer, a plaintiff must plead specifically matters of affirmative avoidance.” Angoff v. Mersman, 917 S.W.2d 207, 211 (Mo. Ct. App. 1996); see also Warren v. Paragon Technologies Group, Inc., 950 S.W.2d 844, 845 (Mo. 1997) (stating that “[r]elease is an affirmative defense that must be pled in an answer” and once done requires a plaintiff to file a reply if he or she intends to assert an affirmative avoidance). “The plaintiff’s reply should distinctly allege the grounds of avoidance,” and “[m]atters of avoidance are not available to a party who does not plead them specifically.” Angoff, 917 S.W.2d at 211. “An affirmative [***54] avoidance is waived if the party raising it has neglected to plead it.” Id.
[*P96] Here, plaintiff did not plead a cause of action based on “recklessness” either in her complaint or in responding to defendant’s answer and motion for summary judgment. As defendant points out, she also did not seek to amend her original pleading to include a claim of recklessness. Accordingly, we find plaintiff’s arguments [**600] [****718] are forfeited and do not preclude summary judgment in defendant’s favor.
[*P97] III. CONCLUSION
[*P98] For the reasons stated, we affirm the trial court’s judgment.
End of Document
Whitewater rafting case where one of the claims is the employer should have provided eye protecting during the rafting trip.
Posted: February 4, 2019 Filed under: Florida, Paddlesports, Rivers and Waterways | Tags: amend, applicability, atrocious, Breach of Contract, breached, Choice of Law, contractual, definite, distress, Duty of care, emotional, emotional distress, Eye Protection, foreign law, gear, immaterial, impertinent', infliction, intolerable, law governs, Notice, outrageous, outrageous conduct, owed, PFD, protective, purportedly, Rafting, reasonable notice, scandalous, surgery, waived, Whitewater Rafting Leave a commentPlaintiff was injured during a corporate team building exercise when she ended up with a small rock in her eye after the whitewater rafting trip.
Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631
State: Florida, United States District Court for the Middle District of Florida, Tampa Division
Plaintiff: Carmen Elena Monteilh Chavarria
Defendant: Intergro, Inc., Timothy Dolan, Felix Renta
Plaintiff Claims: negligence, for intentional infliction of emotional distress, and for breach of contract
Defendant Defenses:
Holding: Mostly for the Defendants
Year: 2018
Summary
A whitewater rafting trip in Honduras booked as a team-building event ended up in litigation in the US. The allegations were the corporation that booked the team building for its employees failed to provide the necessary safety equipment for whitewater rafting.
The allegations may be taken to allege there is a higher duty owed to employees of a corporation partaking in a sport or recreation event then to other participants. The duty of the raft company appears to remain the same. Only employers are argued to have a requirement of higher standards of care.
Facts
Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. The plaintiff alleges that both Intergro and Seproma3 “conduct-ed” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”
After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye.
Analysis: making sense of the law based on these facts.
There were legal discussions about what law applied and other items that won’t be discussed here. It is unclear how a Honduran corporation, and a raft trip in Honduras ended up in a Florida Federal District Court.
The court was succinct in its analysis of the law and facts. The plaintiff argued the defendants were negligent.
To state a claim for negligence, a plaintiff must allege that the defendant owed the plain-tiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage.
According to the plaintiff, there was a duty of the employer, Integro not to select the rafting event and to: “provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.”
The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; that the breach caused her injury; and that she has suffered actual damages as a result of the defend-ants’ negligence. The plaintiff states a claim for negligence.
The next argument made by the plaintiff was a claim for intentional infliction of emotional distress.
To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. The standard for outrageous conduct is distinctly high
The court dismissed this claim finding the plaintiff failed to allege any instances of outrageous, extreme or atrocious conduct.
The plaintiff also sued for breach of contract. “To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach.”
The court dismissed the breach of contract claims against the individual defendants and granted the plaintiff’s motion to amend her complaint against the corporate defendant to clarify or restate her breach of contract claim.
So Now What?
Simple case, right? Well maybe. In the negligence complaint which survived the motion to dismiss, the plaintiff’s allegations stated:
The plaintiff alleges that both Intergro and Seproma “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.”
Two issues surface here. The first is the allegation that white-water rafting requires you to have eye protection. However, the second has possibly greater results. The complaint of not providing enough safety gear is not against the raft company, but against the plaintiff’s employer who booked the trip. The allegation is the employer who booked the trip had a duty to provide proper gear for the trip.
This shifts the burden away from the people who understand the risks, rafting companies, to people who do not understand the risks, companies, churches, groups that book raft trips. Every raft company might be able to argue successfully, that the standards in the industry are to provide a PFD.
However, the company will have to rely on the industry standards of whitewater rafting (or any other sport or recreational activity) but then check to see if there is a higher standard of care owed to employees.
Here the plaintiff seemed to lose most of here employment law claims. The decision indicates she was denied worker’s compensation for her injuries. However, if the activity was argued to be part of her employment, then this may create a greater duty and a greater reluctance on the part of corporations to do team building events.
What do you think? Leave a comment.
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Interesting decision only real defense was the Wyoming’s Recreation Safety Act, which provides little if any real defense.
Posted: January 22, 2019 Filed under: Assumption of the Risk, Paddlesports, Rivers and Waterways, Wyoming | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, Camps, channel, Choice of Law, Common Carrier, Federal Law, Float, floating, genuine, Guest, Hiking, horseback riding, Inherent Risk, Issue of Material Fact, jam, JimMoss, joint venture, Law, lodge, log, matter of law, Mountaineering, Negligence, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, preempt, provider, Punitive damages, Raft, Rafting, Rec-LawBlog, Recreation, Recreation-Law.com, recreational, recreational opportunity, RecreationLaw, River, Saddle, skiing, snowboarding, Sport, Summary judgment, tour operator, TravelLaw, trip Leave a commentDefendants are the company that booked the trip (Vail through Grand Teton Lodge Company) and the travel agent who booked the trip.
Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788
State: Wyoming
Plaintiff: Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Per-sonal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs
Defendant: Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc.
Plaintiff Claims: Negligence, Punitive damages
Defendant Defenses: Wyoming’s Recreation Safety Act
Holding: Mixed, mostly for the plaintiff
Year: 2009
Summary
Decision looks at the liability of the travel agency and the hotel that booked a rafting float trip where three people died. The only defenses of available were the Wyoming’s Recreation Safety Act which helped keep the lawsuit in Wyoming applying Wyoming law, but was ineffective in assisting in the defense of the lawsuit.
The rafting company is not part of this decision so probably the raft company settled with the defendants before the case was filed or this motion was heard.
Facts
Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. GTLC is organized under the laws of Wyoming and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.”
On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. They traveled via several vans to the rafting launch site at Deadman’s Bar. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria Urrutia. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years.
During the float trip, Raft No. 2 struck a log jam. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result.
Analysis: making sense of the law based on these facts.
The first issue was a choice of laws (jurisdiction and venue) provision in the agreement with the travel agency Tauck, which stated venue was to be in Connecticut. The plaintiff was arguing that the case should be moved to Connecticut, which is odd, because the plaintiff’s filed the case to start in Wyoming. However, since they sued in Wyoming, the plaintiff is still arguing that Connecticut law should apply.
Tauck argued the choice of law provisions was for its benefit, and it had the right to waive that provision in the agreement. The court found that Tauck had the right to waive a provision in the agreement that was there for its benefit.
In Wyoming, a contract must be construed according to the law of the place where it was made. There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.”
The court held that the provision was for Tauck’s benefit because the living plaintiffs were residents of Georgia and Louisiana.
The court also stated, even it had not found for Tauck on this issue this way; it would have still used Wyoming law because of Wyoming’s strong public policy of recreational immunity.
Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of. The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.
Choice of law provisions are usually upheld by the courts; however, there are ways to get around them as this court explained.
The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.
The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation providers in Wyoming:
Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.
The court then reviewed the Wyoming’s Recreation Safety Act. The plaintiff’s argued the Wyoming’s Recreation Safety Act did not apply for three reasons.
First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants.
Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act.
Third, they assert that federal law preempts the Act.
The court found the first argument was already resolved in its analysis of jurisdiction above.
The second argument was the Wyoming’s Recreation Safety Act did not apply to the defendant Tauck, because it was a travel agent in Connecticut and not a “provider” as defined under the act. The court found that Tauck was a provider under the act because as part of its package. Provider is defined as “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.”
The final issue was the argument that the state law was pre-empted by federal law. The argument was based on the concessionaire agreement the defendant had with the NPS. Although the concession agreement with the NPS provided for visitor safety, there was nothing in the agreement showing intent to pre-empt the Wyoming’s Recreation Safety Act.
The court then looked to see if the Wyoming’s Recreation Safety Act provided a defense in this case. The court first defined Inherent Risk under Wyoming law.
‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”
[As you can see, the definition of inherent risk is not a broad definition it narrowly defines the risks to those intrinsic or integral to the activity. That leaves out thousands of risks created by man such as steering the raft, water releases, choosing the run, etc. which are probably not protected by the act.]
Outside of the inherent risks, to thwart the act, the plaintiff only needs to argue the risk was not inherent and the case would proceed to trial because the Wyoming’s Recreation Safety Act does not provide a defense to any risk not inherent in the sport. Because the court could not determine what risks were inherent what were not, it held the Wyoming’s Recreation Safety Act did not apply in this case.
In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park, and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. Complex braiding obscures the main channel, and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.
The court moved on to Tauck’s motion for summary judgment because as a tour agency is was not liable for the negligent acts of third parties, it dealt with. The law supports that argument. “As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control.”
However, that general rules does not apply if a contract with the travel agency or marketing state the travel agency will undertake a duty. (Always remember Marketing makes Promises Risk Management has to Pay for.)
Here the court found the promotional materials were marketing and did not rise to the level to be promises to be kept.
The plaintiff also argued Tauck took on a greater duty to the guests when it undertook the duty to have the guests sign the defendant GTLC’s acknowledgment of risk forms. That duty included duty to inform the guests of the risk associated with river rafting. However, the court could find nothing in Tauck’s action indicating it was accepting a greater duty when it handed out the assumption of the risk forms.
The plaintiff’s created a fraud argument. Under Montana’s law:
To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation
The plaintiff’s argued that the defendants made all sorts of statements and advertising that the float trip was a leisurely scenic trip. The channel the raft guide took was not leisurely but was a dangerous channel by some authorities. However, the issue was, did the defendants intentionally made the statements about the river to induce the plaintiffs to the trip.
The defendants wanted the plaintiff’s claim for punitive damages dismissed. In Wyoming, punitive damages appear to be a claim much like negligence. The punitive damages claim was based on the same allegations that the fraud claim was made, that the defendants misrepresented the nature of the float trip.
Punitive damages in Wyoming are:
We have approved punitive damages in circumstances involving outrageous conduct, such as intention-al torts, torts involving malice and torts involving willful and wanton misconduct.” Willful and wanton misconduct is the intentional doing, or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.”
Failing to advise the plaintiffs that the river was running higher than normal because of the spring run off did not rise to a level to be reckless and willful misconduct. The one channel of several the one guide went down was a negligent decision, not a willful one.
So Now What?
Fairly simple, use a release. It would have stopped this lawsuit sooner. If the outfitter would have used a release, it could have protected the lodge and the travel agent. I’m sure the lodge is going to use one now, which will probably just muddy the water because of multiple releases and defendants.
There are very few statutes that provide any real protection in the outdoor recreation industry. Most, in fact, make it easier for the plaintiffs to win. The exception to the rule is a few of the Ski Area Safety Statutes.
Be prepared and do more than rely on a week statute.
What do you think? Leave a comment.
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Chavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631
Posted: January 21, 2019 Filed under: Contract, Florida, Legal Case, Paddlesports, Rivers and Waterways | Tags: amend, applicability, atrocious, Breach of Contract, breached, Choice of Law, contractual, definite, distress, Duty of care, emotional, emotional distress, foreign law, gear, immaterial, impertinent', infliction, intolerable, law governs, Notice, outrageous, outrageous conduct, owed, protective, purportedly, Rafting, reasonable notice, scandalous, surgery, waived Leave a commentChavarria, v. Intergro, Inc., et al., 2018 U.S. Dist. LEXIS 117631
Carmen Elena Monteilh Chavarria, Plaintiff, v. Intergro, Inc., et al., Defendants.
CASE NO. 8:17-cv-2229-T-23AEP
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION
2018 U.S. Dist. LEXIS 117631
July 16, 2018, Decided
July 16, 2018, Filed
COUNSEL: [*1] For Carmen Elena Monteilh Chavarria, Plaintiff: Carlos A. Leyva, LEAD ATTORNEY, Digital Business Law Group, P.A., Palm Harbor, FL; Linda Susan McAleer, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Linda S. McAleer, San Diego, CA.
For Intergro, Inc., Timothy Dolan, Felix Renta, Defendants: Catherine M. DiPaolo, Richard M. Hanchett, LEAD ATTORNEYS, Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, Tampa, FL.
JUDGES: STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
OPINION BY: STEVEN D. MERRYDAY
OPINION
ORDER
On September 25, 2017, the plaintiff sued (Doc. 1) the defendants for negligence, for intentional infliction of emotional distress, and for breach of contract. Asserting the same claims, the plaintiff amended (Doc. 15) her complaint on October 25, 2017. On November 8, 2017, the defendants moved (Doc. 19) to dismiss the amended complaint,1 and on April 28, 2018, the plaintiff moved (Doc. 39) — for the first time — for an order determining that Honduran law governs the claims in this action.2
1 “Defendants’ motion to dismiss amended complaint, alternative motion to strike certain allegations and the affidavit of attorney Carlos A. Leyva, and alternative notice of objection to testimony of Carlos A. Leyva.” (Doc. 19)
2 Also, the plaintiff moves “for partial summary judgment as to liability only, pursuant to [the] breach of contract claim.” (Doc. 43 at 1)
By failing to timely assert the claim, a party waives the application of foreign law. Daewoo Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1257 (11th Cir. 2006); Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (holding that the plaintiff “explicitly submitted to Illinois [not Virginia] law and relied solely on it, and having done so, the district [*2] court was right to apply it to the dispute. . . . The principle of waiver is designed to prohibit this very type of gamesmanship — [the plaintiff] is not entitled to get a free peek at how his dispute will shake out under Illinois law and, when things don’t go his way, ask for a mulligan under the laws of a different jurisdiction.”); Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995) (holding that choice of law is “normally waivable”); Anderson v. McAllister Towing and Transp. Co., 17 F. Supp. 2d 1280, 1286 n.6 (S.D. Ala. 1998) (Volmer, J.) (holding that the defendant waived the right to have Saudi Arabian law applied to a contractual dispute because the defendant failed to give reasonable notice of its intent to assert that foreign law applied). “The failure to give proper notice of the applicability of foreign law does not warrant dismissal . . . . It is more likely that a failure to give reasonable notice will result in a waiver of the applicability of foreign law to the case.” Moore’s Federal Practice, Vol. 9, § 44.1.03[3] (3d ed. 2016).
In both the complaint and the amended complaint, the plaintiff asserts emphatically (and highlights in bold) that each claim is brought under Florida common law. The plaintiff’s response to the motion to dismiss is based entirely on Florida law. Seven months elapsed between the day the plaintiff sued [*3] and the day the plaintiff moved for “choice of law.” Because the plaintiff failed to give timely notice of the claimed applicability of foreign law, she has waived her right to assert that Honduran law governs her claims.
BACKGROUND
Contracting with Intergro in October 2014, the plaintiff, a Honduran national, agreed to provide accounting services at Intergro’s “Shared Services Center” in Honduras. (Doc. 15 at 4) The plaintiff reported to Felix Renta, CFO of the group of companies owned by Timothy Dolan. (Doc. 15 at 4) The plaintiff alleges that both Intergro and Seproma3 “conducted” in Honduras a joint training session for employees. The activities included a white-water rafting event in which the employees were purportedly “supplied with a life jacket and a helmet, but with no other protective equipment, including no eye protection gear.” (Doc. 15 at 5)
3 Seproma, a subsidiary of Intergro, is not a party to this action.
After the rafting event, the plaintiff noticed a burning sensation in her right eye. Later she required eye surgery to remove a small stone. After the surgery, the plaintiff began experiencing “significant” difficulty with her vision. (Doc. 15 at 6) Following a diagnosis of “post traumatic cataract disorder,” the plaintiff required two [*4] further surgeries. In June 2016, a doctor diagnosed her with a 75% loss of vision in the injured eye. (Doc. 15 at 6)
DISCUSSION
Negligence
To state a claim for negligence, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff damage. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). The plaintiff alleges that Integro owed her a duty “not to select” the rafting event in which she was injured and a duty to provide effective personal protective gear instead of “solely allowing the operator of the rafting event to make the decision as to what protective equipment to provide.” (Doc. 15 at 8) The defendants argue (1) that the plaintiff fails to allege sufficiently that the defendants knew that the rafting event posed an unreasonable risk of harm and (2) that, even if the plaintiff had alleged a duty of care owed by Intergro to the plaintiff, she fails to allege any individual duty owed by Dolan or Renta.
The plaintiff alleges that the defendants, who purportedly authorized, sponsored, and paid for the work event, owed her a duty of care; that the defendants breached that duty by failing to ensure that employees were adequately protected; [*5] that the breach caused her injury; and that she has suffered actual damages as a result of the defendants’ negligence. The plaintiff states a claim for negligence.
Intentional infliction of emotional distress
To state a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant intentionally or recklessly committed outrageous conduct and that the conduct caused severe emotional distress. Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009) The standard for outrageous conduct is distinctly high. Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985) (“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”). Whether a person’s alleged conduct is sufficiently outrageous or intolerable is a matter of law. De La Campa v. Grifols America, Inc., 819 So. 2d 940 (Fla. 3d DCA 2002).
The plaintiff alleges (1) that the “[d]efendants understood that their collective refusal to compensate Plaintiff for work related injurious activities, including lost wages and medical care, would cause emotional anxiety and distress to a single working mother of three children[]” (Doc. 15 at 7) and (2) that the defendants’ “intentional refusal to pay Plaintiff’s lost [*6] wages, medical expenses, and other benefits as required by Honduran law . . . caused Plaintiff emotional distress” (Doc. 15 at 9). The plaintiff fails to allege a single instance of “outrageous,” “extreme,” and “atrocious” conduct. Count II is dismissed for failing to state a claim.
Breach of contract
The plaintiff sues for breach of contract “pursuant to non-payment of employment termination benefits.” (Doc. 15 at 1) To state a claim for breach of contract, a plaintiff must allege the existence of a contract, a material breach of the contract, and damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009).
Intergro
The amended complaint fails to identify an unfulfilled contractual obligation. Instead, the plaintiff claims entitlement to payment of benefits under Honduran law but fails to identify the law or the benefits to which she is entitled. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is granted. In amending Count III to provide a more definite statement of the claim against Intergro for breach of contract, the plaintiff must clarify the allegation that “Intergro breached the Contract by failing to pay Plaintiff the benefits that were due under same pursuant to [*7] Honduran law.” (Doc. 15 at 10) Ambiguity exists as to whether Honduran law or the contract governs the obligation to pay, whether Honduran law or the contract governs the amount of the required payment, or to whether and to what extent Honduran law and the contract otherwise control the obligation to pay and the amount of the payment. The amended complaint must clarify the plaintiff’s claim in this respect, among others.
Dolan and Renta
The plaintiff fails to state a claim against either Dolan or Renta. In Count III, the plaintiff alleges that the plaintiff’s “employment with Intergro was controlled by a binding contract” and that Intergro breached the contract “by failing to pay Plaintiff the benefits that were due under same pursuant to Honduran law.” (Doc. 15 at 9-10) But in the prayer for relief, the plaintiff (who purportedly contracted only with Intergro) prays for judgment against all defendants “for the full amount of contractual benefits due under Honduran law.” (Doc. 15 at 10) The complaint lacks an allegation that Dolan and Renta are parties to the contract. Count III fails to state a claim against Dolan and Renta.
Motion to strike
The defendant moves (Doc. 19) under Rule 12(f), Federal Rules of Civil Procedure, to strike [*8] the allegations in paragraphs 7, 8, 14, 31, 32, 35, and 37 of the amended complaint and moves to strike the affidavit of Carlos A. Leyva (Doc. 15-1). Under Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “A motion to strike is a drastic remedy” and “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Augustus v. Board of Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962). “An allegation is ‘impertinent’ or ‘immaterial’ when it is neither responsive nor relevant to the issues involved in the action. . . . ‘Scandalous’ generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Moore’s Federal Practice, Vol. 2, s 12.37[3] (3d ed. 2016). The defendant fails to identify and describe why the allegations are immaterial, irrelevant, and scandalous, and the plaintiff argues plausibly that the allegations are “related” to the controversy, are material, and are pertinent.
The defendant argues that Carlos Leyva’s affidavit contains allegations that have “no relation to [*9] this controversy and cause prejudice to Defendants because they are inadmissible hearsay.” (Doc. 19 at 12) The plaintiff responds that the “[d]efendants . . . conflate what is required for summary judgment with what is required in the pleadings. . . . The evidentiary burden that Defendants assume . . . does not exist at this stage in the proceedings.” (Doc. 21 at 16) For the reasons stated by the plaintiff, the defendants’ motion to strike Carlos Leyva’s affidavit is denied.
CONCLUSION
The defendant’s motion (Doc. 19) to dismiss is GRANTED IN PART. Count II is DISMISSED. Count III is DISMISSED against Dolan and Renta. Construed as a motion for a more definite statement of Count III, the motion (Doc. 19) is GRANTED. The plaintiff must amend Count III to provide a more definite statement of the claim against Intergro for breach of contract.
The defendant’s “alternative motion [Doc. 19] to strike certain allegations and to strike the affidavit of attorney Carlos A. Leyva” is DENIED. The plaintiff’s motion (Doc. 39) for “choice of law” is DENIED. The plaintiff’s motion (Doc. 43) for partial summary judgment on Count III is DENIED.
No later than JULY 27, 2018, the plaintiff must amend the complaint [*10] to comply with this order4 The plaintiff must add no new claim.
4 That is, the plaintiff must (1) remove the claims for intentional infliction of emotional distress and (2) remove the claims against Dolan and Renta for breach of contract. Also, the plaintiff must amend Count III to provide a more definite statement of the claim against Integro for breach of contract.
ORDERED in Tampa, Florida, on July 16, 2018.
/s/ Steven D. Merryday
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE
Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788
Posted: January 12, 2019 Filed under: Assumption of the Risk, Legal Case, Wyoming | Tags: channel, Choice of Law, Common Carrier, Federal Law, Float, float-ing, genuine, Guest, horseback riding, Inherent Risk, Issue of Material Fact, jam, joint venture, lodge, log, matter of law, preempt, provider, Punitive damages, Raft, Rafting, recrea-tional opportunity, Recreation, recreational, River, Saddle, Sport, Summary judgment, tour operator, trip 1 CommentRizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788
Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Personal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs, vs. Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc., Defendants.
Case No. 08-CV-139-J
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING
2009 U.S. Dist. LEXIS 139788
October 1, 2009, Filed
COUNSEL: [*1] For Alexis R Rizas, individually and as the personal representative of the wrongful death beneficiaries, on behalf of John J Rizas, John Friel, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Elizabeth A Rizas, Ronald J Miciotto, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Linda Lewis Clark, James Clark, individually, Lawrence Wilson, individually, Joyce Wilson, individually, Plaintiffs: Mel C Orchard, III, Roy A Jacobson, Jr, LEAD ATTORNEY, SPENCE LAW FIRM Jackson, WY USA.
For Grand Teton Lodge Company, a Wyoming corporation, Defendant: Joe M Teig, LEAD ATTORNEY, Susan Combs, HOLLAND & HART, Jackson, WY USA; Maryjo C Falcone, Peter W Rietz, LEAD ATTORNEY, RIETZ LAW FIRM, Dillon, CO USA.
For Tauck Inc, a New Jersey corporation doing business in the state of Connecticut, also known as Tauck Tours Inc, also known as Tauck World Discovery Inc, Defendant: William M McKellar, LEAD ATTORNEY, McKELLAR TIEDEKEN & SCOGGIN, Cheyenne, WY USA.
JUDGES: ALAN B. JOHNSON, UNITED STATES DISTRICT JUDGE.
OPINION BY: ALAN B. JOHNSON
OPINION
ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants’ [*2] motions for summary judgment. Tauck, Inc. filed five motions and Grand Teton Lodge Company (“GTLC”) filed one, all on July 22, 2009. After careful consideration of the arguments and evidence supplied by both Plaintiffs and Defendants, for the reasons discussed in detail below, the Court finds that a genuine issue of material fact exists regarding the inherent risk of the river float activity. In all other respects, the Court will grant the defendants’ motions for summary judgment.
FACTS
The Court relates the following facts in the light most favorable to Plaintiffs, who are opposing Defendants’ motions for summary judgment.
Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108, ¶ 9. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” Id. ¶ 24. This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. Id. ¶¶ 23, 24. GTLC is organized under the laws of Wyoming [*3] and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Id. ¶¶ 7, 8. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Id. ¶¶ 23, 24. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.” Plaintiff’s Resp. to Motion for Summary Judgment on Plaintiffs’ Claim for Fraud, Ex. 5.
On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. Stipulated Facts ¶ 27. They traveled via several vans to the rafting launch site at Deadman’s Bar. Id. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Id. ¶ 28. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria [*4] Urrutia. Id. ¶ 29. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years. Id. ¶ 30.
During the float trip, Raft No. 2 struck a log jam. Id. ¶ 32. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result. Further facts will be discussed as necessary to resolve each legal issue.
DISCUSSION
This Court has jurisdiction pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the plaintiffs and defendants. Vail Resorts was dismissed from this case for lack of jurisdiction on June 16, 2009. Plaintiffs are citizens of Maryland, Arizona, Louisiana, and Georgia. GTLC is incorporated in Wyoming, which is also its principal place of business. Tauk is incorporated in New Jersey, and its principal place of business is Connecticut.
Summary judgment is appropriate “if 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.” [*5] Fed. R. Civ. P. 56(c); e.g., Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1144 (10th Cir. 2009). The Court must view all facts and make inferences from the evidence in the light most favorable to the non-moving party. E.g., Utah Animal Rights Coalition v. Salt Lake County, 566 F.3d 1236, 1242 (10th Cir. 2009). The Court may consider only admissible evidence. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998). See also Fed. R. Civ. P. 56(e)(1).
Choice of Law
Because the Court is sitting in diversity, it would normally apply Wyoming law. See Butt v. Bank of America, N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). In this case, however, Plaintiffs have raised a choice-of-law issue by urging this Court to apply Connecticut law. A federal court sitting in diversity applies the choice-of-law principles of the state in which it sits. Morrison Knudson Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n.12 (10th Cir. 2008). Accordingly, this Court will apply Wyoming choice-of-law principles.
Plaintiffs first contend that Connecticut law applies because Tauck and its clients signed a contract to that effect. Specifically, the contract states the following:
It is agreed by Tauck World Discovery and the Tour Member that all legal claims, actions and proceedings against Tauck World Discovery under, in connection with, resulting from or incident to a tour may be instituted, if at all, only in a state or federal court within the State of Connecticut, USA, to the exclusion of the courts of or in any other state or jurisdiction. It is further agreed that all such claims, actions and proceedings shall [*6] be governed by and decided in accordance with the laws of the State of Connecticut.
Plaintiffs’ Resp. to Motion for Summary Judgment on Plaintiffs’ Claims for Fraud, Ex. 2. Tauck counters by claiming that the choice-of-law provision was intended for its benefit, and therefore it can waive that provision. Furthermore, it points out that, if the contract is to be enforced, there are a number of other provisions that would benefit Tauck, such as the choice-of-forum provision in the excerpt above.
In Wyoming, a contract must be construed according to the law of the place where it was made. J.W. Denio Milling Co. v. Malin, 25 Wyo. 143, 165 P. 1113, 1116 (Wyo. 1917). There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.” E.g., Lanna v. Greene, 399 A.2d 837, 841 (Conn. 1978). See Takahashi v. Pepper Tank & Contracting Co., 58 Wyo. 330, 131 P.2d 339, 354 (Wyo. 1942). The question in this case is whether the choice-of-law provision was included for Tauck’s benefit.
The Court finds that it was. As far as the evidence indicates, none of the tour members or their survivors who are involved in this action are residents of Connecticut. [*7] The three plaintiffs who were also tour members, Mr. Clark and the Wilsons, are residents of Louisiana and Georgia, respectively. The residence of the three deceased tour members is not clear from the evidence submitted to the Court. Even if one of the three decedents were residents of Connecticut, that does not necessarily mean that the provision existed for that person’s benefit. Tauck drafted the provision at issue. The provision benefits Tauck by ensuring that any claims will be litigated in the forum most convenient to it, and under the law with which it is most familiar. Meanwhile, there is little or no benefit to any tour member who is not a resident of Connecticut. Even then, the choice-of-law provision would benefit the tour member by happenstance rather than by intention. Accordingly, Tauck may waive the choice of law provision, and has affirmatively stated that it has done so. Its waiver is further supported by the fact that it has never contended that suit is improper in this Court as a result of the choice-of-forum provision in the same contract.
Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due [*8] to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of Wyoming’s Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 through -123 (LexisNexis 2009). The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Wyo. Stat. Ann. § 1-1-122(a)(iii). Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.
It is this very policy of protecting these providers that renders the contractual choice-of-law provision invalid. The Wyoming Supreme Court has not answered the question of whether the Act represents so strong a Wyoming policy as to render invalid a contractual choice-of-law provision that would eliminate the Act’s application. This Court believes that Wyoming, like other states, would look to general contract principles to resolve this question. The Restatement (Second) of Conflict of Laws § 187 (1971) states:
(1) The law of the state chosen by the parties to govern [*9] their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.
The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract [*10] because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.
The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Wyo. Stat. Ann. § 1-1-122(a)(i) (LexisNexis 1989). In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” 1996 Wyo. Sess. Laws ch. 78, § 1. Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation [*11] providers in Wyoming:
The Court recognizes that its reading of the Wyoming Recreational Safety Act provides enormous protection to those in the business of providing recreational activities. . . . Consumers in Wyoming are now faced with an entire industry whose economic and consequent legislative power enables them to conduct business with only a passing thought to the safety of those who utilize their services. Despite this frightening prospect, the Court recognizes its place in our nation’s federal system of government. A court should not decimate the purpose of a legislative act, no matter how distasteful, when that purpose is clearly incorporated in the language of the act.
Cooperman v. David, 23 F. Supp. 2d 1315, 1321 (D. Wyo. 1998). Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.
The Court’s decision is consistent with precedent set by the Court of Appeals for the Tenth Circuit. In Electrical Distributers, Inc. v. SFR, Inc., one issue considered by the court was whether the trial court properly applied Colorado law where a covenant not to compete named Colorado as the applicable law, [*12] but was to be performed exclusively in Utah. 166 F.3d 1074, 1083-84 (10th Cir. 1999). Using the analysis that this Court has adopted above, the Court of Appeals determined that Utah’s strong interest in careful scrutiny of covenants not to compete controlled over any interest Colorado had in enforcement of a contract made within its boundaries, but to be performed outside them. Id.
Recreation Safety Act
Defendants rely on Wyoming’s Recreation Safety Act and claim that, pursuant to the Act, they owed no duty of care to any of the tour members. In response, Plaintiffs provide three reasons that the Act does not apply. First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants. Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act. Third, they assert that federal law preempts the Act. The Court will now address Plaintiffs second and third arguments in turn.
Wyo. Stat. Ann. § 1-1-122(a)(ii) defines “provider” as follows: “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.” Plaintiffs claim that Tauck is not a provider because of its position that it did not conduct the activity itself, but rather was a travel agent [*13] that procured the raft trip on behalf of its tour members. In doing so, however, Plaintiffs overlook the undisputed fact that Tauck offered the float trip as part of its tour package. Given that the Act includes offering a recreational opportunity in its definition of “provider,” it is obvious that Tauck is, in fact, a provider.
Plaintiffs’ preemption argument requires significantly more discussion. State law may be preempted by federal law in three ways. First, Congress may expressly preempt state law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996). Second, Congress may preempt an entire field by regulating that field so comprehensively that there is no room for state regulation. Id. at 31. Third, federal and state law may be in irreconcilable conflict, preempting state law even though Congress has not explicitly stated its intent to do so. Id. None of these three types of preemption occurred in this case.
The specific federal “law” that Plaintiffs believe preempt the Act is the concession contract between GTLC and the National Park Service. In particular, Plaintiffs point to the following language in the concession contract:
The Concessioner is responsible for providing a safe and healthful environment for its employees and clients as outlined [*14] in the Contract. The Concessioner will develop a Risk Management Program that will be approved by the Service in accordance with the Occupational Safety and Health Act (OSHA) and Service Guidelines. The Risk Management Program will be reviewed annually by the Service.
Plaintiffs’ Resp. to Motion For Summary Judgment on Wyoming Recreation Safety Act, Ex. 3. Plaintiffs claim that the concession contract “change[s] the character of the state law provisions encompassed by” the Act, and therefore results in an actual conflict between state and federal law. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, at 12. Plaintiffs also point to the National Park Service Management Policies 2006, which provides for visitor safety emergency response and emergency preparedness. That document refers several times to the safety of visitors to the park. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, Ex. 4.
Plaintiffs make an argument similar to that raised by the plaintiff in Carden v. Kelly, 175 F. Supp. 2d 1318 (D. Wyo. 2001). In Carden, this Court summarized the plaintiffs’ arguments as follows:
1) Plaintiff’s injuries occurred on federal land, the Bridger-Teton National Forest; 2) Defendants, in order to operate [*15] their business in the Bridger-Teton National Forest had to obtain a special-use permit from the Forest Service; 3) because Plaintiff’s injuries occurred on federal land, federal law, namely Forest Service regulations and the Defendants’ special-use permit apply; 4) the special-use permit contains provisions concerning negligence and injury to patrons of Forest Service permit holders, which Plaintiff claims requires the permit holders to inform their guests of the risks and have them sign a risk acknowledgment form; and 5) provisions in the Forest Service regulations requiring patrons of the Forest Service concessionaires to assume “usual” risks of activities within the National Forest conflicts with, and thus preempts, the Wyoming Recreation Statute.
Carden, 175 F. Supp. 2d at 1322. The Court determined that, although Congress had the authority to pre-empt the Recreation Safety Act on federal lands, it did not do so. Id. at 1322-26.
In the current case, the Court will follow Carden‘s sound reasoning. The Management Policies and the concession contract cited by Plaintiffs do broadly emphasize the Park Service’s interest in public safety, but does not indicate any intent to preempt Wyoming tort law. “Courts do not ‘lightly attribute [*16] to Congress or to a federal agency the intent to preempt state or local laws.'” Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1204 (10th Cir. 2009) quoting Nat’l Solid Wastes Mgmt. Ass’n v. Killian, 918 F.2d 671, 676 (7th Cir. 1990).
Plaintiffs in the case at bar attempt to distinguish Carden by noting that the requirements in Carden were imposed by the Forest Service, while this case involves the Park Service. Plaintiffs do not point out how this fact is relevant, and the Court does not discern any. The Park Service was created to
promote and regulate the use of the Federal areas known as national parks . . . to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.
16 U.S.C. § 1. Its mission is therefore one of conservation, and the Court does not perceive any intent to impact state tort law. The Court finds that federal law has not preempted the Wyoming Recreational Safety Act.
It is now incumbent upon the Court to determine if the Act applies to the circumstances of this case and insulates the defendants from liability. The Act states, in relevant part,
(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport [*17] or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.
(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.
(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.
Wyo. Stat. Ann. § 1-1-123.
Past disputes regarding the Act’s application involve, as does this case, questions about what constitutes an “inherent risk.” “‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Id. § 1-1-122(a)(i). The Wyoming Supreme Court has had few occasions to address the determination of what is an inherent risk of a particular activity. One of the more recent cases arose as a certified question from this Court. Jackson Hole Mount. Resort Corp. v. Rohrman, 2006 WY 156, 150 P.3d 167 (Wyo. 2006). The [*18] question certified was: “When faced with motions for summary judgment in which there are no genuine issues of material fact, how should a court differentiate, as a matter of law, between ‘inherent risks’ . . . and non-inherent risks . . . ?” Id. at 168.
[The] general answer is that if such a motion is filed, the trial court must scrutinized the facts brought forward by the parties with great care. If the court can say that, given the evidence, this is an “inherent risk” and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it. On the other hand, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder).
Id. This formulation, of course, depends on properly characterizing the activity and risk. For example, in the current case, the activity may be characterized as a “scenic float trip”–as Plaintiffs do throughout their memorandum in opposition to summary judgment–or as “river rafting.” The particular [*19] risk may be described generically as falling out of the boat or, more specifically, as colliding with a log jam resulting in ejection from the raft.
Governing precedent demands that the activity and risk be described as particularly as possible. In Cooperman v. David, for example, the Court of Appeals for the Tenth Circuit stated that, “[w]hen attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the [injured person] was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record.” 214 F.3d 1162, 1167 (10th Cir. 2000). In this case, the activity is best described as river floating under the water conditions that were apparent when the tour members embarked. The risk is best described as the risk that the raft would encounter a log jam, ejecting one or more tour members into the river.
Applying the law from this point forward is somewhat more problematic because the precedent in this area is not entirely clear. In Cooperman, the court affirmed this Court’s grant of summary judgment in favor of the defendant because a loose saddle cinch was an inherent risk of the activity of horseback [*20] riding. Id. at 1169. The trial court received expert testimony that a slipping saddle was a risk inherent to horseback riding. Id. at 1168. There was also testimony that the particular saddle at issue was cinched too loosely, and an inference that the loose cinching caused the saddle to slip. Id. The Cooperman court said that, even with this evidence, the risk was inherent because a person cinching a saddle had to balance between doing so too tightly and too loosely. “This imprecision in the cinching of the saddle is ‘characteristic’ or ‘typical’ of and therefore ‘inherent in’ the sport of horseback riding.” Id. Critically, the court stated,
As part of the Coopermans’ burden of showing that [the provider] owed Dr. Cooperman a duty of care, the Coopermans must provide some evidence to explain why the saddle fell, which explanation is not inherent to the sport. . . . Thus, stating only that the cinch was not tight enough does not show that the risk was no longer inherent to the sport. The Coopermans have the burden of presenting some evidence on summary judgment that would raise a question of fact that the loosely cinched saddle was caused, not by an inherent risk, but rather by a risk that was atypical, uncharacteristic, [*21] not intrinsic to, and thus not inherent in, the recreational activity of horseback riding. The Coopermans have not met this burden.
Id. at 1168-69.
The current case presents certain parallels. It is undisputed based on the evidence before the Court that being ejected or otherwise falling out of a raft is generally an inherent risk of river floating. For example, Sheri Griffith, an outfitter and river guide, testified that it is an inherent risk that a person might “become a swimmer” during a float trip. Griffith Depo. 152. There is no testimony that contradicts her opinion. It is also undisputed that the rafting guide instructed the tour members that, if they were to end up in the river, the proper procedure was to float on their back until they could be recovered. L. Wilson Depo. 318; Hobbs Depo. 136. This is similar to the expert testimony in Cooperman that a slipping saddle is an inherent risk of horseback riding: it describes the risk in general terms without looking at the specific cause. Also like Cooperman, Plaintiffs in this case have not submitted admissible evidence that describes a specific cause of the injury, and shown that the particular cause falls outside of the realm of being an inherent [*22] risk. Following the Cooperman analysis, then, the Court would conclude that Plaintiffs have failed to demonstrate that a genuine issue of material fact exists regarding whether encountering a log jam resulting in ejection from the raft is an inherent risk of river floating.
But the Court must also consider Sapone v. Grand Targhee, Inc., 308 F.3d 1096 (10th Cir. 2002). In that case, a six-year-old girl was injured when her horse bolted. Sapone, 308 F.3d at 1098. The plaintiffs presented evidence from an expert that “(1) the instructions were inadequate, (2) the horse was too large, (3) headgear should have been provided, (4) the trail ride may have been too dangerous, and (5) her parents were not notified of the accident.” Id. at 1104. It is not entirely clear why these facts would affect the nature of the risk. The court concluded “that a reasonable jury might conclude that [the girl’s] injuries were the result of negligence that is not characteristic of, intrinsic to, or an integral part [of] horseback riding.” Id. at 1105. Two possible interpretations of this passage are that negligence is never an integral part of horseback riding, or that some negligence is an integral part, but not the negligent acts complained of in that case. The former interpretation would render the statute futile [*23] as a way to safeguard recreation providers against liability, so it is unlikely that the Court of Appeals intended that meaning. The latter interpretation is more plausible, but raises the difficult question of what types of negligence are inherent to a particular activity and which are not. In either case, a trial court or fact finder is confronted with the difficult task of determining whether negligence occurred in order to determine whether the defendant owed a duty.
In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Rutter Depo. Ex. 1. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. [*24] Complex braiding obscures the main channel and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.
Negligence
Tauck moved for summary judgment in its favor on Plaintiffs’ negligence claim. Tauck’s argument boils down to an assertion that it is essentially a travel agency, and therefore is not liable for any negligence committed by GTLC. Plaintiffs contend that Tauck is a common carrier, and therefore subject to a heightened duty of care. They also assert that Tauck assumed a duty to warn of dangerous conditions when it distributed a form entitled “Acknowledgment of Risk” on the way to the river.
As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control. E.g., Sova v. Apple Vacations, 984 F. Supp. 1136, 1140 (S.D. Ohio 1997).1 The general rule may not apply, however, in the face of contractual language to the [*25] contrary. In this case, Plaintiffs contend that Tauck’s promotional materials contained promises that Tauck would assume a certain duty. For example, they point to language in which Tauck states tour members will “enjoy VIP attention from our experienced Tauck Directors who are dedicated to making your trip the best it can be” and that “[o]nce you arrive at your Tauck Bridges destination, leave the day-to-day details to us–all you need to do is have fun with your family.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5-6. They compare this language to that relied upon by the court in Stevenson v. Four Winds Travel, Inc. to find that the plaintiff had a right to expect a warning of a slippery condition while on a tour. 462 F.2d 899, 906-07 (5th Cir. 1972).
1 The Wyoming Supreme Court has not yet addressed this question, but it would likely follow this general rule.
Stevenson, however, is distinguishable from the current case. First, the language in the promotional materials in Stevenson is considerably stronger than those distributed by Tauck. For example, the materials stated that guests would be “cared for by a carefully selected Four Winds Tour escort” and that the tour directors “know precisely what you will be seeing and doing every day.” Id. In contrast, Tauck’s materials state that trips “are enhanced by [*26] our experienced directors,” and that Tauck will “take care of all [arrangements] for you, so you can indulge in the joys of travel without any of the day-to-day hassles.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5. To the extent that these vague statements mean anything at all, it falls far short of a promise to assume a duty. In addition, there is no indication in Stevenson that there was a separate contract. In this case, however, Tauck’s “Conditions of Tour”–relied upon by Plaintiffs in its argument that Connecticut law is applicable–contains a provision in which Tauck disclaims liability for “any Damages, or any problems concerning any . . . supplier providing tour services [or] programs, . . . including but not limited to . . . negligence by any . . . other supplier providing tour services [or] programs.” Plaintiffs’ Resp. to Motion for Summary Judgment on Recreation Safety Act, Ex. 1. Courts have relied on similar disclaimers to bar liability for acts of third parties that are beyond the control of the tour operator because the disclaimers are evidence that the operator did not intend to assume a guarantee of safety, even if the disclaimer is not itself [*27] contractually binding. E.g., Sova, 984 F. Supp. at 1139-40 (collecting illustrative cases). Accordingly, this Court finds that, as a matter of law, Tauck had no duty, either by virtue of its position as a tour operator or assumed through its promotional materials.
Plaintiffs next contend that Tauck is a common carrier pursuant to the common law and Article 10, Section 7 of the Wyoming Constitution. That provision states: “All corporations engaged in the transportation of persons, property, mineral oils, and minerals products, news or intelligence, including railroads, telegraphs, express companies, pipe lines and telephones, are declared to be common carriers.” Plaintiffs then rely upon section 314A of the Restatement (Second) of Torts, which states that a common carrier has a duty to its passengers to take reasonable action “to protect them against unreasonable risk of physical harm,” and to render aid if they are harmed. Tauck contends that it is not a common carrier because it does not actually transport tour members during the river floating trip.
Tauck’s position has merit, and there is authority for the proposition that a tour operator is not a common carrier. E.g., Stafford v. Intrav, Inc., 841 F. Supp. 284, 287 (E.D. Mo. 1993). The Court need not resolve the question of whether Tauck is a common carrier, however, because even if it is in general, it was not transporting [*28] tour members at the time of the raft collision. The undisputed evidence is that the tour members, during the rafting trip, were being transported by GTLC, not Tauck. In short, the tour members were no longer subject to Tauck’s custody or control, and therefore Tauck owed no duty. See Id. (tour operator had no duty to warn of dangerous condition on premises not under its control).
This leaves the question of whether distribution of “Acknowledgment of Risk” forms resulted in an imposition of a duty on Tauck. Plaintiffs cite section 324A of the Restatement (Second) of Torts, which states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
The Wyoming Supreme Court adopted this provision as reflected in subsection (a) in Ellsworth Bros., Inc. v. Crook, 406 P.2d 520, 524 (Wyo. 1965). Relying [*29] on the Restatement, Plaintiffs claim that “by requiring its Tour Directors to get guests to sign GTLC’s Acknowledgment of Risk form well in advance of arriving at the Lodge, Tauck undertook the duty to inform guests about risks associated with the raft trip.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 7.
This statement, however, assumes that by undertaking to distribute the “Acknowledgment of Risk” form, Tauck was undertaking the broader task of informing guests about risks associated with the raft trip. There is no evidence before the Court to support this assumption. The only evidence that Tauck undertook to do anything for GTLC is testimony that GTLC asked Tauck to present the form to those tour members who were to participate in the rafting trip. Rice Depo. 47.2 There is no testimony that suggests Tauck was asked, or agreed, to inform guests of all risks involved in the rafting trip.
2 There is some conflict in the record regarding precisely when the tour members were given the form, but that is not material for resolution of this issue.
The Court finds as a matter of law that Tauck did not owe a duty to the tour members to warn them of the conditions of the river or otherwise act to prevent their injuries. Tauck may not be found negligent on a theory of direct liability.
Joint Venture
The Court must next address Tauck’s [*30] contention that it may not be held vicariously liable for GTLC’s negligence because the two companies did not form a joint venture. Tauck argues that GTLC was simply a supplier, and that the two businesses did not jointly embark on a business venture. In Wyoming, a person alleging the existence of a joint venture has the burden to prove four elements:
(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.
Popejoy v. Steinle, 820 P.2d 545, 549 (Wyo. 1991) quoting Holliday v. Bannister, 741 P.2d 89, 93 n.1 (Wyo. 1987).
Considering the first element, that of an agreement, the Court finds that there is a genuine issue of material fact regarding whether Tauck and GTLC agreed to provide services. Plaintiffs have submitted a document entitled “Tour Operator Contract,” which governs the terms of the sale of room blocks and river float trips to Tauck. Plaintiff’s Resp. to Motion for Summary Judgment on Joint Venture, Ex. 5. Several witnesses, officials of Tauck, testified that they viewed GTLC as a supplier, not as a partner. Nevertheless, viewing [*31] the contract in the light most favorable to Plaintiffs, it is not unreasonable to characterize it as an agreement for the purposes of this joint venture analysis.
The Court also finds that a reasonable jury could find that Tauck and GTLC had a common purpose. This purpose was to sell tour members lodging and river float trips. Tauck’s purpose was somewhat broader, generally, because it sold lager tours of which the interaction with GTLC was a small part, but this does not remove the fact that GTLC and Tauck were united in purpose during this portion of the tour. Similarly, they both had a pecuniary interest in the enterprise. Tauck points out that GTLC received the same amount for its float tours whether its guests were members of a Tauck tour or individuals. But the arrangement nonetheless furthered GTLC’s financial goals by bringing significant numbers of guests to GTLC. Similarly, Tauck benefitted financially by featuring GTLC lodging and the float trip as part of its tour.
The Court does not find, however, that Tauck and GTLC had an equal right of control. Plaintiffs rely heavily on the fact that both business had the capability to cancel the float trip at their discretion, but that [*32] does not suggest an equal voice in the activity in question. For example, the evidence submitted to the Court indicates that the Tauck tour director brought the residents to the lodge and interacted with GTLC staff, but there is no indication that any Tauck official had the authority to direct any day-to-day activities. It had no input into the decision to hire Mr. Hobbs, the guide of Raft No. 2, or to direct the manner in which he conducted the rafting trip. Tauck could not have directed that the river guide take the group down a different part of the river, or terminated the guide’s employment. If GTLC had decided to terminate its river floating operations, Tauck would have been powerless to prevent it, aside from the scope of any service contract that was currently in place. Tauck and GTLC were two separate operations, and there is no evidence submitted to the Court that suggests otherwise. The Court finds, as a matter of law, that Tauck and GTLC did not have a joint venture.
The Court notes that, with no direct liability and no joint venture resulting in vicarious liability, Tauck is not liable for any claims of negligence.
Fraud
Plaintiffs have alleged that GTLC and Tauck committed [*33] fraud by enacting a scheme whereby the tour members were lured into taking a dangerous rafting trip as a result of GTLC and Tauck’s material misrepresentations regarding the level of danger. “To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation.” Garrison v. CC Builders, Inc., 2008 WY 34, 179 P.3d 867, 877 (Wyo. 2008). The false representation must be made knowingly: “One cannot be guilty of fraudulently or intentionally concealing or misrepresenting facts of which he is not aware.” Meeker v. Lanham, 604 P.2d 556, 559 (Wyo. 1979). Plaintiffs’ fraud claim fails because they have failed to provide evidence from which a reasonable jury could find by clear and convincing evidence that Defendants knowingly made a false representation of a material fact.
Plaintiffs first cite statements made in Tauck’s travel brochure discussing the rafting trip. “[T]he record shows that Tauck’s 2006 Brochure described the Snake River as a ‘meandering float trip,’ when in actuality, the Plaintiffs’ [sic] ended up on a whitewater raft trip with Class IV rapids.”
[*34] Plaintiffs’ Resp. to Motion for Summary Judgment on Fraud Claim, 8. Plaintiffs also cite statements in Tauck’s promotional materials stating that its tour directors are “knowledgeable professionals, with a wealth of information,” and that Tauck “does it all for you,” and that tour members can “leave all day-to-day details” to Tauck. Id.
For the most part, these promotional statements are “mere puffery” E.g., Alpine Bank v. Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009). The one arguable exception is the description of the activity as a “meandering float trip,” which may be sufficiently definite that a sensible person may be justified in relying on it to some degree. Even in that case, however, there is no indication that Tauck was aware that the river floating trip would be anything other than as described.
The key problem with Plaintiffs’ case is that there is no indication that this particular stretch of the Snake River was inherently dangerous on the day of the collision. Instead, the evidence, viewed in a light most favorable to Plaintiffs, indicates that the guide of the raft that collided with the log jam took the raft into an unsafe channel. For example, the deposition of Wayne Johnson, one of the river guides on June 2, 2006, indicates [*35] that he viewed the “Funnelcake” channel as dangerous on that date. Johnson Depo. 184. Mr. Reed Finlay, a river guide with a different company, testified at some length about the “Funnelcake” channel, specifically that it was dangerous on the date of the collision. Finlay Depo. 126-32. Indeed, it is undisputed that the float trip on the day of the collision was peaceful and uneventful until Raft No. 2 entered the channel and struck the log jam. J. Wilson Depo. 76-77; R. Rizas Depo. 102, 209, 219. In short, there is no indication that Tauck made a misrepresentation when the rafting trip was marketed as a “meandering float trip.”
Plaintiffs also rely on several statements made by employees of Tauck and GTLC before the raft trip. First, Mr. Wilson saw saw people white water rafting while on the bus trip into Jackson on June 1, 2006. When the he asked the tour director, Mr. Rice, if that was what their rafting trip would be like, Mr. Rice replied that the rafting trip would be a “leisurely, scenic float down the Snake River,” and not to worry. Mr. Rice also stated that Tauck had “never lost anybody.” L. Wilson Depo. 61-62. Second, while the groups were in the GTLC vans on the way to the [*36] river, Ms. Elizabeth Rizas asked the van driver about the safety of the float trip. The van driver responded by telling her that she was more likely to be in an accident in the van traveling to the river than on the float trip. J. Wilson Depo 39-40. There is also some evidence that the van driver also stated that they had “never lost anybody yet.” Id. 60.
Again, there is no evidence indicating that these statements are deliberately false. Much like Tauck’s advertising, there was no reason for Tauck or GTLC to believe that the rafting trip would be anything other than a leisurely, scenic float trip. Although Plaintiffs repeatedly rely on the fact that the river was flowing stronger and faster than usual because of the spring thaw, there is no evidence suggesting that this change in conditions precluded GTLC from being able to provide the safe and relaxing experience that the tour members were expecting. The additional fact that the float trip resulted in a devastating collision instead is not relevant when considering what Tauck and GTLC knew at the time they made the statements at issue.
Lastly, Plaintiffs contend that Defendants committed fraud by failing to inform them of the full nature [*37] of the risks on this particular float trips. The Court finds that any failure to inform the guest of these dangers is not actionable as a matter of law. First, there can be no fraud because there is no statement involved. The Court also relies on the Wyoming Supreme Court’s explicit refusal to adopt the tort of nondisclosure in Pittard v. Great Lakes Aviation, 2007 WY 64, 156 P.3d 964, 976 (Wyo. 2007). Plaintiffs have failed to establish the existence of a genuine issue of material fact that would preclude summary judgment in Defendants’ favor on the fraud issue.
Punitive Damages
GTLC has moved to dismiss Plaintiffs’ claim for punitive damages.3 Plaintiffs’ response is similar to their fraud argument, that is, that GTLC deliberately misrepresented the float trip as safe and leisurely.
3 Tauck has also moved for summary judgment in its favor on the punitive damages issue. The Court, however, has already determined that Tauck is not liable, either directly or vicariously. Accordingly, the Court’s discussion addresses only Plaintiffs’ claim as it applies to GTLC.
The Wyoming Supreme Court has set out the following standard regarding punitive damages:
We have explained that punitive damages “are to be awarded only for conduct involving some element of outrage, similar to that usually found in crime. . . . We have approved punitive damages in circumstances involving outrageous conduct, such as intentional torts, torts involving malice and torts involving willful and wanton misconduct.” Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo. 1986). Willful and wanton misconduct is the intentional doing, [*38] or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. Mayflower Rest. Co. v. Griego, 741 P.2d 1106, 1115 (Wyo. 1987). “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo. 1986) (internal citation omitted).
Cramer v. Powder R. Coal Co., 2009 WY 45, 204 P.3d 974, 979-80 (Wyo. 2009).
Plaintiffs reason as follows:
Defendants here should have communicated the true Snake River conditions to the Plaintiffs rather than misrepresent the conditions and intentionally take the guests who had signed up for a scenic float trip into something knowingly quite different. Defendant’s failure to communicate the details indicates “reckless disregard of the consequences, and under such circumstances and conditions that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability, result in substantial harm to another.” Danculovich [v. Brown], 593 P.2d [187,] 191.
Plaintiffs’ Response to Motion for Summary Judgment on Punitive Damages [*39]
, 11.
Plaintiffs’ contention that GTLC was aware that the float trip was materially more dangerous than previously represented to the tour members is not, as the Court has discussed, reflected in the record. Although it is undisputed that the level and flow of water was increased, and that this increase may heighten the risk of log jams or hide obstructions in the river, there is no evidence suggesting that the character of the river was altered to such an extent that it was willfully reckless to take passengers on the float trip.
The facts of this case are in stark contrast to those cases relied on by the Plaintiffs in which the Wyoming Supreme Court overturned trial courts’ grants of summary judgment in defendants’ favor on punitive damages. For example, the conduct alleged in Danculovich was drunk driving and speeding resulting in the driver losing control of the vehicle and killing the decedent. 593 P.2d at 190. The evidence in that case indicated that the defendant, who was driving the vehicle, had a blood alcohol content of 0.12%. Id. The court described the evidence of speeding as follows:
Radar clock of vehicle at 56 m.p.h. was made at north edge of business district. A witness estimated speed [*40] at 75 m.p.h. at city limits. Another witness estimated speed at 85 m.p.h. when vehicle passed him at point about .4 of mile before place of accident. Accident reconstruction expert estimated speed at place of accident to be minimum of 75 m.p.h. The speed limit within the city limits was 30 m.p.h. and beyond the city limits, 55 m.p.h.
Id. n.3. In Errington v. Zolessi, a treating physician conducted several cystograms of a patient following a laparoscopically assisted vaginal hysterectomy. 9 P.3d 966, 968 (Wyo. 2000). The cystograms initially indicated the presence of a fistula, and later confirmed it, but the doctor told the patient that she was healing normally, albeit slowly. Id. The Wyoming Supreme Court held that there was sufficient evidence that would allow a reasonable jury to find that the physician acted with reckless disregard for the patient’s safety. In either case, it is apparent that simply failing to advise the tour group members of the increased flow of the river does not rise to the level of reckless and willful misconduct. There is no question that the consequences of any negligence committed were devastating. But this Court must evaluate the question of outrageous conduct based on what was known [*41] at the time of the allegedly negligent act, not looking back at events with the benefit of hindsight. This is not to say that this conduct may not constitute simple negligence, but it does not warrant punitive damages.
IT IS ORDERED that Tauck’s Motion for Summary Judgment on Wyoming Recreational Safety Act, Docket No. 87, is DENIED.
IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim of Negligence, Docket No. 81, is GRANTED.
IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Joint Venture, Docket No. 84, is GRANTED.
IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Fraud, Docket No. 90, is GRANTED.
IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim for Punitive and Exemplary Damages, Docket No. 93, is GRANTED.
IT IS FURTHER ORDERED that Grant Teton Lodge Company’s Motion for Summary Judgment on Plaintiffs’ Claims, Docket No. 96, is granted in part and denied in part. Specifically, the motion is DENIED as it relates to application of the Wyoming Recreation Safety Act, and is in all other respects GRANTED.
Dated this day of October, 2009.
/s/ Alan B. [*42] Johnson
ALAN B. JOHNSON
UNITED STATES DISTRICT JUDGE
One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.
Posted: March 12, 2018 Filed under: Assumption of the Risk, Florida, Montana, Release (pre-injury contract not to sue), Triathlon | Tags: affirmative defenses, Black’s Law Dictionary, box, Causation, Check Box, Choice of Law, concurrent tortfeasors, decedent, designated, fault, health care providers, last act, Lawsuit, material fact, medical attention, movant's, necessary to complete, nonmoving party, off-campus, online, printout, registered, Registration, Release, releases, Sanctioning, sole cause, tortfeasor, Triathlon, undis-puted, USA Triathlon, usage, Void, Voidable, waived, willful Leave a commentThis judge was either not going to make a decision or only allow the plaintiff to win. However, the defendants set themselves up to lose by having a check box in the release.
Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557
State: Florida: United States District Court for the Northern District of Florida, Panama City Division
Plaintiff: Brian Moore
Defendant: North America Sports, Inc., USA Triathlon
Plaintiff Claims:
Defendant Defenses: Assumption of the risk, Release
Holding: for the Plaintiff
Year: 2009
Summary
Having a box unchecked on a release sent the case to trial because the judge would not decide if that made the release valid. Having no jurisdiction and venue clause also created an opening, left unresolved on whether Florida or Montana’s law would apply. If Montana’s law, the releases would be void.
Overall, a poorly prepared or thought-out motion and supporting documents that helped the plaintiff more than the defendant left the defendant in a worse position than before they filed the motion.
Facts
The deceased lived in Montana and signed up in Montana to enter a triathlon in Panama City Beach Florida. In the process of signing up, he signed two releases. One for the website and one for the triathlon. The defendant also stated that the deceased signed two more releases upon registering for the event in Florida. The release signed for the website was not a factor in this decision.
During the swim portion of the triathlon the deceased experienced distress and died three days later.
His survivors filed this lawsuit.
Analysis: making sense of the law based on these facts.
The first issue reviewed by the court was the defense of assumption of the risk. The court resolved this issue in favor of the plaintiff in a short paragraph. Whether or not the deceased assumed the risk of his injury is a question for the jury. It cannot be resolved in a Motion for Summary Judgment.
When a participant volunteers to take certain chances, he waives his right to be free from those bodily contacts inherent in the chances taken.” However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible.
The second argument made by the plaintiff was whether or not the USA Triathlon was liable as a sanctioning body. “In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event.” USA Triathlon argued they did not control the event and should be dismissed.
Again, the court stated whether or not USA Triathlon had any control over the event was a question of fact for the jury.
The next issues were the releases. The first issue was what law applied to the releases. There was obviously no jurisdiction and venue clause in the release or because there was an issue of the validity of the release, the court took it upon itself to determine what law applied.
The plaintiff’s argued that Montana’s law should apply. Montana does not allow the use of a release. See Montana Statutes Prohibits Use of a Release.
All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law.
Since this decision, the statute has been amended to allow the use of releases for sport or recreational opportunities. See Montana Recreation Responsibility Act.
However, the court never made a definitive statement as to whose law would be applied to the releases in this situation.
The next issue was a review of the releases signed on-line when the deceased registered for the event. The on-line release required a box to be checked. In the discovery process, the defendant provided a copy of the release signed by the deceased that had a box that was unchecked.
Defendants provide a printout showing an electronic signature. However, in order to properly exe-cute the waiver, the waivers state that the participant must check the box. Defendants fail to pro-vide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.
Again, the court saved this issue for the jury. Somehow the deceased was able to register for the event and leave a box unchecked; consequently, the court found one unchecked box was enough to deny a motion for summary judgment as to the validity of the release.
The defendant then argued that there were two additional releases signed by the deceased that would have stopped the plaintiff’s claims. However, the copies the defendant provided did not have signatures on them.
Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.
This allowed the plaintiff to plead the deceased never signed the documents and the court again through the decision to the jury.
So Now What?
Remember this decision was decided nine years ago. At that time, the law concerning assumption of the risk has changed, and more courts are determining that the risk the plaintiff suffered was inherent in the sport. Therefore, the plaintiff assumed the risk. Whether or not that evolution in the law has occurred in Florida. I have not researched.
I suspect that USA Triathlon now has written agreements with all races it sanctions setting forth the legal requirements of the relationship. Absent an agreement, an industry practice can easily be proven, but not in a motion for summary judgement. A contract outlining the legal responsibilities between the parties can be used in a motion for summary judgment.
Check Boxes in a Release are landmines waiting to explode.
Why do you have boxes to be checked in a release? They do not support a contract, they only support the theory that the unchecked section is not valid or as in this case the entire release is not valid.
It was just stupid not to have your ducks in a row as a defendant when filing or defending motions for summary judgment. Here the defendants looked bad. Their arguments were strong, but they had no proof to support their arguments. For more on how check boxes can void your release see Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.
You can prove the deceased signed a release if you don’t have a copy of the signature on the release, however, to do so you have to be able to prove that your system would not have allowed the deceased to race unless he signed. Nothing like that was introduced for all three of the releases the defense argued the decedent signed.
That does not even take into account novation. The second and third release might have been void because they were not signed for consideration. Only the first release had consideration, a benefit flowing to the decedent, entrance into the race. The decedent was in the race when he signed the second and third release, so there was no new consideration. See Too many contracts can void each other out; two releases signed at different times can render both release’s void.
Two many releases, no contracts between the defendants and this order made the defendants look bad and guaranteed a trial.
Honestly, the decision reads like either a judge, who does not want to make a decision or one that was heavily leaning towards the Plaintiff. At the same time, the defendants made easy for the judge to rule this way. However, there is not much choice, you have to play with the cards the court clerk gives you.
What do you think? Leave a comment.
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Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557
Posted: February 20, 2018 Filed under: Assumption of the Risk, Florida, Legal Case, Release (pre-injury contract not to sue), Triathlon, Uncategorized | Tags: affirmative defenses, Black’s Law Dictionary, box, Causation, Check Box, Choice of Law, concurrent tortfeasors, decedent, designated, fault, health care providers, Jurisdiction, last act, Lawsuit, material fact, medical attention, movant's, necessary to complete, nonmoving party, off-campus, online, printout, registered, Registration, Release, Sanctioning, Sanctioning Body, sole cause, sponsor, Summary judgment, tortfeasor, undisputed, usage, waived, willful Leave a commentMoore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557
Brian Moore, as Personal Representative on behalf of the Estate of Bernard P. Rice, deceased, Plaintiff, vs. North America Sports, Inc., et al., Defendants.
CASE NO. 5:08cv343/RS/MD
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PANAMA CITY DIVISION
2009 U.S. Dist. LEXIS 134557
June 26, 2009, Decided
June 26, 2009, Filed
CORE TERMS: summary judgment, decedent, affirmative defenses, online, registration, fault, box, tortfeasor, choice of law, necessary to complete, sanctioning, registered, printout, Black’s Law Dictionary, last act, material fact, nonmoving party, sole cause, concurrent tortfeasors, health care providers, undisputed, off-campus, designated, causation, lawsuit, movant’s, waived, willful, usage, medical attention
COUNSEL: [*1] For BRIAN MOORE, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASED, Plaintiff: DIANA SANTA MARIA, LEAD ATTORNEY, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASE, FORT LAUDERDALE, FL; DOROTHY CLAY SIMS, LEAD ATTORNEY, LAW OFFICE OF DOROTHY CLAY SIMS ESQ, OCALA, FL; JOEL S PERWIN, LEAD ATTORNEY, JOEL S PERWIN PA – MIAMI FL, MIAMI, FL; JOHN N BOGGS, BOGGS & FISHEL – PANAMA CITY FL, PANAMA CITY, FL.
For NORTH AMERICA SPORTS INC, doing business as WORLD TRIATHLON CORPORATION, doing business as IRONMAN TRIATHLON, doing business as FORD IRONMAN FLORIDA, formerly known as IRONMAN NORTH AMERICA, USA TRIATHLON, A FOREIGN COMPANY, Defendants: JASON BERNARD ONACKI, LEAD ATTORNEY, COLE SCOTT & KISSANE PA – PENSACOLA FL, PENSACOLA, FL; LARRY ARTHUR MATTHEWS, LEAD ATTORNEY, MATTHEWS & HIGGINS LLC, PENSACOLA, FL; SHANE MICHAEL DEAN, DEAN & CAMPER PA – PENSACOLA FL, PENSACOLA, FL.
JUDGES: RICHARD SMOAK, UNITED STATES DISTRICT JUDGE.
OPINION BY: RICHARD SMOAK
OPINION
Order
Before me are Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46); Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79); Plaintiff’s Motion for [*2] Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86); Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125); and Plaintiff’s Motion for Leave to File Reply (Doc. 144).
I. STANDARD OF REVIEW
The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant’s evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere ‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice; there must be enough of a showing that the [*3] jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251, 106 S. Ct. at 2512).
II. FACTS
Decedent, Bernard Rice, registered online in Montana, and participated in the 2006 Ford Ironman Florida Triathlon held in Panama City Beach, Florida on November 4, 2006. Defendant contends that Rice signed numerous waivers to participate in the race; Plaintiff denies that Rice signed any waivers. Decedent experienced distress in the swim course approximately half-way into the second 1.2 mile lap of the 2.4 mile swim course. He received medical attention, but the timing and nature of medical attention are in dispute. Rice died on November 7, 2006.
III. DUTY OWED TO PLAINTIFF
a. Assumption of Risk
Defendants contend that Rice voluntarily assumed the risk of participating in the 2006 Ford Ironman Florida Triathlon. “When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.” Kuehner v. Green, 436 So. 2d 78, 80 (Fla. 1983). However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible. Id; O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. Dist. Ct. App. 1982). Therefore, summary judgment is not appropriate on this issue.
b. Sanctioning Body
Defendant [*4] USA Triathlon argues that it had no duty as the sanctioning organization of the 2006 Ford Ironman Florida Triathlon. Defendants cite authority from Illinois, Massachusetts, and New York. In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event. See Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86 (Fla. 200) (university had duty to graduate student placed in specific off-campus internship which it knew to be unreasonably dangerous); D’Attilio v. Fifth Avenue Business Ass’n, Inc., 710 So.2d 117 (Fla. Dist. Ct. App. 1998) (the party with control over land owes a duty, jury question whether defendant that coordinated and sponsored a fair on city streets, where city controlled amount of law enforcement, had a duty); Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (Principal and teacher had a duty to injured student because had the authority to control activities of school club even at a meeting held off-campus); Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999) (camp sponsor could be found negligent for falling to tell lifeguard camper suffered from seizures). It is a question of fact for the jury whether Defendant USA Triathlon had sufficient control over the 2006 Ford Ironman Florida Triathlon because of its sanction of the event to have a duty to the participants. Summary judgment is not appropriate.
IV. WAIVERS
Defendant moves for summary judgment based on [*5] the waivers decedent allegedly executed. Plaintiff moves for summary judgment on Defendants’ third and fourth affirmative defenses which read as follows.
THIRD AFFIRMATIVE DEFENSE
53. On November 6, 2005, and prior to Plaintiff’s claim in this action accruing, Decedent waived any and all claims against USAT and NA Sports. A copy of the waiver is attached as Exhibit “A.” Decedent also entered two additional waivers during race registration. Unsigned copies of the waivers entered by Decedent are attached as Exhibits “B” (although designated as a 2007 waiver, it is otherwise the same as the 2006 waiver executed by Decedent) and “C.” By entering these waivers, Decedent waived the Plaintiff’s ability to bring the claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).
FOURTH AFFIRMATIVE DEFENSE
54. On November 6, 2005, and prior to accrual of Plaintiff’s claims in this action, Decedent entered a release of any and all claims against USAT and NA Sports relating to the 2006 Ford Ironman Triathlon. A copy of the release is attached as Exhibit “A.” Decedent also entered two additional releases during race registration. Unsigned copies of the releases entered by Decedent are attached as Exhibits “B” (although [*6] designated as a 2007 release, it is otherwise the same as the 2006 release executed by Decedent) and “C.” By entering these releases, Decedent has precluded Plaintiff’s claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).
a. Choice of Law
First, the choice of law governing the waiver must be determined, because the applicable law might not support enforcement of the waiver, which would make the waivers irrelevant. As for the appropriate contract law to apply, the parties agree that Florida choice of law analysis is applicable.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941). Both parties also agree that under Florida law, “lex loci contractus” provides that the laws of the jurisdiction where the contract was executed govern interpretation of the substantive issues regarding the contract. Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d 1089, 1091 (11th Cir. 2004). The determination of where a contract was executed is fact-intensive and requires a determination of “where the last act necessary to complete the contract [was] done.” Id. at 1092-93 (quoting Pastor v. Union Cent. Life Ins. Co., 184 F.Supp.2d 1301, 1305 (S.D. Fla. 2002)). The last act necessary to complete a contract is the offeree’s communication of acceptance to the offeror. Id. (citing Buell v. State, 704 So.2d 552, 555 (Fla. Dist. Ct. App. 1997)). Here, it is undisputed that the last act necessary to complete the contract occurred in Montana.
Plaintiff points to Montana law, which states, “All contracts [*7] which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law. See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1295 (5th Cir. 1972); See Shapiro v. Associated Intern. Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990).
Defendants point to Montana law, which states, “A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” Mont. Code Ann. § 28-3-102 (2007). The race occurred in Florida; therefore, Florida law applies. In Florida, waivers or exculpatory clauses, although not looked upon with favor, are valid and enforceable if the intent to relieve a party of its own negligence is clear and unequivocal. Banfield v. Louis, 589 So.2d 441, 444-45 (Fla. Dist. Ct. App. 1991) (citing L. Luria & Son, Inc. v. Alarmtec Int’l Corp., 384 So.2d 947 (Fla. Dist. Ct. App. 1980); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. Dist. Ct. App. 1982); Middleton v. Lomaskin, 266 So.2d 678 (Fla. Dist. Ct. App. 1972)).
b. Online Waivers
On November 6, 2005, Rice registered online for the 2006 Ford Ironman Florida Triathlon, which includes two waivers. In order to properly execute both waivers, the participant had [*8] to check two separate boxes. While both sides agree that Rice registered himself online, it is in dispute whether the boxes were checked. The first waiver only applies to the active.com website, which advertises various races and allows participants to fill out online registrations. However, the website has nothing to do with the actual race and is not a party to this suit. The second online waiver applies to Defendants. Defendants contend that the online registration could not be completed unless the boxes were checked, but Plaintiff contends that the printout from the online registration provided by Defendants does not contain any checked boxes (or any boxes). Whether the online wavier was properly executed is clearly in dispute.
Defendants provide a printout showing an electronic signature. However, in order to properly execute the waiver, the waivers state that the participant must check the box. Defendants fail to provide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been [*9] warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.
c. Onsite Registration
Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.
V. BAY MEDICAL
Plaintiff moves for dismissal, or summary judgment, on Defendants’ sixth affirmative defense, which alleges that Bay Medical Emergency Medical Services was “the sole cause or contributing cause of the injuries and harm alleged by Plaintiff.” Plaintiff repeats the exact same argument in its Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125). Plaintiff argues that this is not an affirmative defense, but rather is a traditional basis for denying causation, on the ground that another entity was solely at fault. An affirmative [*10] defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true. Black’s Law Dictionary (8th ed. 2004). Defendants contend that Florida Statute § 768.81(3) permits a defendant to apportion fault to a non-party whose negligence contributed to the plaintiff’s injury or death.
The Florida Supreme Court held that “apportion[ing] the loss between initial and subsequent rather than joint or concurrent tortfeasors…cannot be done.” Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla. 1977). Concurrent tortfeasors are two or more tortfeasors whose simultaneous actions cause injury to a third party. Black’s Law Dictionary (8th ed. 2004). Here, Defendants and Bay Medical Emergency Medical Services are not concurrent tortfeasors, because their actions could not have occurred simultaneously. Florida law clearly states:
“[O]riginal tortfeasor is liable to victim not only for original injuries received as result of initial tort, but also for additional or aggravated injuries resulting from subsequent negligence of health care providers, even though original tortfeasor and subsequently negligent health care providers are independent tortfeasors. Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999).
Therefore, Defendants’ sixth affirmative defense is dismissed. [*11] Defendants are not entitled to include Bay Medical Emergency Medical Services on the verdict form for the jury’s consideration, but Defendants are permitted to argue that Bay Medical Emergency Medical Services were the sole cause of the injuries and harm alleged by Plaintiff as it relates to causation.
VI. CONCLUSION
IT IS ORDERED:
1. Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46) is denied.
2. Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79) is denied.
3. Plaintiff’s Motion for Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86) is granted.
4. Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125) is denied as moot.
5. Plaintiff’s Motion for Leave to File Reply (Doc. 144) is denied as moot.
ORDERED on June 26, 2009.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE
Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.
Posted: April 3, 2017 Filed under: Jurisdiction and Venue (Forum Selection), Release (pre-injury contract not to sue), Skiing / Snow Boarding, Vermont | Tags: Amateur Racing, Choice of Law, Click Wrap Agreements. Nexus, Electronic Click Wrap Agreements, Jurisdiction, Jurisdiction and Venue (Forum Selection), Legal Relationship, Okemo, Ski Racing, United States Ski Association, USSA, Venue, Vermont Leave a commentThis is not the first decision I’ve read where the United States Ski Association (USSA) had its release laughed out of court. The court found ZERO legal arguments for the jurisdiction and venue clause in the release used.
Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011
State: Vermont, United States District Court for the District of Vermont
Plaintiff: Brian J Tierney
Defendant: Okemo Limited Liability Company, d/b/a Okemo Mountain Resort, and The United States Ski and Snowboard Association,
Plaintiff Claims: alleging negligent installation of safety netting during a downhill alpine ski race
Defendant Defenses: Release
Holding: for the plaintiff
Year: 2016
The United States Ski Association (USSA) has members sign a release online before they can participate in any USSA as a ski race. Ski areas rely on this release when holding USSA sanctioned races. The USSA release, however, is a poorly written document and time after time the ski areas, and the USSA lose a lawsuit by a plaintiff because they relied on the USSA release.
The number-one reason why the USSA as a release is thrown out by the courts is the jurisdiction and venue clause. Jurisdiction is the law that will be applied case and venue is the actual location of where the trial will be held. The USSA release says the jurisdiction for any case is Colorado. The problem is unless the accident occurred in Colorado; no other relationship exists between Colorado and the parties to the lawsuit.
The USSA is based, located, in Utah. In this case, the defendant ski area was located in Vermont. There were zero relationships between the USSA in Utah the ski area in Vermont and the injured plaintiff who was from New York, and the state of Colorado.
Consequently, the court throughout the jurisdiction and venue clause and found as 99% of most courts would that the location of the lawsuit should be Vermont, the place where the accident happened.
Vermont, however, does not recognize releases. (See States that do not Support the Use of a Release.).
The plaintiff argued the release was invalid because a copy with his signature could not be produced. The plaintiff signed and agreed to the documentation, including the release when he became a member of the USSA. The plaintiff argued in court that he did not remember signing or agreeing to the release. However, the USSA could show through their IT expert the only way that the plaintiff could have become a member of the USSA was by signing the release. You either had to click on and accept the release, or you could go no further in signing up to be a member of the USSA.
The plaintiff was injured while competing in amateur downhill ski race at the defendant ski area at Okemo Mountain resort. The USSA sanctioned the race. To be eligible to participate in the race a person had to be a USSA member, had to have conducted a visual inspection of course, and had to have taken at least two official training runs prior to the race.
The defendant filed a motion for summary judgment based on the release. This ruling denied the motion for summary judgment.
Analysis: making sense of the law based on these facts.
The court first commented on the jurisdiction and venue issue.
The release also contained a choice-of-law provision, which stated that it would be “construed in accordance with, and governed by the substantive laws of the State of Colorado, without reference to principles governing choice or conflict of laws.”
The court then went through the various arguments of the plaintiff and defendant concerning the motion to dismiss, first off, with the plaintiff’s argument that he never remembered signing the release could not have signed release. The court termed the online release as a clip wrap release. This means that the release could not have been rejected by the plaintiff because the website only allows you to go forward after clicking yes to the release.
Because the click-wrap technology does not permit the customer to continue to use the website, unless he or she clicks on the required box on the screen, courts have accepted proof of use at the site as evidence of the customer’s agreement.
The court stated that generally clip wrap releases are upheld. The court went through several different decisions where clip-wrap releases had been decided. The court concluded that the plaintiff had to have signed the release because the plaintiff admitted that he had been charged for his USSA membership on his credit card and received an email about his membership from the USSA. “Plaintiff admits that he received a confirmation email from USSA and that his credit card statement reflects a payment for his USSA membership.”
The court then went into the choice of law clause. That means the jurisdiction and venue clause. A choice of law clause is not a clause that is controlled strictly by the contract.
Whenever there is a decision based on what law shall apply the law where the accident happened or where the court is sitting is the law that is applied to determine what law will apply. In many cases, such as this one, the choice of law decision leans toward granting the choice of law to the place where the test is being determined.
“The validity of a contractual choice-of-law clause is a threshold question that must be decided not under the law specified in the clause, but under the relevant forum’s choice-of-law rules governing the effectiveness of such clauses.” As this is a diversity action, the court looks to Vermont’s choice-of-law rules to determine which law applies.
A jurisdiction and venue clause is also not solely determined based on the four corners of the document. Meaning, just because you have a jurisdiction and venue clause in the document does not mean that is what is going to be upheld by the court. Here the court applied the choice of laws test as set forth in Vermont to determine what law should apply in governing where the suit in the law to be applied is suit to take place.
Simply put the court found there was no relationship between the choice of law clause in the release and the parties or where the accident occurred. The test for what choice of law applies a substantial relationship test. That means that the law that should be applied should be the one that has the greatest relationship to the parties and or the location of the incident giving rise to the lawsuit. In this case the court found, there was no relationship to the parties of the transaction. Plaintiff was a resident of New York the USSA was a Utah corporation, and the defendant ski area was a defendant was a Vermont location.
The arguments made by the USSA as an aid to justify Colorado’s choice of law clause were just plain weak. They argued that the majority of their races occurred in Colorado and that there was a good chance that the plaintiff would race in Colorado. The court found neither of those arguments to be persuasive.
The chosen state of Colorado has no “substantial relationship” to the parties or the transaction. Plaintiff is a resident of New York. USSA is a Utah corporation and Okemo is a Vermont entity. The incident in question did not occur in Colorado. The only facts Defendants have offered in sup-port of applying Colorado law to this case are: (1) Colorado is home to more USSA member clubs than any other state and hosts the majority of USSA’s major events, and (2) there was a possibility that Plaintiff could have competed in Colorado at some point during the relevant ski season. The court finds that such a tenuous and hypothetical connection does not vest in the state of Colorado a substantial relationship to the parties or specific transaction at issue in this case.
The court did find that Vermont had a substantial and significant interest in the transaction. The defendant was based in Vermont. The accident occurred in Vermont. The plaintiff was issued a lift ticket by the defendant ski area that required all disputes to be litigated in Vermont. The plaintiff participated in the inspection and training runs as well as the race in Vermont.
In contrast, Vermont’s relationship to the parties and transaction is significant. Okemo is a Vermont corporation, the competition was held in Vermont, Plaintiff was issued a lift ticket by Okemo requiring all disputes to be litigated in Vermont, Plaintiff participated in inspection and training runs in Vermont, and Plaintiff’s injury occurred in Vermont.
(Of note is the fact the court looked at the writing on the lift ticket as a quasi-contract. Rarely are lift tickets anything more than simple “signs” providing warnings rather than contracts or quasi contracts. See Lift tickets are not contracts and rarely work as a release in most states.)
The court then took apart the choice of law provision in the USSA release. It found no substantial relationship of the parties to the transaction in Colorado. The minimal facts offered by the USSA to support Colorado did not establish a reasonable basis for choosing Colorado.
The court also reasoned that finding Colorado as the applicable choice of law would violate a fundamental policy of Vermont law, which is releases for skiing or void under Vermont law.
First, applying Colorado law would undoubtedly produce a result contrary to a fundamental policy of Vermont. Whereas exculpatory clauses in ski contracts have been held to be enforceable under Colorado law, courts applying Vermont law consistently hold such re-leases to be void as contrary to important public policies of the state.
The court also found the Vermont had a materially greater interest in case then Colorado. Colorado’s interest in the case is minimal. Vermont had a great interest in applying Vermont law to issues, transactions and accidents that occur in Vermont. Skiing is a significant and important recreational activity in Vermont, and the Vermont Supreme Court has repeatedly stated that they have a significant interest in holding ski resorts responsible for skier safety in Vermont.
Second, Vermont has a “materially greater interest” than Colorado in the determination of this issue.4 Colorado’s interest in this case is minimal. The fact that Plaintiff may have competed there in the course of the relevant ski season and that USSA hosts many events in that state does not create a significant interest in a case concerning a Vermont ski race. Conversely, Vermont’s interest is plain. Vermont has a general interest in having its laws apply to contracts governing transactions taking place within the state. Vermont also has a significant interest in the conduct at issue here. Skiing is an important recreational activity for Vermonters and those visiting the state, and the Vermont Supreme Court has repeatedly noted its interest in holding ski resorts responsible for skier safety.
The court then held the choice of law provision in the USSA release did not control, and the Vermont law would apply to this case.
Under Vermont law releases for skiing activities are unenforceable. (See Federal court voids release in Vermont based on Vermont’s unique view of release law). The Vermont Supreme Court had determined that it was a violation of public policy under Vermont law to allow ski area to use a release to avoid liability for its own negligence. The court used a totality of the circumstances test to make the determination that the ski areas had the greater responsibility and the greater ability to keep its patrons out of harm’s way.
The Court concluded that “ultimately the 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.” It then went on to make its public policy determination largely on the basis of two factors derived from the seminal case of Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963): (1) ski areas are open to the general public without regard to special training or ability, and (2) the longstanding rule that premises owners are in the best position to assure for the safety of their visitors.
(Using Tunkl to void a release seems to be an extremely odd reading of Tunkl. The Tunkl decision is a California case setting forth requirements for Assumption of the Risk.)
The court also looked at the difference between skiing in Vermont participating in a ski race. Here too though, the Vermont Supreme Court already ruled. The Vermont Supreme Court found that there was really no difference between ski racing and skiing in Vermont, and the releases would be void in both cases.
There had been Vermont decisions upholding release law based on restricted access to the race or because total control for the majority the control for the welfare of the racers was in the racer’s hands. These decisions concerned motorcycle racing.
The defendant argued that ski racing was much like motorcycle racing in Vermont. However, the court found that although membership in the motorcycle racing was restricted, it was not restricted in the ski racing case. Any person could become a member of the USSA, and any person could race, as long as they inspected the course and made two runs and. That effectively was not a bar to anyone participating in the race.
The Court saw “no salient distinctions between [its case] and making clear that, under Vermont law, ski areas and sport event organizers will not be absolved from liability by virtue of an exculpatory clause even in the context of amateur racing.
The court in evaluating the release law and ski areas in Vermont determined that the cases were based on a premise’s liability argument. Premise’s liability says that the owner of the land has a duty to inform guests of the risks on the land. This responsibility included eliminating any known risks or risk the by the landowner should discover. It did not find in the motorcycle cases that a premise’s liability relationship existed because the risk was largely in control of the racer on the motorcycle.
Consequently, the court ruled that the release was invalid under Vermont law, and dismissed the defendant’s motion for summary judgment.
So Now What?
I suspect that USSA wanted to take advantage of the Colorado Statute that allows a parent to sign away a minor’s right to sue: Colorado Revised Statutes 13-22-107. Colorado’s release law is clearer and there is no issue with a release stopping suits by ski areas. Utah has mixed issues with releases and ski areas. However, to use Colorado as the site of the lawsuit, there must be a nexus to the state of Colorado, not just one created on paper.
Not only must the language stating the jurisdiction and venue be correct; the clause must also contain the reasoning why the jurisdiction and venue should be in a location other than location where the accident happened. In this case that would mean that there was an agreement between the parties that outlined all the reasons why the lawsuit should be brought back to Utah would be the only state, based on the contractual law of Utah.
I doubt there is any way that you could really write a release based on the law of a state that had no relationship, no nexus, to the accident or the parties in the case.
Vermont was the obvious answer, and that is what the court found. They might’ve been able also argued New York law, which would’ve been better than Vermont law. However, that would require them to litigate a case wherever the people who are racing in their events are located.
To be effective the jurisdiction and venue claw must have a nexus to either the parties in the case of the place of the accident occurred. USSA could move to Colorado, and that would provide a much better argument that Colorado law could apply. The USSA could argue that since they’re facing litigation from across the United States that they need to have one law apply to their releases and lawsuits, and that law should be the law where the located.
Whenever you’re stretching the jurisdiction and venue clause, you need to make sure that you incorporate in the clause all the legal reasons for picking the venue where the clause says the accident or location will occur. You just can’t state venue, and jurisdiction will be here.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011
Posted: March 30, 2017 Filed under: Legal Case, Ski Area, Skiing / Snow Boarding, Vermont | Tags: Amateur Racing, Choice of Law, Click Wrap Agreements. Nexus, Electronic Click Wrap Agreements, Jurisdiction, Jurisdiction and Venue (Forum Selection), Legal Relationship, Okemo, Ski Racing, United States Ski Association, USSA, Venue, Vermont Leave a commentKearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011