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Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

Alexis Wiemer, Plaintiff, v. Hoosier Heights Indoor Climbing Facility LLC, Defendant.

Case No. 1:16-cv-01383-TWP-MJD

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION

2017 U.S. Dist. LEXIS 149663

September 15, 2017, Decided

September 15, 2017, Filed

COUNSEL: [*1] For ALEXIS WIEMER, Plaintiff: Mary Beth Ramey, Richard D. Hailey, RAMEY – HAILEY, Indianapolis, IN.

For HOOSIER HEIGHTS INDOOR CLIMBING FACILITY LLC, Defendant: Jessica Whelan, Phil L. Isenbarger, BINGHAM GREENEBAUM DOLL LLP, Indianapolis, IN.

JUDGES: TANYA WALTON PRATT, United States District Judge.

OPINION BY: TANYA WALTON PRATT

OPINION

ENTRY ON SUMMARY JUDGMENT

This matter is before the Court on Defendant Hoosier Heights Indoor Climbing Facility LLC’s (“Hoosier Heights”) Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 (Filing No. 29). Plaintiff Alexis Wiemer (“Wiemer”) brought this action against Hoosier Heights for personal injuries sustained when he fell during a rock climbing activity. For the following reasons, the Court GRANTS Hoosier Heights’ Motion for Summary Judgment.

I. BACKGROUND

The material facts are not in dispute and are viewed in a light most favorable to Wiemer as the non-moving party. See Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 728 (7th Cir. 2011).

Hoosier Heights, located in Carmel, Indiana, is a limited liability company which owns and operates an indoor rock climbing facility. The facility is open to the public and is available for individuals of all skill levels in recreational climbing. In order to use the facilities, Hoosier Heights requires all patrons [*2] to sign and acknowledge having read and understood a “Waiver & Release of Liability” form (“Waiver”). (Filing No. 30-1.) The Waiver contains: general gym rules, exculpatory clauses relieving Hoosier Heights of liability, a medical authorization clause, an acknowledgement that the participant understands there are inherent risks to rock climbing with some risks listed, authorization to allow the Hoosier Heights’ staff to use any photographs taken during the patron’s visit for promotional materials, and a signature line for the participant. (Filing No. 30-1 at 1.) At the top of the Waiver is Hoosier Heights’ logo, address, and the name Hoosier Heights Indoor Climbing.

The Waiver states, in relevant part:

RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto, I, for myself, my heirs, my estate and personal representative, do hereby release and discharge Hoosier Heights Indoor Rock Climbing Facility L.L.C. (hereinafter referred to as “Hoosier Heights”) from any and all liability for injury that may result from my [*3] use of the facilities of Hoosier Heights Indoor Climbing, and I do hereby waive and relinquish any and all actions or causes of action for personal injury, property damage or wrongful death occurring to myself arising as a result of the use of the facilities of Hoosier Heights or any activities incidental thereto, wherever or however such personal injury, property damage, or wrongful death may occur, whether foreseen or unforeseen, and for whatever period said activities may continue. I agree that under no circumstances will I, my heirs, my estate or my personal representative present any claim for personal injury, property damage or wrongful death against Hoosier Heights or its employees, members, directors, officers, agents and assigns for any of said causes of actions, whether said causes of action shall arise by the negligence of any said person or otherwise.

It is the intention of the undersigned individual to exempt and relieve Hoosier Heights and its employees, members, directors, officers, agents and assigns from liability for any personal injury, property damage or wrongful death caused by negligence.

(Filing No. 30-1.) The Waiver also contained a provision enumerating the risks [*4] inherent in the sport of rock climbing:

ACKNOWLEDGMENT: I, the undersigned, acknowledge that I understand that there are significant elements of risk associated with the sport of rock climbing, including those activities that take place indoors. In addition, I realize those risks also pertain to related activities such as bouldering, incidental weight training, team building, fitness training regimens and equipment purchased or rented at Hoosier Heights. I realize that those risks may include, but are not limited to, injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facilities. I acknowledge and understand that the above list is not inclusive of all possible risks associated with rock climbing or the use of the Hoosier Heights facilities and that other unknown and unanticipated risks may result in injury, illness, paralysis, or death.

Id. In addition to executing the Waiver, Hoosier Heights requires that all patrons attend and acknowledge undergoing orientation and training.

Wiemer visited Hoosier Heights in October 2014. On that date, he attended [*5] a facility orientation, which is an employee-guided training on how to boulder, belay, and top rope climb.1 (Filing No. 30-7.) If a customer intends to use the “top rope” climbing area of the facility, they must first complete the “top rope” orientation and initial and sign the facility orientation form in the appropriate locations. Following his orientation and training, Wiemer signed a Waiver form.

1 Top rope climbing is a style of climbing in which a rope runs from a belayer at the foot of the climbing wall which is connected to an anchor system at the top of the wall and back down to the climber. Both climber and the belayer are attached to the rope through a harness and carabiner. The belayer is responsible for pulling the slack in the rope, which results in the climber moving up the wall. The belayer must keep the rope tight so that, in the event the climber releases from the wall, the climber remains suspended in the air and does not fall.

Kayli Mellencamp (“Mellencamp”), a part-time Hoosier Heights employee with very little rock climbing experience, provided Wiemer’s orientation and training. (Filing No. 30-6.) Mellencamp’s employee training consisted solely of reviewing company provided instructional books on rock climbing and witnessing other employee orientations. (Filing No. 67-2 at 10-11 and 13-14.) Mellencamp had no other professional rock climbing experience.

On January 14, 2015, Wiemer, along with several co-workers, including Robert Magnus (“Magnus”), traveled to Hoosier Heights for recreational rock climbing. Magnus had also previously visited Hoosier Heights, and Wiemer’s and Magnus’ Waivers were already on file and under the terms of their agreements remained in effect (Filing No. 30-6; Filing No. 30-7). Wiemer [*6] was top rope climbing while Magnus belayed below (Filing No. 30-4). Unfortunately, Wiemer fell while he was climbing. Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. (Filing No. 30-4 at 1-4.) As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations.

II. LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable [*7] inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). “[N]either the mere existence of some alleged factual dispute between the parties . . . nor the existence of some metaphysical doubt as to the material facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted). “It is equally well settled, however, that where no factual disputes are present or where the undisputed facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in favor of that party is entirely appropriate. Collins v. American Optometric Ass’n, 693 F.2d 636, 639 (7th Cir. 1982).

III. DISCUSSION

Hoosier Heights contends that Wiemer’s signing of the Waiver, which contained an explicit reference waiving liability [*8] for Hoosier Heights’ own negligence, absolves it of any liability and Wiemer expressly acknowledged that falling was a risk inherent in indoor rock climbing. Wiemer responds with two arguments in the alternative. First, he argues that the Waiver misidentifies the released party as “Hoosier Heights Indoor Rock Climbing Facility” because the Defendant’s name, as alleged in the Complaint and as evidenced by the Indiana Secretary of State Certificate of Assumed Business Name, is “Hoosier Heights Indoor Climbing Facility.” (Filing No. 67-4.) Second, Wiemer argues that Hoosier Heights negligence in the hiring and training of Mellencamp, was not an included “inherent risk” and this significantly contributed to his fall and injury.

A. Hoosier Heights’ Business Name

The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C.’ (Filing No. 30-1 at 1). Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material [*9] fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy creates ambiguity as to who Wiemer contracted with.

The Court is not persuaded by Wiemer’s argument. “Release documents shall be interpreted in the same manner as any other contract document, with the intention of the parties regarding the purpose of the document governing.” Huffman v. Monroe County Community School Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). “The meaning of a contract is to be determined from an examination of all of its provisions, not from a consideration of individual words, phrases, or even paragraphs read alone.” Huffman, 588 N.E.2d at 1267. In addition, when a contract is unambiguous, Indiana courts look to the four corners of the document to determine the intentions of the parties. Evan v. Poe & Associates, Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007). This analysis of contract interpretation is a question of law. Evans v. Med. & Prof’l Collection Servs., Inc., 741 N.E.2d 795, 797 (Ind. Ct. App. 2001).

In Evans, the Indiana Court of Appeals held that a contract was unambiguous that misidentified a business name in the agreement but included the relevant address as that of the business. Evans, 741 N.E.2d at 798. The Evans court found that the plaintiff could not recover payment from the owner, “Evans Ford,” in his personal capacity, even though that was the name indicated in the contract and the actual business [*10] was organized as a corporation under the name of “Evans Lincoln Mercury Ford, Inc.” Id. at 796-98. The court did not resort to extrinsic evidence because the contract unambiguously identified the parties despite the misidentification. See id. at 798.

In this case, the Waiver is unambiguous as to identifying the parties to the agreement. Although the language of the Release and Assumption of Risk paragraph identifies “Hoosier Heights Indoor Rock Climbing Facility,” the document’s letterhead at the top displays “Hoosier Heights Indoor Climbing,” and includes the relevant business address of Hoosier Heights where Wiemer visited. Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.

B. Negligent Training

Hoosier Heights contends that summary judgment is appropriate because the Waiver’s explicit references to the “inherent risks” of rock climbing creates a binding exculpatory clause which releases Hoosier Heights from liability. Wiemer argues that a genuine issue of material fact exists [*11] regarding whether improper instruction and inadequate training, is an “inherent risk” of indoor rock climbing.

Under Indiana law, waivers containing exculpatory clauses absolving parties of liability for their own negligence must be specific and explicitly refer to waiving that party’s negligence. Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576, 584 (Ind. Ct. App. 2006). Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.” Id. (citing Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999)).

Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume (Filing No. 67 at 10). Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing. Id. Hoosier Heights responds that falls, as indicated by the Waiver, are a specific risk inherent in the nature of rock climbing and that Wiemer specifically waived any claims to injuries from falls by signing the Waiver (Filing No. 68 at 14). Hoosier Heights also contends that Wiemer waived any claims for improper training and instruction [*12] by its’ employees as the Waiver contains an explicit release of Hoosier Heights’ employees for any negligence. Id. at 12.

Hoosier Heights acknowledges that negligence is generally a fact-intensive question; however, it responds that it is entitled to summary judgment because Wiemer waived any claims for liability on the basis of negligence. Id. at 11. Hoosier Heights points the Court to Anderson v. Four Seasons Equestrian Center. In Anderson, the Indiana Court of Appeals held that the defendant, an equine center, was entitled to summary judgment even though the waiver at issue did not contain a specific and explicit release of the equine center due to its own negligence because the plaintiff’s injury of falling while mounting her horse was a risk inherent in the nature of the activity of horse riding. Anderson, 852 N.E.2d at 581. The plaintiff argued that her injury was due to the equine center’s negligence in caring for, conditioning, and training her horse. The court found that the plaintiff’s injury and resulting damages, including her characterization of the cause of those damages (i.e. conditioning and training of her horse), were risks that were inherent in the nature of horse riding and were exactly those for [*13] which she granted the equine center a release of liability by signing the waiver. Id. at 585.

In the present case, Wiemer signed a specific and explicit Waiver, which released Hoosier Heights from liability due to its own negligence. The Waiver explained that “rock climbing activity” at Hoosier Heights included, among other things,

…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…. I understand that the above list is not inclusive of all possible risks associated with rock climbing.

(Filing No. 30-6 at 1). In addition, a very similarly worded reference to liability from their own negligence is contained in the second paragraph of the ‘Release and Assumption of Risk’ section which states, “It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.” (Filing No. 30-1 at 1.) The direct mentions [*14] of Hoosier Heights’ own negligence adheres to the holding set in Powell that an exculpatory clause needs to be specific and explicit in referencing an absolving party’s liability from negligence.

Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver. Accordingly, summary judgment is appropriate.

IV. CONCLUSION

For the reasons stated above, the Court determines that, based on the undisputed material facts, Hoosier Heights is entitled to summary judgment as a matter of law. Hoosier Heights’ Motion for Summary Judgment (Filing No. 29) is GRANTED, and Wiemer’s Complaint is DISMISSED. Final Judgment will issue under a separate order.

SO ORDERED.

Date: 9/15/2017

/s/ Tanya Walton Pratt

TANYA WALTON PRATT, JUDGE

United States District Court

Southern District of Indiana

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What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire, you have no coverage.

You either have to create an absolutely fool proof system or take your release
online. If they don’t sign they don’t climb!

Colony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d
399; 2009 N.H. LEXIS 51

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Colony Insurance Company

Defendant: Dover Indoor Climbing Gym& a.

Plaintiff Claims: There was no insurance coverage because the insured did not get a release signed by the injured claimant

Defendant Defenses: The insurance policy endorsement requiring a release to be signed was ambiguous

Holding: For the Plaintiff Insurance Company

Year: 2009

This is a scary case, yet the outcome is correct. The plaintiff insurance company issued a policy to the defendant climbing gym. An endorsement (an added amendment to the contract) to the policy said there would only be coverage if the gym all customers sign a release.

 An endorsement to the policy stated: “All ‘participants’ shall be required to sign a waiver or release of liability in
your favor prior to engaging in any ‘climbing activity.’ “It further stated: “Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you.”

A climber came to the gym with a group of friends. The gym asked everyone if they had a release on file, and no one said no. (Yes really stupid procedures!) Bigelow was part of the group and did not have a release on file and had not signed a release. While climbing Bigelow fell and was injured.

Bigelow accompanied friends to the climbing gym, but did not sign a waiver. He testified that he was never asked to sign a waiver; the gym owner’s affidavit stated that the owner asked the group of climbers if they had waivers on file and received no negative answers. It is undisputed; however, that Bigelow did not sign a waiver or release. While climbing, Bigelow fell and sustained serious injuries.

The defendant climbing gym put the plaintiff insurance company on notice of the claim. When the insurance company found out no release was signed, the insurance company filed a declaratory judgment motion. A declaratory judgment is a way to go into a court and say there is no coverage under this policy because there was no release. It is an attempt to be a quick interpretation of the contract so the bigger issue can be resolved quickly.

The gym then put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that the gym’s failure to obtain a release from Bigelow absolved Colony of any duty to defend or indemnify the gym.

Both parties filed motions for summary judgment. The trial court granted the climbing gym’s motion for summary judgment saying the endorsement requiring the signed release was ambiguous. The ambiguity was created because the insurance company had not provided the gym with a sample waiver to use.

The trial court found that Colony’s failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. The trial court therefore denied Colony’s motion for summary judgment, and granted the defendants’ cross-motion for summary judgment. 

This analysis by the court was absurd. Releases need to be written for the gym, for the gym’s clients and for the state law of the state where it is to be used. A “sample” release is a guaranteed loser in most cases. However, I suspect the court was looking for anyway it could find to provide coverage for the gym.

The trial court’s ruling meant the plaintiff insurance company had to provide coverage to the defendant for any claims made by the injured climber Bigelow.

The insurance company appealed the decision. New Hampshire does not have an intermediary appellate court system so the appeal went to the New Hampshire Supreme Court.

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

Insurance policies are contracts and are interpreted as such. However, because have been written in a specific way and are always offered on a take it or leave it basis, as well as the fact the insurance company has all the cards (money) insurance policies have additional legal interpretations in addition to contract law.

The New Hampshire Supreme Court started its analysis by looking at how insurance policies are interpreted. That means the policy is read as a whole objectively. Terms are given their natural meaning, meaning there is no special interpretation of any term, and if the policy is clear and unambiguous is it enforced. No special reading of the policy is allowed based on any party to the policy’s expectations.

We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, we accord the language its natural and ordinary meaning. We need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, our search for the parties’ intent is limited to the words of the policy.

The burden of proving that no insurance coverage exists as defined by the policy rests on the insurance company. That means coverage exists under the policy unless the insurance company can prove no coverage was written.

If an insurance company wants to limit its coverage, it is allowed to do so. However, that limitation must be clear and unambiguous. An ambiguity exists if a reasonable disagreement exists between the insurance company and the policyholder and that disagreement could lead to two or more, interpretations.

Although an insurer has a right to contractually limit the extent of its liability, it must do so “through clear and unambiguous policy language. Ambiguity exists if “reasonable disagreement between contracting parties” leads to at least two interpretations of the language. 

Ambiguities will be examined in the appropriate context and the words construed in their plain, ordinary and popular meaning. If the interpretation of the ambiguity favors the policyholder, then the coverage will favor the insured.

In determining whether an ambiguity exists, we will look to the claimed ambiguity, consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. 

If, however, the language in the policy is clear, the court will not bend over backward or as written in this case “perform amazing feats of linguistic gymnastics” to find an ambiguity and create coverage.

Where, however, the policy language is clear, this court “will not perform amazing feats of linguistic gymnastics to find a purported ambiguity” simply to construe the policy against the insurer and create coverage where it is clear that none was intended. 

The court then looked at the determination of the trial court which found an ambiguity because the insurance company did not provide a sample insurance policy. The Supreme Court found that was an incorrect interpretation of the policy. Even the defendant climbing gym agreed with the court on this
issue.

Even the gym, however, contends that the trial court “reached the correct result for the wrong reasons.” Thus, the gym does not argue that the endorsement creates an ambiguity by its failure to provide the insured with a sample waiver form, but, rather, that the exclusionary language is ambiguous because it states that participants shall “be required” to sign waivers as opposed to mandating that the gym obtain signed waivers.  

The court then applied to the law of New Hampshire in interpreting insurance policies to the facts of this case. The court found the language requiring a release was clear and that a reasonable person could only read it.

The clear meaning of the policy language is that the gym is required to actually obtain waivers from climbing participants. The gym’s interpretation would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. The gym’s interpretation is unreasonably narrow, and is therefore not the type of alternative interpretation that renders policy language ambiguous.

Simply put the policy requires the defendant climbing gym to have everyone sign a release. If no release is signed, there was no coverage for the gym. The trial court was overturned, and the climbing gym faced the claims of the injured climber without insurance coverage.

So Now What?

One of the first cases I was involved with was very similar. A Montana stable was insured by an insurance company with an endorsement just as this one; all riders were required to sign a release. In Montana all guides, including horseback guides had to be licensed by the state. A state employee was checking out the
stable and found the releases. In Montana, you cannot use a release. (See States that do not Support the Use of a Release andMontana Statute Prohibits Use of a Release)

The state employee had the stable quit using the release, or they would lose their license to operate in Montana. A rider was injured and sued the stable, and the insurance company denied coverage. I was contacted by the law firm representing the insurance company and was floored by the facts and how the insurance company could deny coverage when it violated state regulations.

However, in that situation as well as this one, there is not much you can do to get around the situation if the policy clearly states you must have a release signed. In the Montana case, the stable owner should have immediately contacted his insurance company when he was told he could not use a release and pay to have the endorsement removed or found another insurance company to write him a policy.

In this case, a proper procedure should have been put in place to confirm signed releases rather than relying on the honesty of someone walking through the doors to the gym.

When you purchase insurance make sure you and your insurance agent are speaking clearly to each other, and you both understand what you are looking for. When the policy arrives, read the policy or pay a professional to read the policy for you looking for the coverage’s you need as well as looking for problems with the coverage.

If you ask the agent or broker to clarify the coverage you are wanting, to make sure you get that clarification in writing (or an email), so you can take that to court if necessary.

Most importantly create a system to make sure that everyone who comes to your facility, activity or business when you use a release, signs a release.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Colony Insurance Company v. Dover Indoor Climbing Gym, 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

Colony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

Colony Insurance Company v. Dover Indoor Climbing Gym & a.

No. 2008-759

SUPREME COURT OF NEW HAMPSHIRE

158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51

March 18, 2009, Argued

April 24, 2009, Opinion Issued

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

1. Insurance–Policies–Construction The interpretation of insurance policy language is a question of law for the court to decide. The court construes the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, the court accords the language its natural and ordinary meaning. The court need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, the court’s search for the parties’ intent is limited to the words of the policy.

2. Insurance–Proceedings–Burden of Proof The burden of proving that no insurance coverage exists rests squarely with the insurer.

3. Insurance–Policies–Ambiguities Although an insurer has a right to contractually limit the extent of its liability, it must do so through clear and unambiguous policy language. Ambiguity exists if reasonable disagreement between contracting parties leads to at least two interpretations of the language. In determining whether an ambiguity exists, the court will look to the claimed ambiguity, consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. Where, however, the policy language is clear, the court will not perform amazing feats of linguistic gymnastics to find a purported ambiguity simply to construe the policy against the insurer and create coverage where it is clear that none was intended.

4. Insurance–Policies–Construction When a climbing gym’s insurance policy stated, “All participants shall be required to sign a waiver or release of liability in your favor prior to engaging in any climbing activity,” the clear meaning of the policy language was that the gym was required to actually obtain waivers from climbing participants. The gym’s interpretation that a reasonable person would believe that coverage existed so long as the gym had a policy of requiring waivers regardless of whether it actually obtained waivers would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. Because the policy required the gym to obtain waivers from all participants, the failure to do so in the case of an injured climber rendered coverage under the policy inapplicable to his claims.

COUNSEL: Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally), for the plaintiff.

Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and orally), for defendant, Dover Indoor Climbing Gym.

Shaheen & Gordon, P.A., of Dover, for defendant, Richard Bigelow, filed no brief.

JUDGES: DUGGAN, J. BRODERICK, C.J., and DALIANIS, J., concurred.

OPINION BY: DUGGAN

OPINION

[**400]   [*629]  Duggan, J. The plaintiff, Colony Insurance Company (Colony), appeals an order of the Superior Court (McHugh, J.) denying its motion for summary judgment and granting that of the defendants, Dover Indoor Climbing Gym (the gym) and Richard Bigelow. We reverse and remand.

The trial court found, or the record supports, the following facts. Colony issued a commercial general liability insurance policy to the gym, which was in effect from January 5, 2007, to January 5, 2008. An endorsement to the policy stated: “All ‘participants’ shall be required to sign a waiver or release of liability in your favor prior to engaging in any ‘climbing activity.’ ” It further stated: “Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you.”

On August 14, 2007,  [***2] Bigelow accompanied friends to the climbing gym, but did not sign a waiver. He testified that he was never asked to sign a waiver; the gym owner’s affidavit stated that the owner asked the group of climbers if they had waivers on file and received no negative answers. It is undisputed, however, that Bigelow did not sign a waiver or release. While climbing, Bigelow fell and sustained serious injuries. The gym then put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that the gym’s failure to obtain a release from Bigelow absolved Colony of any duty to defend or indemnify the gym.

Both Colony and the defendants filed motions for summary judgment, which the trial court addressed in a written order. The trial court found that Colony’s failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. The trial court therefore denied Colony’s motion for summary judgment, and granted the defendants’ cross-motion  [**401]  for summary judgment. This appeal followed.

[*630]  On appeal, Colony argues that the trial court erred in finding that the endorsement was ambiguous, and contends that the  [***3] gym’s failure to obtain a waiver from Bigelow renders the policy inapplicable as to his claims. Alternatively, Colony argues that even if the endorsement is ambiguous, the gym is not entitled to coverage because it had actual knowledge of the policy’s waiver requirement.

[HN1] In reviewing the trial court’s grant or denial of summary judgment, we consider the evidence, and all inferences properly drawn from it, in the light most favorable to the non-moving party. Everitt v. Gen. Elec. Co., 156 N.H. 202, 208, 932 A.2d 831 (2007); Sintros v. Hamon, 148 N.H. 478, 480, 810 A.2d 553 (2002). If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480. We review the trial court’s application of the law to the facts de novo. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480.

[1]  [HN2] The interpretation of insurance policy language is a question of law for this court to decide. Godbout v. Lloyd’s Ins. Syndicates, 150 N.H. 103, 105, 834 A.2d 360 (2003). We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading  [***4] of the policy as a whole. Id. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, we accord the language its natural and ordinary meaning. Id. We need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, our search for the parties’ intent is limited to the words of the policy. Id.

[2, 3] In this case, the gym argues that the policy is ambiguous and Colony maintains that it is not.  [HN3] The burden of proving that no insurance coverage exists rests squarely with the insurer. Curtis v. Guaranty Trust Life Ins. Co., 132 N.H. 337, 340, 566 A.2d 176 (1989); see RSA 491:22-a (1997).  [HN4] Although an insurer has a right to contractually limit the extent of its liability, it must do so “through clear and unambiguous policy language.” Id. (quotation omitted). Ambiguity exists if “reasonable disagreement between contracting parties” leads to at least two interpretations of the language. Int’l Surplus Lines Ins. Co. v. Mfgs. & Merchants Mut. Ins. Co., 140 N.H. 15, 20, 661 A.2d 1192 (1995); Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 771, 423 A.2d 980 (1980). In determining whether an ambiguity exists, we will look to the claimed ambiguity,  [***5] consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. Int’l Surplus, 140 N.H. at 20. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. Id. Where, however, the policy language is clear, this court “will not  [*631]  perform amazing feats of linguistic gymnastics to find a purported ambiguity” simply to construe the policy against the insurer and create coverage where it is clear that none was intended. Hudson v. Farm Family Mut. Ins. Co., 142 N.H. 144, 147, 697 A.2d 501 (1997); Curtis, 132 N.H. at 342.

The trial court found that the endorsement requiring waivers is ambiguous because Colony did not provide the gym with a sample waiver. Even the gym, however, contends that the trial court “reached the  [**402]  correct result for the wrong reasons.” Thus, the gym does not argue that the endorsement creates an ambiguity by its failure to provide the insured with a sample waiver form, but, rather, that the exclusionary language is ambiguous because it states that participants shall “be required” to sign waivers as opposed to mandating that the gym obtain signed waivers.  [***6] Under this interpretation, the gym argues, a reasonable person would believe that coverage exists so long as the gym has a policy of requiring waivers regardless of whether it actually obtained waivers from climbing participants. Colony argues that the policy language is unambiguous. We agree with Colony.

[4] The clear meaning of the policy language is that the gym is required to actually obtain waivers from climbing participants. The gym’s interpretation would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. The gym’s interpretation is unreasonably narrow, and is therefore not the type of alternative interpretation that renders policy language ambiguous. See Curtis, 132 N.H. at 342 ( [HN5] refusing to find ambiguity when alternate interpretations would “inevitably lead to absurd results”). To construe the exclusion against the insurer here would create coverage where it is clear that none was intended. We therefore conclude that the policy language is unambiguous and that a reasonable insured would understand that the exclusion would  [***7] apply in this case.

Because the policy requires the gym to obtain waivers from all participants, the failure to do so in the case of Bigelow renders coverage under the policy inapplicable to his claims. In light of our holding, we need not address Colony’s remaining argument. We therefore reverse the order of the trial court granting the defendants’ motion for summary judgment, and hold that Colony is entitled to summary judgment as a matter of law.

Reversed and remanded.

Broderick, C.J., and Dalianis, J., concurred.

 


GTHI (TRANGO) Recalls Climbing Belay Devices Due to Fall and Injury Hazards

Vergo belay devices (climbing tool)

Hazard: The handle on the Vergo belay device can loosen and cause the device’s assisted braking capacity to malfunction, posing fall and injury hazards to climbers.

Consumer Contact: Trango email at vergorecall@trango.com, or call 800-860-3653 from 8 a.m. to 4 p.m. MT, Monday through Friday, or online at http://www.trango.com   and click on “Product Alerts” for more information.

Units: About 2,600 (in addition, about 100 were sold in Canada)

Description: This recall involves Trango Vergo belay devices with batch numbers 16159 and 16195 printed on the side of the unit. The devices were sold in blue, gold, or purple and feature the word “VERGO” on the front plate of the unit. Belay devices are used with climbing ropes to protect the climber while climbing, to arrest a fall or while being lowered on the rope.

Incidents/Injuries: The firm has received three reports of the belay device’s handle over-rotating and braking malfunction. No injuries have been reported.

Sold at: Authorized GTHI dealers and outdoor specialty stores nationwide and online at http://www.trango.com from October 2016 through April 2017 for about $90.

Distributor(s):Great Trango Holdings Inc. (GTHI), of Lafayette, Colo.

Manufactured In: United States

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

 

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University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit

Court looks at whether a release will defeat a claim for gross negligence but does not decide the case on that issue. Case is confusing, because court discussed defenses that were not applicable. Plaintiff waived all but the gross negligence claims.

Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940

State: Texas, Court of Appeals

Plaintiff: Rolando Benavidez

Defendant: The University of Texas — Pan American

Plaintiff Claims: failure to properly use the climbing equipment and properly supervise [Benavidez] during the climb, Under the theory of respondeat superior, Benavidez claimed that his injuries were caused by the negligence and gross negligence of UTPA (University of Texas– Pan American), negligent use of tangible personal property in that UTPA breached its “legal duty to [Benavidez] to provide supervision of [Benavidez], use safe equipment with [Benavidez], and to properly secure [Benavidez’s] harness prior to climbing.” negligent use or condition of real property in that UTPA breached its duty to provide a safe climbing wall for Benavidez and failed to use ordinary care to protect Benavidez from an unreasonably dangerous condition. UTPA had subjective awareness of a high degree of risk and acted with “conscious indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.

Defendant Defenses: Release, Recreational Use Statute and the Texas Tort Claims Act

Holding: For the defendant

Year: 2014

The plaintiff was climbing at the university’s climbing wall. He signed a release to climb. On the back of the release was a set of rules about climbing that the plaintiff also had to sign. i.e. Two legal documents on one sheet of paper.

The plaintiff argued the rules on the backside of the agreement were part of the contract. Because the climbing wall had not followed the rules, the release was no longer valid and the defendant had acted negligently and gross negligently.

While climbing the plaintiff reached the top of the wall and was told to lean back while he was lowered. The plaintiff fell 33’ suffering injuries. Based on witness statements of other employees of the wall, it appeared the figure 8 (knot) used to tie the plaintiff’s harness to the rope had been tied incorrectly.

The trial court dismissed the case, awarded costs against the plaintiff based on the Texas Tort Claims Act, and the plaintiff appealed.

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

The court first looked at the Texas Tort Claim Act and its application to the case.

As a governmental unit, UTPA is immune from both suit and liability unless the Tort Claims Act has waived that immunity. Section 101.021 of the Tort Claims Act has been interpreted as waiving sovereign immunity in three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.”

The court then brought in the Texas Recreational Use Statute. Under the Texas Recreational Use Statute, a state landowner (governmental entity) can only be liable for gross negligence.

When injury or death results on state-owned, recreational land, the recreational use statute limits the state’s duty even further to that owed by a landowner to a trespasser, which means that the State only waives immunity for conduct that rises to the level of gross negligence.

The university is state land, and the climbing wall is on the land. It was used for recreation and probably as a student for free, although this was not discussed in the case. Consequently, the Texas Recreational Use Act protected the university from negligence claims.

With the ordinary negligence claims gone, the court turned to the gross negligence claims and looked at the release. Under Texas law to be valid, a release must:

(1) provide fair notice by being conspicuous, and (2) comply with the express negligence doctrine. To be conspicuous, a release must be written, displayed, or presented such that a reasonable person against whom it is to operate ought to have noticed it. A release satisfies the express negligence doctrine if it expresses the intent of the parties to exculpate a party for its own negligence.

The burden is on the defendant, the person relying on the defense of release, to prove the validity of the release and the requirements set forth by the court.

The court then looked at whether the release then barred the claim for gross negligence. The court reviewed several Texas cases; however, the court did not decide whether a release in this situation barred a claim for gross negligence. The court found the gross negligence claim was not raised on the appeal.

For a legal argument to be argued in the court, there are two basic components that must be met before any argument can be made. The argument must be made in the trial court and in many cases an objection to the court’s ruling made. Second the issue must be argued in the statements (pleadings) at the appellate court also. Here, although argued in the trial court the issue was not argued or probably raised at the appellate court.

The court then went back to the release to see if the release was still valid. The plaintiff claimed the defendant violated the release because it failed to follow the rules on the reverse side of the release. Because the rules were on the document called the release the plaintiff argued they were part of the release. Those rules set forth how the climbers and allegedly the gym was supposed to act. One of the rules required all knots to be checked by specific persons at the gym, which was not done in this case, and allegedly not done at all until after the plaintiff’s injury.

Arguing the rules and release were one document, the plaintiff stated the failure to follow the rules was a material breach of the contract. A material breach or avoidance of the contract voids it.

Under Texas law, a release is a contract and is subject to avoidance just like any other contract. When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. This court is bound to read all parts of a contract together to ascertain the agreement of the parties. The contract must be considered as a whole. Moreover, each part of the contract should be given full effect.

A prior material breach one that occurs before the execution of the contract discharges the parties from the contractual obligations. “Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract.”

Execution of the contract means the contract by its terms has not been completed. Meaning there is part so the contract that have not been complied with by one or more parties. Here the failure of the gym to check the plaintiff’s knot was prior to the climbing of the plaintiff. “Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract.”

Under Texas law for a court to determine if a prior material breach to occur the court must determine the following:

(1) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

(2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

(3) the extent to which the party failing to perform or to offer performance will suffer forfeiture;

(4) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; and

(5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

This court also examined whether or not checking the knot was a condition precedent. A condition precedent requires one thing to occur before the rest of the contract must be done.

Alternatively, a condition precedent is an event that must occur or act that must be per-formed before rights can accrue to enforce an obligation. Ordinarily, terms such as “if,” “provided that,” “on condition that,” or similar conditional language indicate the intent to create a condition precedent. Conditions precedent, which can cause forfeiture of a contractual right, are not favored under the law, and we will not construe a contract provision as a condition precedent unless we are compelled to do so by language that may be construed in no other way.

However, the court found that the language of the safety rules did not relate to the language of the release. The safety rules, overall, were simply rules the plaintiff was to follow and was not part of the contract. “…the safety policy’s side of the document, by its clear language, does not indicate that UTPA promised to comply with the policies or that compliance with the policies by UTPA…

However, reading the safety policies document as a whole, we find that the language of the agreement placed the sole responsibility on the climber to ensure that the procedures in the safety polices were followed.

Because we find that, by its clear language, the waiver and release form did not express the intent of either party to condition the release from liability on any performance by UTPA and did not include a promise by UTPA to follow the safety policies as consideration for the contract, we conclude that UTPA did not breach or fail to satisfy a condition of the release contract.

The remaining issues before the court were dismissed because without a negligence claim, they were also decided. The appellate court affirmed the trial court’s dismissal of the plaintiff’s claims and the award of costs under the Texas rules of civil procedure.

Costs are not attorney fees. Costs are the cost of going to trial, the filing fee, witness fees, possibly deposition costs, etc. Most states allow the winning side to recover costs of a trial.

So Now What?

This was close. It was obvious by the amount of time the court spend discussing the issue of a material breach that the language on the back of the release was an issue for the court. Always remember a release is a contract. You don’t buy a house with a laundry list on the back. You don’t rent an apartment with state driving laws on the back. Releases are contracts, and you need to make sure there is no issue that the document you are having your guests sign. A Release must be a contract and nothing else.

The university, because it was a state college was subject to broader and more protective statutes that provided defenses, than a private commercial gym or a private college. A state’s tort claims act provides a broad range for protection.

Whether or not a state’s recreational use statute provides protection for governmental agencies is different in each state. If you are in this position, you should check with counsel to see what protection any state statutes may provide.

What do you think? Leave a comment.

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Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940

Benavidez v. The University of Texas — Pan American, 2014 Tex. App. LEXIS 11940

Rolando Benavidez, Appellant, v. The University of Texas — Pan American, Appellee.

NUMBER 13-13-00006-CV

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI – EDINBURG

2014 Tex. App. LEXIS 11940

October 30, 2014, Delivered

October 30, 2014, Filed

PRIOR HISTORY: [*1] On appeal from the 92nd District Court of Hidalgo County, Texas.

COUNSEL: FOR APPELLANT: Hon. Russell Jackson, Law Office of Thomas J. Henry, Corpus Christi, TX.

FOR APPELLEE: Hon. Elsa Giron Nava, Tort Litigation Division, Austin, TX.

JUDGES: Before Chief Justice Valdez and Justices Rodriguez and Garza. Memorandum Opinion by Chief Justice Valdez.

OPINION BY: ROGELIO VALDEZ

OPINION

MEMORANDUM OPINION

Memorandum Opinion by Chief Justice Valdez

By three issues, which we construe as four, appellant Rolando Benavidez, challenges the trial court’s order granting appellee The University of Texas-Pan American’s (UTPA) plea to the jurisdiction. Benavidez argues that: (1) the release form he signed did not preclude his lawsuit because UTPA did not abide by the safety policies listed on the back of the form; (2) the Texas Recreational Use Statute did not preclude the lawsuit because Benavidez’s pleadings at least raised a fact issue regarding gross negligence; (3) the trial court erred by granting UTPA’s objections to his evidence; and (4) the trial court erred by ordering Benavidez to pay UTPA’s court costs. We affirm.

I. Background

This suit arises out of injuries sustained by Benavidez after falling from a climbing wall on the campus of UTPA. Prior to climbing the wall, the belayer, an employee of UTPA, tied a rope to a harness attached to Benavidez. While Benavidez climbed the wall, the belayer [*2] held on to the opposite end of the rope. After reaching the top of the wall, the belayer instructed Benavidez to “let go.” Subsequently, Benavidez fell thirty-three feet from the top of the wall, breaking his ankle in multiple places and suffering a lumbar spine compression fracture. Another employee of UTPA witnessed Benavidez fall and immediately came to his aid. She provided deposition testimony in which she explained that the figure eight-knot which is used to tie the rope to the harness was “either not tied properly, or not tied at all.”

Before he climbed the wall, Benavidez signed a waiver/release from liability. On the front of the page, the form stated:

By signing this agreement you give up your right to bring a court action to recover compensation or obtain any other remedy for any injury to yourself or your property or for your death however caused arising out of your use of the University of Texas Pan-American Climbing Wall now or any time in the future.

Also on the front of the page, under the heading, “Release/Indemnification and Covenant Not to Sue”, the form stated:

In consideration of my use of the Climbing Wall, I the undersigned user, . . . HEREBY DO RELEASE University [*3] of Texas Pan American . . . from any cause of action, claims, or demands of any nature whatsoever, including but not limited to a claim of negligence . . . against the University on account for personal injury, property damage, death or accident of any kind arising out of or in any way related to my use of the Climbing Wall, whether that use is SUPERVISED OR UNSUPERVISED, howsoever the injury or damages is caused, including, but not limited to the negligence of the University.

Benavidez initialed under this clause in the blank provided. Benavidez then initialed in the spaces provided under paragraphs stating that he: (1) would indemnify and hold harmless UTPA from all causes of action; (2) had full knowledge of the risks associated with climbing the wall; (3) was in good health and had no physical limitations precluding his safe use of the climbing wall; and (4) was of lawful age and was competent to enter into a legally binding agreement. Appellee signed and dated the bottom of the front page of the document in the space provided.

On the backside of the Waiver and Release from Liability, under the title “SAFETY POLICIES AND RULES”, it stated, inter alia:

I Rolando Benavidez [name written [*4] by Benavidez in space provided] accept full responsibility for my own safety while in the UTPA climbing Wall area. I agree to abide by, and help enforce the following safety policies and rules:

o To enter the climbing area, you must have signed a waiver of liability/assumption of the risk and turn into the climbing wall Supervisor.

o Climbers must check in/out at the Climbing Wall desk during operation hours.

o Before each climbing the entrance instructor and belayer must check each climber to ensure that the knot and harness buckle are correctly fastened and that the belay system and belayers harness buckles are safe.

o The belayer must keep their brake hand on the rope and eyes on the climber at all times.

o Belayers must belay while standing up: NO belaying from benches, seated, or in a reclined position.

. . . .

o No food or open drink containers allowed in the climbing wall area.

o No loose chalk.

o No obscene language.

. . . .

o No Jewelry

. . . .

o Any infraction of these rules will result in loss of climbing privileges. Repeated infractions will result in loss of future privileges for inappropriate or unsafe behavior.

These rules were included in a list of twenty-four safety policies and [*5] rules, all listed as bullet points. At the bottom of the document in bold letters, the document stated, “I acknowledge that I have read and agree to abide by the Wellness and recreational Sports Complex safety polices and Rules.” Underneath this statement, Benavidez printed and signed his name.

At the hearing on the plea to the jurisdiction, deposition testimony was admitted in which the belayer explained that although he believed at the time that he tied the knot securing the rope to the harness properly, he must not have appropriately tied a double figure-eight knot as he was instructed to do. The belayer also testified that an entrance examiner did not check the knot before Benavidez began his climb and that UTPA never followed that policy until after Benavidez’s accident occurred.

Benavidez filed suit under section 101.021 of the Texas Tort Claims Act. In his pleadings, Benavidez alleged that his injuries resulted from the belayer’s “failure to properly use the climbing equipment and properly supervise [Benavidez] during the climb.” Under the theory of respondeat superior, Benavidez claimed that his injuries were caused by the negligence and gross negligence of UTPA. Benavidez alleged a cause of [*6] action for negligent use of tangible personal property in that UTPA breached its “legal duty to [Benavidez] to provide supervision of [Benavidez], use safe equipment with [Benavidez], and to properly secure [Benavidez’s] harness prior to climbing.” Benavidez also alleged a cause of action for negligent use or condition of real property in that UTPA breached its duty to provide a safe climbing wall for Benavidez and failed to use ordinary care to protect Benavidez from an unreasonably dangerous condition. In addition, Benavidez alleged that UTPA had subjective awareness of a high degree of risk and acted with “conscious indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.”

UTPA filed a plea to the jurisdiction alleging that it did not waive immunity under the Texas Tort Claims Act because (1) Benavidez signed a waiver of liability prior to climbing the wall releasing UTPA from liability “for all damages complained of” by Benavidez, and (2) pursuant to the Texas Recreational Use Statute, which further limits a State entity’s waiver of immunity to circumstances in which the State entity fails to exercise a duty of care owed by a landowner to trespasser, [*7] Benavidez was required to demonstrate gross negligence in his pleadings and failed to do so. Benavidez responded by conceding that the Texas Recreational Use Statute applied to his claim and required him to prove gross negligence. Benavidez however contended that, (1) by his pleadings, he raised a fact issue on gross negligence; and (2) he could avoid enforcement of the release from liability as to all of his claims because UTPA committed a prior material breach or failed to satisfy a precondition of the contract by failing to comply with the safety polices.

After holding a hearing, the trial court entered an order granting UTPA’s plea to the jurisdiction and ordered Benavidez to pay UTPA’s court costs. This appeal followed.

II. Standard of Review

[HN1] We review a plea to the jurisdiction under a de novo standard of review. Westbrook v. Penley, 231 S.W. 3d 389, 394 (Tex. 2007). A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). When reviewing whether a plea was properly granted, we first look to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of the plaintiff and looking to the pleader’s intent. Id. at 226. “If a plea to the jurisdiction challenges the existence of jurisdictional facts, [*8] we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised,” even where those facts may implicate the merits of the cause of action. Id. at 227. If that evidence creates a fact issue as to the jurisdictional issue, then it is for the fact-finder to decide. Id. at 227-28. “However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at 228. In considering this evidence, we “take as true all evidence favorable to the nonmovant” and “indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” City of Waco v. Kirwan, 298 S.W.3d 618, 621-22 (Tex. 2009).

III. Texas Torts Claim Act

[HN2] As a governmental unit, UTPA is immune from both suit and liability unless the Tort Claims Act has waived that immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(A) (West, Westlaw through 2013 3d C.S.). Section 101.021 of the Tort Claims Act has been interpreted as waiving sovereign immunity in three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). Pursuant to section 101.021, a governmental unit in the state is liable for:

[HN3] (1) property damage, personal [*9] injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West, Westlaw through 2013 3d C.S.).

In addition, the parties do not dispute that the Texas Recreational Use Statute applies to this case. [HN4] When injury or death results on state-owned, recreational land, the recreational use statute limits the state’s duty even further to that owed by a landowner to a trespasser, which means that the State only waives immunity for conduct that rises to the level of gross negligence. Id. § 75.002 (West, Westlaw through 2013 3d C.S.); see also id. [HN5] §§ 75.003(g) (“To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental [*10] unit would be liable under [the Tort Claims Act], this chapter controls.”), 101.058 (same); State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006).

IV. Release/Waiver of Liability

a. Applicable Law

[HN6] A release operates to extinguish a claim or cause of action and is an absolute bar to the released matter. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The Texas Supreme Court has held that in order to be valid, a release must (1) provide fair notice by being conspicuous, and (2) comply with the express negligence doctrine. Id. To be conspicuous, a release must be written, displayed, or presented such that a reasonable person against whom it is to operate ought to have noticed it. See id. 510 (adopting the definition from Tex. Bus. & Com. Code Ann. § 1.201(b)(1) (West, Westlaw through 2013 3d C.S.)). A release satisfies the express negligence doctrine if it expresses the intent of the parties to exculpate a party for its own negligence. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989).

The party seeking the protections of a release asserts an affirmative defense. Dresser, 853 S.W.2d at 509. It is therefore the defendant’s burden to establish all elements of the affirmative defense. Id. UTPA argues that it did not waive immunity under the Texas Tort Claims Act because it would not be liable as a private party as it established an affirmative defense as a matter of law. See [*11] Tex. Civ. Prac. & Rem. Code Ann. § 101.021. Accordingly, we apply a traditional summary judgment evidentiary burden to the UTPA’s contention as we would to a private party’s reliance on a release from liability prior to trial. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Galveston Indep. Sch. Dist. v. Clear Lake Rehab. Hosp., L.L.C., 324 S.W.3d 802, 807 (Tex. App.–Houston [14th Dist.] 2010, no pet.) (reasoning that [HN7] a governmental entity’s challenge to jurisdictional facts implicating the merits of the plaintiff’s lawsuit “mirrors traditional summary-judgment practice”). The burden was therefore on UTPA to provide evidence establishing that Benavidez had released it from liability on the claims before the court. Clear Lake Rehab. Hosp., L.L.C., 324 S.W.3d at 811.

b. Discussion

In its plea to the jurisdiction, UTPA argued that it did not waive immunity from Benavidez’s Texas Tort Claims Act suit because Benavidez executed the release contract, which “released [UTPA] of all liability for the damage complained of in [Benavidez’s] cause of action.”1 Specifically, UTPA asserted that because the release was executed, Benavidez’s “suit is barred in its entirety and [UTPA] moves for dismissal as a matter of law.” Moreover, both in its plea to the jurisdiction and on appeal UTPA described the release from liability as the “real issue before the court,” and UTPA framed its Texas Recreational Use Statute defense as an alternative [*12] argument, asking the trial court to address the issue if it found that the release was not enforceable. In his appellate brief, Benavidez concedes that UTPA’s plea to the jurisdiction was based on two alternative defenses: “(1) [Benavidez] waived all personal injury claims in a waiver/release from liability form . . . ; and (2) [Benavidez’s] claims are barred by the recreational use statute.”

1 This Court has never held that a state entity’s affirmative defense is a proper basis for granting a plea to the jurisdiction. In its plea to the jurisdiction, UTPA relied on Texas Engineering Extension Service v. Gifford, in which the Waco Court of appeals reversed a denial of a plea to the jurisdiction because it found that the plaintiff had executed a release from liability. No. 10-11-00242-CV, 2012 Tex. App. LEXIS 2030, 2012 WL 851742, at *4 (Tex. App.–Waco Mar. 14, 2012, no pet.) (mem. op.). The Gifford court reasoned that under the Texas Tort Claims Act:

A governmental unit is liable for personal injury if the government would be liable, were it a private person, according to Texas law. [The plaintiff’s] execution of the release and indemnity agreement extinguished any liability owed by [the defendant]. Because a private person would not be liable for [the [*13] plaintiff’s] personal injuries, [the defendant] has not waived its sovereign immunity.

Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West, Westlaw through 2013 3d C.S.)). In this appeal, we need not determine whether we agree with this analysis. Benavidez does not argue that UTPA’s affirmative defense of release is an improper basis for an order granting a plea to the jurisdiction; therefore, we cannot reverse the trial court’s judgment on this basis and we decline to consider this issue. Tex. R. App. P. 47.1. Accordingly, for purposes of this appeal only, we assume without deciding that the affirmative defense of release, if established as a matter of law, may be a valid basis upon which to grant a plea to the jurisdiction.

Notably, while Benavidez did not specifically plead separable causes of action for negligence and gross negligence, he did claim that the injuries alleged were caused by the negligence and gross negligence of UTPA and that UTPA exhibited “conscious indifference to the rights, safety, or welfare of [Benavidez] or others similarly situated.” Moreover, in his motion for summary judgment, response to the plea to the jurisdiction, and appellate brief and at the hearing on [*14] the plea and at oral arguments on appeal, Benavidez conceded that the Texas Recreational Use Statue applied to his lawsuit, which required him to show gross negligence. He thereby effectively abandoned any separate claim of ordinary negligence, to the extent that it was originally pleaded, and proceeded only with a suit for gross negligence.

By granting the plea to the jurisdiction, which alleged that Benavidez released all claims against UTPA, the trial court therefore held that Benavidez released UTPA from liability for gross negligence. There is some disagreement among the courts of appeals as to whether a party may validly release claims of gross negligence. Some courts have held that negligence and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.–San Antonio 1994, writ denied). In contrast, the Dallas Court of Appeals recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 926 (Tex. App.–Dallas 2013, no pet.). The Dallas Court reasoned that the public policy requiring an express release from negligence [*15] also requires an express release from gross negligence. See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.–Beaumont 1986, no writ).

This Court has never addressed the issue of whether a release from liability for gross negligence is separable from a release of liability from negligence, or whether a release of liability for gross negligence violates public policy. See Blankenship v. Spectra Energy Corp., 13-12-00546-CV, 2013 Tex. App. LEXIS 10169, 2013 WL 4334306, at *5 n.6 (Tex. App.–Corpus Christi Aug. 15, 2013, no pet.) (declining to decide whether a party may release claims of gross negligence because the release was unenforceable for failure to satisfy fair notice requirements and because summary judgment evidence conclusively negated the gross negligence claim). Here, we cannot decide this issue because it has not been raised. Tex. R. App. P. 47.1. On appeal, Benavidez effectively concedes that the release form purports to release UTPA from liability for all personal injury claims, but relies solely on contract defenses as an attempt to avoid enforcement of the release. He does not challenge enforcement of the release on the ground that it was inapplicable to his gross negligence claims; similarly [*16] he does not argue that the release of his gross negligence claims was invalid because it did not comply with fair notice requirements or because it violated public policy. See id. Moreover, Benavidez did not present any of these arguments to the trial court. See. id. R. 33.1.

Accordingly, we now address Benavidez’s first issue, in which he contends that he can avoid enforcement of the release contract because the belayer failed to properly tie the knot, and because UTPA failed to follow its own policy that required an entrance instructor to check the knot after it was tied. Benavidez argues that these actions constituted either a prior material breach of the release contract or a failure to satisfy a precondition of the contract. We disagree.

[HN8] Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). This court is bound to read all parts of a contract together to ascertain the agreement of the parties. See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 180 (Tex.1965). The contract must be considered as a whole. Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Moreover, each part of the contract should be given full effect. [*17] See Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex.1987).

[HN9] Under the theory of prior material breach, a party is discharged from its contractual obligations based on the other party’s material breach of the contract. See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 198 (Tex. 2004) (determining that a party was released from further contractual obligations when the other party materially breached). In order for a material breach of contract to occur, the party seeking avoidance must be deprived of part of its consideration or an expected benefit of the contract.2 See id. at 199.

2 [HN10] Texas courts have adopted the factors set forth in the Restatement (Second) of Contracts for determining the materiality of a breach:

(1) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

(2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

(3) the extent to which the party failing to perform or to offer performance will suffer forfeiture;

(4) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; and

(5) the extent to which the behavior of the party failing to perform or to offer to perform comports [*18] with standards of good faith and fair dealing.

Mustang Pipeline Co., v. Driver Pipeline Co., 134 S.W.3d 195, 199 (Tex. 2004); Restatement (Second) of Contracts § 241(a) (1981).

Alternatively, [HN11] a condition precedent is an event that must occur or act that must be performed before rights can accrue to enforce an obligation. See Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992). Ordinarily, terms such as “if,” “provided that,” “on condition that,” or similar conditional language indicate the intent to create a condition precedent. Criswell v. European Crossroads Shopping Ctr., 792 S.W.2d 945, 948 (Tex.1990). Conditions precedent, which can cause forfeiture of a contractual right, are not favored under the law, and we will not construe a contract provision as a condition precedent unless we are compelled to do so by language that may be construed in no other way. See Reilly, 727 S.W.2d at 530.

As an initial matter, we cannot conclude that under the plain language of the contract, the safety policies listed on the back of the waiver are part of Benavidez’s agreement to release UTPA from liability on the front of the document; therefore, UTPA could not breach or fail to satisfy a condition of the release contract by failing to follow the safety policies. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d at 948. Here, the separate sides of the document constitute separate agreements that were each signed separately by Benavidez; moreover, they contain separate promises to perform [*19] distinct duties. In the agreement on the front of the page, Benavidez agreed to release UTPA from liability for its own negligence resulting from any injury. In the agreement on the back of the page, Benavidez again agreed to accept full responsibility for any accident and agreed to comply with the safety policies listed on the form. In addition, the language of the document reveals that the safety policies referred to the release clause only by requiring the prospective climber to complete the release form before climbing the wall. This in no way indicates that the safety policies are part of the consideration or a condition of the waiver/release from liability.3

3 Benavidez also refers us to deposition testimony from the coordinator of campus activities in which he agreed that both the back and front of the document are part of one agreement. This testimony however does not indicate that the safety policies were consideration for or a precondition of the release from liability. Moreover, the coordinator’s testimony did not indicate that he was giving a legal opinion on whether both sides of the agreement constitute one contract.

In fact, the language of the release clause explicitly states [*20] that the consideration for the release is the climber’s opportunity to climb the wall. Further, the clause stipulates, in capital letters, that the release applies whether climbing is “SUPERVISED OR UNSUPERVISED,” which indicates that UTPA was not promising to undertake any duty or conditioning the release on any action other than providing the climber with access to the climbing wall.

Moreover, even if we were to consider the two sides of the document as one agreement, the safety policies side of the document, by its clear language, does not indicate that UTPA promised to comply with the policies or that compliance with the policies by UTPA was consideration for or a condition precedent of Benavidez’s agreement to release UTPA from liability. See Forbau, 876 S.W.2d at 133. Benavidez argues that the bullet point stating, “Before each climbing the entrance instructor and belayer must check each climber to ensure that the knot and harness buckle are correctly fastened” indicates that UTPA undertook an affirmative contractual duty to follow this policy as part of Benavidez’s agreement to waive liability.4 However, reading the safety policies document as a whole, we find that the language of the agreement placed [*21] the sole responsibility on the climber to ensure that the procedures in the safety polices were followed. See Reilly, 727 S.W.2d at 529. At the top of the safety policy side of the document, it specifically states, “I Rolando Benavidez [name written by Benavidez in the space provided] accept full responsibility for my own safety while in the UTPA climbing Wall area. I agree to abide by, and help enforce the following safety policies and rules.” The safety policies are listed as bullet points beneath this agreement. The language Benavidez refers to is listed among multiple bullet points mostly relating to Benavidez’s conduct, such as “no jewelry” and “no obscene language.” As is clear from the plain language of the agreement, these are policies that Benavidez agreed to abide by and help enforce; no language indicates that UTPA agreed to comply with the policies or that the policies were consideration for or a condition precedent of the release from liability.

4 On appeal, Benavidez claims that the word “before”, used as part of the safety polices, indicates that the bullet point was a condition precedent of the contract. Criswell v. European Crossroads Shopping Ctr., 792 S.W.2d 945, 948 (Tex. 1990). However, the term indicates that the safety policies were to be complied with before Benavidez [*22] climbed the wall not before he released UTPA from liability or before the contract could be enforceable. See id.

Further, the final bullet point of the safety policies stated that, “Any infraction of these rules will result in loss of climbing privileges. Repeated infractions will result in loss of future privileges and possibly additionally sanctions . . . .” The fact that the climber was subject to punishment for failure to follow the policies further indicates that the document was intended to require the climber to comply with and ensure compliance with the safety polices, and was not a promise to comply with the policies by UTPA.

Finally, at the bottom of the safety policies, directly before Benavidez’s signature, it explicitly states: “I acknowledge that I have read and agree to abide by the Wellness and recreational Sports Complex safety polices and Rules.” Neither this language nor any other language on either side of the document indicates that Benavidez premised his acceptance of responsibility on or expected the benefit of the performance of any duty on the part of UTPA. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d at 948.

Because we find that, by its clear language, the waiver and release form did not express the intent [*23] of either party to condition the release from liability on any performance by UTPA and did not include a promise by UTPA to follow the safety policies as consideration for the contract, we conclude that UTPA did not breach or fail to satisfy a condition of the release contract. See Forbau, 876 S.W.2d at 133. Therefore, Benavidez could not avoid enforcement of the release. See Mustang Pipeline Co., 134 S.W.3d at 198; Criswell, 792 S.W.2d at 948. We overrule Benavidez’s first issue.

V. Remaining Issues

Because we are affirming the order granting the plea to the jurisdiction based on the trial court’s finding that Benavidez released UTPA from liability on all of his claims, we need not address Benavidez’s second issue in which he argues that the Texas Recreational Use Statute does not bar his suit because he pleaded facts sufficient to raise a fact issue on gross negligence. Tex. R. App. P. 47.1. Moreover, we assume without deciding that all of the evidence presented by Benavidez was admissible; therefore, we need not address Benavidez’s third issue in which he argues that the trial court erred by sustaining UTPA’s objections to his evidence. Id.

Finally, Benavidez argues that the trial court erred by awarding UTPA court costs. [HN12] Under Texas Rule of Civil Procedure 131, the “successful party to a suit shall recover [*24] court costs incurred therein, except where otherwise provided.” Tex. R. Civ. P. 131. A successful party, under the rule, has been defined as “one that obtains a judgment vindicating a civil right.” Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 612 (Tex. App.–Houston [14th Dist.] 2006, pet. denied). Benavidez argues that the trial court could not award court costs because to this date, no judgment has been issued by the trial court. However, Benavidez cites no law, and we find none, indicating that the trial court may not award court costs pursuant to Texas Rule of Civil Procedure 131 in an order granting a plea to the jurisdiction. See Tex. R. Civ. P. 131. Accordingly, we overrule Benavidez’s fourth issue.

VI. Conclusion

We affirm the trial court’s order granting UTPA’s plea to the jurisdiction

/s/ Rogelio Valdez

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 30th day of October, 2014.


Nepal Mountaineering Association working on Himalayan issues

Report to the International Climbing and Mountaineering Federation (UIAA) shows efforts and hard work to make mountaineering a great sport and occupation

Ang Tshering Sherpa has filed a report with the UIAA with updates on the work the association is doing. The association has been around for years, however the avalanche on Mt. Everest this spring has prompted this new round of action on behalf of the association.

This is a very comprehensive report showing work on dozens of topics.

See Nepal Himalaya issues being addressed by the Nepal Mountaineering Association

What do you think? Leave a comment.

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