New Jersey holds that if you signed the release, you are held to its terms even if you cannot read English.

There was a ton of issues that in many states might have voided the release, 8 pt font, missing initial and the plaintiff not understanding English were just a few of them.

Citation: Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

State: New Jersey, United States District Court, D. New Jersey

Plaintiff: Soon Ja Kang

Defendant: LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: 2016

Summary

If you sign the membership agreement containing a release in New Jersey, you are held to the terms of the release, even if you can’t speak or read English. Plaintiff could not read or speak English, signed LA Fitness membership agreement and could not sue after she was injured on a piece of equipment.

Facts

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction. The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action.

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

The court started its analysis by looking at the release and the injury the plaintiff suffered. The court found the injury fell within the confines of the release.

As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

The issue then became whether or not the release applied to someone who did not speak or read English. Releases in New Jersey are enforceable if:

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

The court throughout the third factor because the defendant was not a public utility or common carrier. The court then reviewed whether the exculpatory clause affected the public interest. The court found it did not.

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

There seemed to be somewhat of a limit to the release based on the courts next comment about the reach of the release.

The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

The plaintiff then argued the release violates the New Jersey Plain Language Act. N.J. Stat. Ann. § 56:12-2. The act requires a consumer contract to be “written in a simple, clear, understandable and easily readable way.”

The plaintiff then argued the act was violated because the print size (font) was 8 points, and the margins of the paper were .5″ “reflecting the intentions of the drafter to squeeze in additional words.”

Reviewing examples of bad language found in the act, the court determined the release did not violate the Plain Language Act.

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

The next issue was there any legal duty to perform on the part of the defendant part 2 of the four requirements.

There were no state statutes or regulation’s setting standards for fitness facilities. The plaintiff argued that National Associations had created standards that applied to fitness facilities. However, the court could not find that to be valid. “However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state.”

The final argument was the release was unconscionable because of unequal bargaining power between the plaintiff and defendant.

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter.

The court did not agree with any of the plaintiffs’ arguments. And stated in clear language that the plaintiff’s inability to speak English did not stop her from becoming bound to the terms of the release.

As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

The court went on to explain that if you sign the agreement, you are bound to the terms of the agreement, whether or not you understood the agreement.

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

The final issue was the missing initial in the document. Because she had signed the agreement, the signature at the bottom of the agreement was all that was needed for the release to be valid.

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms.

The plaintiff then argued the release and fitness contract containing the release were unconscionable. The court summed up the plaintiffs’ unconscionable argument as an amalgamation of all of her other arguments. The court found the exculpatory clause did not offend public policy, and the other arguments for unconscionability did not change the release validity.

Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

The motion for summary judgment of the defendant was granted the plaintiff’s claims dismissed.

So Now What?

New Jersey is another state that upholds the idea that if you sign a release, you are bound to the terms of the release no matter if you could understand the release, the type was too small; you did not read or speak English, or you just want out of the release.

At the same time, this list from my studies has only two states on it, California being the other state. See Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English.

What do you think? Leave a comment.

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Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Soon Ja Kang Plaintiff,

LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al., Defendants.

Civil No. 2:14-cv-07147 (KSH) (CLW)

United States District Court, D. New Jersey

December 29, 2016

NOT FOR PUBLICATION

OPINION

Katharine S. Hayden, U.S.D.J.

Before the Court is defendants’ motion for summary judgment as to the validity and enforceability of an exculpatory clause in a fitness center membership agreement with plaintiff. For the reasons set forth below, the Court finds the liability waiver to be valid and enforceable and defendants’ motion is granted.

I. Background

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts (“SOF”) (D.E. 19), at ¶ 1. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership. Id. at ¶ 2. The membership agreement she signed states in relevant part:

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or Member’s minor children of LA Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member and Member’s minor children being permitted to enter any facility of LA Fitness (a “Club”) for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds LA Fitness, its directors, officers, employees, and agents harmless from all liability to Member, Member’s children and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of LA Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment. Member also hereby agrees to indemnify LA Fitness from any loss, liability, damage or cost LA Fitness may incur due to the presence of Member or Member’s children in, upon or about the LA Fitness premises or in any way observing or using any facilities or equipment of LA Fitness whether caused by the negligence of Member(s) or otherwise. You represent (a) that Member and Member’s minor children are in good physical condition and have no disability, illness, or other condition that could prevent Member(s) from exercising without injury or impairment of health, and (b) that Member has consulted a physician concerning an exercise program that will not risk injury to Member or impairment of Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of New Jersey and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. Member has read this release and waiver of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement has been made.

LA Fitness Moving Br., Exh. E (D.E. 22-7).

Kang and her husband do not read or understand English, but their daughter was present to translate for them when they signed up. See SOF, at ¶¶ 4-5. Kang signed a membership agreement. She did not initial next to the waiver and liability provision in her membership agreement; however, her husband was asked to initial next to the same provision in his membership agreement, and he did so. Id. at ¶ 6.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. See SOF, at ¶¶ 2, 7. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction (D.E. 1). The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action. The motion was fully briefed. (D.E. 22, 25, 26).

The Court makes its decision on the paper.

II. Discussion

A. Standard

Summary judgment is warranted where the moving party demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). The parties have conducted discovery on the circumstances surrounding the formation of Kang’s membership agreement and, as set forth in the analysis below, all facts relevant to the enforceability of the waiver provision are essentially undisputed as set forth in the Final Pretrial Order Stipulation of Facts (D.E. 19). In determining whether the waiver provision is enforceable as a matter of law, the Court “view[s] the evidence in the light most favorable to [Kang] and draw[s] all justifiable, reasonable inferences in [her] favor.” Sgro v. Bloomberg L.P., 331 F.Appx. 932, 937 (3d Cir. 2009).

B. Analysis

Pursuant to the release and waiver of liability provision in her membership agreement, Kang released and held LA Fitness harmless for all injuries she might suffer “whether caused by the active or passive negligence of LA Fitness or otherwise, ” while she was “in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment.” LA Fitness Moving Br., Exh. E (D.E. 22-7). As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

In Stelluti v. Casapenn Enterprises, LLC, 408 N.J.Super. 435, 454 (App. Div. 2009), aff’d, 203 N.J. 286 (2010), the New Jersey Appellate Division addressed the enforceability of exculpatory releases in fitness center membership agreements:

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

Id. The third factor is inapplicable here, because LA Fitness is not a public utility or common carrier. See Kang Opp. Br., at p. 6. The Court analyzes the remaining Stelluti factors in turn.

1. Does the Exculpatory Clause Adversely Affect the Public Interest?

LA Fitness argues that the exculpatory clause in this case does not adversely affect the public interest because it is “a facility that encourages New Jersey’s public policy promoting physical fitness.” LA Fitness Moving Br., at p. 6. Noting the important policy objective of promoting public health, the Stelutti court held:

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

Stelluti, 408 N.J.Super. at 459. The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

Kang argues that public policy promoting physical fitness “cannot counteract the other public policy reasons that are in place to protect against improper liability waivers.” Kang Opp. Br., at p. 7. To that end, she argues that the release in this case violates the New Jersey Plain Language Act, which states that “[a] consumer contract entered into on or after the effective date of this amendatory and supplementary act shall be written in a simple, clear, understandable and easily readable way.” N.J. Stat. Ann. § 56:12-2. Specifically, Kang argues that the small font size and margins in the contract are such that “[s]omeone who can read and understand English would be substantially confused by this agreement[.]” Kang Opp. Br., at p. 8.

To determine whether the waiver provision violates the Plain Language Act, the Court turns to the plain language of the act itself. Section 56:12-10 provides:

To insure that a consumer contract shall be simple, clear, understandable and easily readable, the following are examples of guidelines that a court . . . may consider in determining whether a consumer contract as a whole complies with this act:

(1) Cross references that are confusing;

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

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

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

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

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

N.J. Stat. Ann. § 56:12-10. Section 56:12-10 further provides:

The following are examples of guidelines that a court . . . may consider in determining whether the consumer contract as a whole complies with this act:

(1) Sections shall be logically divided and captioned;

(2) A table of contents or alphabetical index shall be used for all contracts with more than 3, 000 words;

(3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.

Id. A Court has discretion as to how much consideration should be given to the above-listed statutory guidelines in finding a violation of the act. See Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

Instead, Kang argues that the waiver provision violates the Plain Language Act because “[t]he size of the font (print) is about size 8, whereas the standard size used in everyday documents is size 12[, ]” and because “[t]he margins on the sides of the pages are about 0.5 inch . . . reflecting the intentions of the drafter to squeeze in additional words.” Kang Opp. Br., at p. 8. However, applying the above guidelines, the Court does not find that the waiver provision in this case is any less prominent that the remainder of the agreement. See N.J. Stat. Ann. § 56:12-10b(3). To the contrary, the waiver and liability provision is the only clause in the membership agreement preceded by a title in all caps (“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY”), and it is the only clause that is fully enclosed by a border, creating a visual separation between the waiver and the rest of the agreement.

The Court finds that the waiver provision in this case does not offend public policy under Stelluti and does not otherwise violate the New Jersey Plain Language Act.

2. Is LA Fitness Under a Legal Duty To Perform?

LA Fitness argues that its relationship with Kang does not create any duties prescribed by statute or regulation. See LA Fitness Moving Br., at pp. 6-8. New Jersey courts have found liability waivers to be invalid as against public policy where they conflict with legislatively imposed duties. For example, in Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J.Super. 112, 118 (App. Div. 1975), the court found it against public policy for a bank to exculpate itself from liability or responsibility for negligence in the performance of its function as a night depository service, in part due to the “extensive statutory regulations covering every phase of the banking business[.]” Id. at 118. Similarly, in McCarthy v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 48 N.J. 539, 543 (1967), the New Jersey Supreme Court held a liability waiver invalid as against public policy because it purported to contract away safety requirements prescribed by statute dealing with motor vehicle racing. See id. at 543 (“[t]he prescribed safety requirements may not be contracted away, for if they could be the salient protective purposes of the legislation would largely be nullified”).

Kang argues that “although there are no statutes specific to fitness centers, there are several national associations that have established standards that apply to the fitness industry[.]” Kang Opp. Br., at pp. 8-9. However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state. Kang further argues that the Stelluti court acknowledged the well-established duties of care that New Jersey business owners owe to patrons that enter their premises. See Kang Opp. Br., at p. 8. However, as noted above in Part B.1. supra, Stelluti expressly held that fitness center liability waivers such as the one at issue here do not violate public policy at least to the extent that they exculpate for ordinary negligence. Stelluti, 408 N.J.Super. at 459. The Court finds that LA Fitness is not under any legal duty that precludes its reliance on the liability waiver in this case.

3. Does the Contract Grow Out of Unequal Bargaining Power or is it Otherwise Unconscionable?

With respect to the final Stelluti factor, Kang argues that the waiver: (1) was not the product of mutual assent; and (2) is unconscionable as a term in a contract of adhesion. See Kang Opp. Br., at pp. 10-14. The Court addresses both arguments in turn.

a. Mutual Assent

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter. See Kang Opp. Br., at pp. 10-11. Accordingly, Kang argues that she did not “clearly, unequivocally, and decisively surrender[ ] her rights” as is required for a valid waiver. Id. at p. 11.

The Court finds these arguments unavailing. As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

Statewide Realty Co. v. Fid. Mgmt. & Research Co., 259 N.J.Super. 59, 73 (Law. Div. 1992) (internal citations and quotations omitted); see also Herrera v. Twp. of S. Orange Vill., 270 N.J.Super. 417, 423, 637 (App. Div. 1993) (enforcing release agreement in the absence of fraud, notwithstanding testimony by plaintiff that she did not understand the release because she could not read English).

Under the New Jersey case law cited above, absent allegations of fraud, deceit, or misrepresentation which Kang does not make here, she is conclusively presumed to have understood and assented to the membership agreement’s terms-including the waiver-and legal effect. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 305 (2010) (“Although Stelluti argues that she did not know what she was signing, she does not claim that she signed the waiver form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within reason to presume that she understood the terms of the agreement . . . and the finding to that effect is unassailable.”)

Nor does the fact that LA Fitness may not have explained the waiver to her or her daughter preclude enforcement. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301- 02 (2010) (enforcing exculpatory clause while giving plaintiff benefit of inference that “Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability”).

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms. See Statewide, 259 N.J.Super. at 73.

b. Unconscionability

Kang also argues that even if the waiver is found to be enforceable, the Court should invalidate it as a contract of adhesion. “[T]he essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without the opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353, 605 A.2d 681, 685 (1992). Kang’s unconscionability argument is essentially an amalgamation of all of her arguments summarized above: that as someone who does not speak English she lacked the sophistication to understand the terms to which she was agreeing, LA Fitness knew that she was in no position to understand those terms, she did not initial next to the waiver provision, the waiver is one-sided and printed on a standard form agreement, and she was not in a position to negotiate the terms of the agreement. Kang Opp. Br., at pp. 12-14.

Notably, not all contracts of adhesion are unenforceable. In Stelluti, the New Jersey Supreme Court held:

Here, Powerhouse’s agreement was a standard pre-printed form presented to Stelluti and other prospective members on a typical ‘take-it-or-leave-it basis.’ No doubt, this agreement was one of adhesion. As for the relative bargaining positions of the parties, . . . we assume that Stelluti was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically. Giving her the benefit of all inferences from the record, including that Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability, we nevertheless do not regard her in a classic ‘position of unequal bargaining power’ such that the contract must be voided. As the Appellate Division decision noted, Stelluti could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. No time limitation was imposed on her ability to review and consider whether to sign the agreement. In sum, although the terms of the agreement were presented ‘as is’ to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.

Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301-02 (2010).

Like the defendant in Stelluti, Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

Because the exculpatory clause does not offend public policy, the Court finds it to be valid and enforceable. Accordingly, LA Fitness’s motion for summary judgment is granted.

III. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is granted, and the clerk of the court is direct to close this case. An accompanying Order will be filed.


Interesting decision only real defense was the Wyoming’s Recreation Safety Act, which provides little if any real defense.

Defendants 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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Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788

Rizas 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


Question answered in California, what happens if an injured skier is injured again while be tobogganed down the ski slope?

If you assume the risk of skiing in California, you also assume the risk of being injured being tobogganed down the hill by a ski patroller.

Martine v. Heavenly Valley, 2018 Cal. App. Unpub. LEXIS 6043

State: California, Court of Appeal of California, Third Appellate District

Plaintiff: Teresa Martine

Defendant: Heavenly Valley Limited Partnership

Plaintiff Claims: ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree, A ski patroller operating a sled is a common courier

Defendant Defenses: Assumption of the Risk

Holding: For the defendant

Year: 2018

Summary

This is a first of its kind case that I have found alleging negligence against the ski area for an injury received while being transported down a ski run in a toboggan by a ski patroller.

The case also looked at whether a ski area operating a ski patrol using toboggans was a common carrier, owing “passengers” the highest degree of care.

Neither argument by the plaintiff won because she assumed the risks of skiing and after claiming an injury, the risk of being transported down the mountain by the ski patroller in a toboggan.

Facts

As the plaintiff was waiting for a ski patroller to come assist a friend she was skiing with she felt her knee slip. She then requested a toboggan ride down the mountain from the ski patrol.

While descending the mountain, the patroller claims he was hit by a snowboarder and knocked down causing the toboggan to crash. The plaintiff alleged the ski patroller was skiing too fast and lost control sending the toboggan tumbling down the mountain injuring her.

“Heavenly contends that while [Horn] was skiing down the groomed and limited pitch terrain on Lower Mombo, three snowboarders emerged from the trees, off-piste to his right. [Fn. omitted.] While the snowboarders turned to their right, Heavenly claims the last snowboarder clipped [Horn’s] right ski, causing him to fall. Based upon [Horn’s] view, as the snowboarders turned right, they did so on their toe side edge, which put their backs to him. [Horn] tried to avoid a collision with the last snowboarder, but he was unsuccessful, and when he fell the toboggan rolled over. Heavenly alleges that the rollover caused some of plaintiff’s equipment in the toboggin to hit her head.

“Plaintiff, however, contends there was no contact with any of the snowboarders, who she claims were downhill of [Horn]. Instead, plaintiff argues [Horn] lost control of the sled, and he was going too fast and fell. Plaintiff further asserts that [Horn’s] reports indicate the incident did not involve any collision, and the toboggan tumbled instead of simply rolling over. Plaintiff also contends her initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

The plaintiff filed suit, one year 11 months after her injury, claiming a simple negligence claim. The ski area answered and pled numerous affirmative defenses, including the defense of assumption of the risk.

An affirmative defense is one that must be plead by the defendant, or it is lost. Affirmative defenses are listed by the courts, and their requirements are specific and known so that the parties understand exactly what is meant by the defense.

The ski area eventually filed a motion for summary judgment based on the affirmative defense of assumption of the risk. The trial court agreed and granted the defendants motion. The plaintiff appealed, and this decision is the California Court of Appeals upholding the trial court’s decision.

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

The analysis started with a review of the findings of the trial court.

The trial court found, in part, that Martine voluntarily engaged in the activity of skiing and injured her knee while doing so. The court further found that Martine voluntarily summoned the ski patrol for help and voluntarily accepted the ski patrol’s aid knowing that she and Horn risked interference from, or collisions with, other skiers or snowboarders as they descended the mountain.

The court then looked at how primary of assumption of the risk as defined under California law would apply to this case.

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.”

If the injured party voluntarily agrees to participate, in the sport of skiing or in being transported down the mountain by the ski patrol, the plaintiff assumed the risk of her injuries.

You volunteer to ski; you volunteer to get in the toboggan and you volunteer to be skied down the hill by the patroller. You, therefore, cannot sue because of the primary assumption of the risk doctrine. You knowingly assumed the risk leading to your injuries.

The plaintiff argued on appeal that a ski patroller running a toboggan is a common carrier. A common carrier is generally known as a business that transport people for a fee. Trains, subways, and airlines are examples of common carriers. A common carrier owes the highest degree of care to those who the common carrier is transporting.

Specifically, a common carrier must “do all that human care, vigilance, and foresight reasonably can do under the circumstances” to avoid injuring those that it carries.

California defines common carries by statute, Civil Code section 2168, which defines common carrier as “[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages is a common carrier of whatever he thus offers to carry.”

In California and Colorado, a ski area is a common carrier when someone is riding the ski lift. They are transporting people for hire and in the business of doing so to anyone who buys a ticket.

There is a three-part test to determine whether someone transporting someone for hire is a common carrier.

In deciding whether Heavenly is a common carrier, a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services.

The court did not have to determine if Heavenly was a common carrier because the plaintiff put forth no facts, no evidence that the ski area and a ski patroller with a toboggan were a common carrier. With no evidence, the plaintiff cannot make an argument supporting her claims, and the court could not make a ruling.

The court, however, still overruled the argument stating:

Further, descent from a mountain via rescue sled operated by ski patrol is distinguishable from the ski lifts discussed in Squaw Valley because unlike the lifts that indiscriminately “carry skiers at a fixed rate from the bottom to the top” of the mountain, rescue patrollers, at a patroller’s discretionary election, transport injured skiers without any apparent compensation to the bottom of the mountain.

The California Appellate Court upheld the dismissal of the plaintiff’s complaint.

So Now What?

You always have the option, unless you are unconscious, to refuse the toboggan ride down the mountain and get down on your own. In this case, it almost sounds like the plaintiff still could have skied down but did not.

It does not matter though because once you assume the risk of skiing you assume all the risks associated with the activity, including the risks of additional injury while being rescued.

What do you think? Leave a comment.

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Martine v. Heavenly Valley, 2018 Cal. App. Unpub. LEXIS 6043

Martine v. Heavenly Valley

Court of Appeal of California, Third Appellate District

September 4, 2018, Opinion Filed

C076998

2018 Cal. App. Unpub. LEXIS 6043 *

TERESA MARTINE, Plaintiff and Appellant, v. HEAVENLY VALLEY LIMITED PARTNERSHIP, Defendant and Respondent.

Opinion

 [*1]  Plaintiff Teresa Martine (Martine) hurt her knee while skiing at Heavenly Valley Ski Resort and was being helped down the mountain by a ski patrolman when the rescue sled in which she was riding went out of control and hit a tree. Martine sued resort owner Heavenly Valley Limited Partnership (Heavenly) for negligence and for damages arising from her injuries.

Heavenly moved for summary judgment arguing that there was no evidence that its employee, a ski patrolman named Gustav Horn (Horn) had been negligent in taking Martine down the mountain thus causing the sled to hit the tree and that, in any event, Martine‘s action is barred by the doctrine of primary assumption of risk.

The trial court granted Heavenly’s motion and entered judgment accordingly. Martine appeals.

As we understand her arguments on appeal, Martine asserts: (1) there is evidence on the motion to support Martine‘s claim that the ski patroller Horn was negligent; (2) her action is not barred by the doctrine of primary assumption of risk; (3) the trial court erred in not allowing her to amend her complaint to allege negligence and damages arising from a second injury she incurred the same day while being taken off the [*2]  mountain; and (4) the trial court erred in not granting her motion for a new trial.

We affirm the judgment.

The Proceedings

On March 2, 2011, Martine filed a Judicial Council of California form complaint alleging general negligence against Heavenly for injuries she suffered on March 23, 2009. Specifically, Martine alleged: “Heavenly is liable for the negligent transportation of an injured party. Ms. Martine injured her knee while skiing and called for ski patrol to transport her to the bottom of the mountain. She was loaded into a sled by ski patrol, who may have loaded her improperly. During her transport to the bottom of the mountain, ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree. As a result of the accident, Ms. Martine suffered injuries to her head and leg.”

Heavenly answered the complaint, asserting various affirmative defenses, including that Martine had assumed the risk for all injuries sustained and that her injuries “resulted from inherent risks of the activity in which [Martine] engaged and as to which [Heavenly] owed no duty.”

On November 21, 2012, Heavenly brought its motion for summary judgment (Motion) [*3]  arguing alternatively that Martine‘s complaint (1) was barred by the doctrine of primary assumption of risk, or (2) there was no evidence that Heavenly breached a duty of care and/or caused Martine‘s injuries.


Martine opposed the Motion, arguing: (1) the doctrine of primary assumption of risk “does not apply to the transportation of injured skiers by the ski resort’s ski patroller” and (2) the doctrine of primary assumption of risk “does not apply to the transportation of injured skiers by the ski resort’s ski patroller engaged in a common carrier activity charged with the duty of utmost care.” As to her common carrier contention, Martine also argued that the doctrine of res ipsa loquitur applied, which would show negligence on the part of Heavenly’s employee.

The trial court granted the motion for summary judgment and entered judgment for Heavenly ruling that Martine‘s action was barred by the doctrine of primary assumption of risk and that Heavenly was not acting in the capacity of a common carrier at the time of the accident.

Martine thereafter moved for a new trial arguing, in part, that there was newly discovered evidence. The trial court denied the motion.

The Facts

In its order [*4]  granting summary judgment, the trial court set forth the following disputed and undisputed facts relevant to the motion. Neither party has challenged the trial court’s statement of facts and, having reviewed the record on our own, we will adopt it as the statement of facts relevant to the motion for summary judgment.

“On March 23, 2009, plaintiff was skiing down Powder Bowl at Heavenly Mountain Resort. While skiing with friends, one of plaintiff’s companions came out of her skis, and plaintiff called for the assistance of ski patrol. Plaintiff claims that while standing on the hill her kneecap ‘moved out and back in.’

“Volunteer ski patroller Gustav ‘Gus’ Horn was dispatched to the scene of plaintiff’ s call for assistance. [Horn had] been a ski patroller, both paid and as a volunteer, for the [prior] twenty-eight years. He [had] been at Heavenly for ten years, and he [had] patrolled there over 100 days. [Horn was] a certified professional ski patroller and examiner in first aid, toboggan handling, and skiing, and [was] recertified every two years. [Horn was] trained in all aspects of patrolling, including patient care, toboggan transport, and first aid, and [was] tested on these skills [*5]  each year by Heavenly. He receive[d] annual and ongoing on-hill training in all aspects of ski patrol including, but not limited to, toboggan training, toboggan training on steep slopes, first aid, and other areas.

“When [Horn] arrived at the scene, he conducted an assessment of plaintiff’s reported injuries and called for a toboggan to be transported to him. When the toboggan arrived, [Horn] unpacked it and stabilized it. He applied a quick splint to plaintiff’s left leg in accordance with his training and knowledge, [which included] immobilizing the area above and below the injury site, plaintiff’s knee. [Horn] had plaintiff lay down in the toboggan inside a blanket roll. After plaintiff was in the toboggan, [Horn] placed a plastic cover or tarp over her, he placed her equipment on her non-injury side (her right side), and strapped her in using the straps provided on the toboggan.

“Heavenly contends that while [Horn] was skiing down the groomed and limited pitch terrain on Lower Mombo, three snowboarders emerged from the trees, off-piste to his right. [Fn. omitted.] While the snowboarders turned to their right, Heavenly claims the last snowboarder clipped [Horn’s] right ski, causing [*6]  him to fall. Based upon [Horn’s] view, as the snowboarders turned right, they did so on their toe side edge, which put their backs to him. [Horn] tried to avoid a collision with the last snowboarder, but he was unsuccessful, and when he fell the toboggan rolled over. Heavenly alleges that the rollover caused some of plaintiff’s equipment in the toboggin to hit her head.

“Plaintiff, however, contends there was no contact with any of the snowboarders, who she claims were downhill of [Horn]. Instead, plaintiff argues [Horn] lost control of the sled, and he was going too fast and fell. Plaintiff further asserts that [Horn’s] reports indicate the incident did not involve any collision, and the toboggan tumbled instead of simply rolling over. Plaintiff also contends her initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

Heavenly asserts “[t]he rollover caused some of [Martine‘s] equipment in the toboggan to hit her head” while Martine contends her “initial head injuries were caused by the sled tumbling out of control and hitting a tree.”

Discussion

I

Scope of Review

As the California Supreme Court explained in Aguilar v. Atlantic Ridgefield Co. (2001) 25 Cal.4th 826 (Aguilar), “Under summary judgment law, [*7]  any party to an action, whether plaintiff or defendant, ‘may move’ the court ‘for summary judgment’ in his favor on a cause of action (i.e., claim) or defense (Code Civ. Proc., § 437c, subd. (a)) . . . . The court must ‘grant[]’ the ‘motion’ ‘if all the papers submitted show’ that ‘there is no triable issue as to any material fact’ (id., § 437c, subd. (c))–that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations]–and that the ‘moving party is entitled to a judgment as a matter of law’ (Code Civ. Proc., § 437c, subd. (c)). The moving party must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Id., § 437c, subd. (b).) Likewise, any adverse party may oppose the motion, and, ‘where appropriate,’ must present evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Ibid.) An adverse party who chooses to oppose the motion must be allowed a reasonable opportunity to do so. (Id., § 437c, subd. (h).)” (Aguilar, at p. 843.)

“In ruling on the motion, the court must ‘consider all of the evidence’ [*8]  and ‘all’ of the ‘inferences’ reasonably drawn therefrom (id., § 437c, subd. (c)), and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Aguilar, 25 Cal.4th at p. 843.) “[I]f the court concludes that the plaintiff’s evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the defendant[‘s] motion.” (Aguilar, 25 Cal.4th at p. 856.)

” ‘The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.’ (Andalon v. Superior Court, [(1984) 162 Cal.App.3d 600, 604-605].) ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.’ [Citations.] The complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action. [Citation.]” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)

“A defendant . . . has met his . . . burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, [*9]  or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code of Civ. Proc., § 437c, subd. (p)(2).)

We review the record and the determination of the trial court de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003; see also, Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

A motion for a new trial may be sought following an order on summary judgment, and the decision thereon is generally reviewed for an abuse of discretion. (Aguilar, 25 Cal.4th at pp. 858-859.)

II

The Pleadings

Given the law set forth above and to give structure to our opinion, we should first turn to the pleadings in this matter.

As we related earlier, Martine brought a complaint alleging against Heavenly a single cause of action for negligence in that she “injured her knee while skiing and called for ski patrol to transport her to the bottom of the mountain. She was loaded into a sled [*10]  by ski patrol, who may have loaded her improperly. During her transport to the bottom of the mountain, ski patrol negligently failed to maintain control of the sled, causing it to slide down the mountain and into a tree.”

As is apparent, Martine‘s sole cause of action sounds in negligence relying essentially on an allegation that Horn negligently failed to maintain control of the emergency sled in which she was riding, leading to her injuries. At its essence, Heavenly challenges the allegation of negligence arguing that there is no evidence of negligence on Horn’s part and, even if he was simply negligent, that negligence is legally offset by the doctrine of primary assumption of risk. Martine‘s single pleading “delimits” the issues on the motion for summary judgment.

We recognize that Martine also contends that her pleading should be read broadly enough to encompass a claimed injury arising from being dropped when later being loaded on the ski tram. We reject that contention, post, as did the trial court.

Finally, we find that we need not address Martine‘s claim that she presented sufficient evidence on the motion to require a trial as to Heavenly’s negligence in causing her injuries [*11]  (or that Heavenly did not present enough evidence to find there was no triable issue of material fact on the question of negligence) because in this matter we find a defense based on the doctrine of the primary assumption of the risk dispositive.

III

Primary Assumption of the Risk

The trial court found, in part, that Martine voluntarily engaged in the activity of skiing and injured her knee while doing so. The court further found that Martine voluntarily summoned the ski patrol for help and voluntarily accepted the ski patrol’s aid knowing that she and Horn risked interference from, or collisions with, other skiers or snowboarders as they descended the mountain.

As explained in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight):

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ. Code, § 1714.) Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. [Citations.] In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of [*12]  harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. (See generally Annot. (1987) 55 A.L.R.4th 632.) In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Knight, supra, 3 Cal.4th at p. 315.)

Determining “the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” (Knight, supra, 3 Cal.4th at p. 313.)

A.
Martine‘s Injury was Due to a Risk Inherent in the Sport of Skiing

“The risks inherent in snow skiing have been well catalogued and recognized by the courts” including “injuries from variations in terrain, surface or subsurface snow or ice conditions, moguls, bare spots, rocks, trees, and other forms of natural growth or debris” and “collisions with other skiers, ski lift towers, and other properly marked or plainly visible objects and equipment.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1202, italics added.)


Martine argues that she and Horn were not participating in the active sport [*13]  of skiing at the time of the accident. This argument is unpersuasive.

Martine was skiing on a ski run when she apparently hurt her knee and sought and secured assistance from the ski patrol. The possibility that Martine might injure herself while skiing and need assistance descending the mountain is one of the foreseeable risks of the sport of skiing. That one might be injured during that descent on a rescue toboggan are risks inherent in the sport of skiing.

Putting aside Martine‘s unsupported speculation as to the cause of the accident, the facts adequately supported by the evidence on the motion are that the person assisting Martine down the mountain fell after an encounter with snowboarders who emerged from the woods. Falling during skiing is a risk inherent to the sport. (Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 214 [“Falling and thereby being injured or even killed are inherent dangers of skiing”].) And as noted earlier, collisions or near-collisions with other skiers or snowboarders on the mountain are also inherent in the sport of skiing whether one is skiing or being taken off the mountain after being injured while skiing.

We conclude the trial court properly determined that Martine‘s claim for negligence is barred by [*14]  the doctrine of primary assumption of risk.

B. The Common Carrier Issue


Martine also argues primary assumption of the risk does not apply because, in carrying out her rescue from the mountain, the ski patrol was acting as a common carrier.

Whether the ski patroller rescuing Martine is a common carrier within the meaning of Civil Code section 2168 is a matter of law where the facts are undisputed. (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1506 (Squaw Valley) [ski resort operating chairlift is common carrier].) The common carrier determination is significant because if it applies, it would impose a duty of the utmost standard of care. (See Squaw Valley, at pp. 1506-1507.) Specifically, a common carrier must “do all that human care, vigilance, and foresight reasonably can do under the circumstances” (id. at p. 1507) to avoid injuring those that it carries.

Initially, we note that Martine‘s complaint is devoid of any allegations that Heavenly’s ski patroller was acting as a common carrier at the time of her injury, nor does Martine‘s complaint contain facts sufficient to establish the applicability of the common carrier doctrine. Thus, it is unclear whether Martine may use the doctrine’s application to avoid summary judgment on her general negligence claim because Heavenly [*15]  was not required to refute liability on theoretical issues not raised in the complaint. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 793 [“the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint“], italics in original; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [a party seeking to expand issues presented by the complaint must do so by amending the complaint, not by way of opposition papers alone].)

In any event, as recognized in Squaw Valley, Civil Code section 2168 provides the definition of common carrier applicable to tort actions and states “[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages is a common carrier of whatever he thus offers to carry.” (Squaw Valley, supra, 2 Cal.App.4th at p. 1507.)

In deciding whether Heavenly is a common carrier, a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services. (Judicial Council of California Civil Jury Instruction 901; Gradus v. Hanson Aviation (1984) 158 Cal.App.3d 1038, 1048 [applying these factors].)

Here, Martine put forth no facts that Heavenly (1) maintained a business for transporting injured patrons to the bottom of the mountain, [*16]  (2) advertised such service, or (3) charged for that service. Nor did Martine state separate facts alleging that Heavenly offered descent from the mountain to the public generally. Accordingly, Martine‘s common carrier argument necessarily fails. (See Blackman v. Burrows (1987) 193 Cal.App.3d 889, 894-895 [refusing to consider factual contentions contained within the memorandum in opposition, but not set forth in a separate statement of facts].) Further, descent from a mountain via rescue sled operated by ski patrol is distinguishable from the ski lifts discussed in Squaw Valley because unlike the lifts that indiscriminately “carry skiers at a fixed rate from the bottom to the top” of the mountain, rescue patrollers, at a patroller’s discretionary election, transport injured skiers without any apparent compensation to the bottom of the mountain. (Compare Squaw Valley, supra, 2 Cal.App.4th at p. 1508.)

At oral argument, Martine relied upon Regents of the University of California v. Superior Court (2018) 4 Cal.5th 607 (Regents) to argue Heavenly was liable because either it acted as a common carrier by providing the ski patrol service or it had a special relationship with Martine like a common carrier has with its passengers. Regents does not support either argument. First, the case does not concern a common carrier’s duty; rather, it decided [*17]  whether a university has a special relationship with its students requiring it to protect them from foreseeable violence. (Id. at p. 620.) Nothing in the case suggests a ski resort becomes a common carrier by providing ski patrol to remove injured skiers from the mountain.

Second, Regents cannot be read to create a special relationship imposing an affirmative duty to warn and protect others of inherent dangers where the plaintiff assumes a risk of injury by intentionally engaging in dangerous activity. By assuming the risk, the plaintiff negates the defendant’s duty of care as well as any affirmative duty to protect. “By an express assumption of risk, the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant’s duty of care, and acknowledging the possibility of negligent wrongdoing.” (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7.) It is no surprise that Regents did not discuss assumption of the risk, as attending a university, unlike skiing, is not an inherently dangerous activity. Regents is irrelevant to this case.


Martine relied on another case at oral argument, Hass v. RhodyCo Productions (Aug. 13, 2018, A142418) __ Cal.App.5th __ [2018 WL 3830002], that also does not aid her. There, [*18]  the court of appeal ruled the primary assumption of the risk doctrine did not bar the plaintiffs’ claim for gross negligence arising from a foot race operator’s alleged breach of its duty to minimize the race’s extrinsic risks without altering the race’s nature. (Id. at p. 14.) The case does not apply here, as Martine did not contend in opposing the summary judgment motion that Heavenly was grossly negligent.

Because we have found the trial court properly granted summary judgment of Martine‘s claims through application of the doctrine of assumption of risk, we need not address Martine‘s argument that the trial court erred in excluding evidence intended to show that Martine‘s rescuer’s conduct was merely negligent under either principles of ordinary negligence or application of the law of common carriers.

IV

The Scope and Amendment of Martine‘s Complaint

Martine argues the trial court erred in not allowing her to amend her complaint to allege negligence and damages arising from a second injury she incurred the same day while being taken off the mountain. Again, we are unpersuaded.

In an attempt to circumvent the application of the doctrine of primary assumption of risk, Martine argues that her complaint [*19]  should have been liberally construed to include a second injury occurring while waiting for the tram, offering as a rationale for that argument that her complaint invoked “all head trauma damages” sustained on the day of the accident.

We note first that Martine never filed a motion to amend her complaint nor did she offer a proposed amended pleading.

The allegations of the complaint as set forth, supra, clearly concern only the accident on the ski run wherein it is alleged that her rescuer negligently lost control of the rescue sled thus injuring Martine when she hit a tree. There is no allegation that she sustained additional injuries when she was later dropped when being loaded on the tram. We reject, as did the trial court, her late-to-dinner effort to significantly expand her factual allegations beyond the complaint she filed, which expansion necessarily would import new legal theories and new defenses into the lawsuit she chose to file.

V

The New Trial Motion

Martine argues the trial court erred in denying her new trial motion. Because the decision of the trial court is presumptively correct, Martine has the burden of overcoming that presumption by affirmatively demonstrating trial court [*20]  error. (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 683 [ruling on new trial motion is presumptively correct unless error established gives rise to a presumption of prejudice].)

This includes the duty to separately identify under appropriate headings each assertion of trial court error. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Contrary to this duty, Martine placed argument concerning her motion for a new trial under the heading “Heavenly Has the Substantive Burden on Appeal to Establish that it is Entitled to Summary Judgment.”

Whether the trial court erred in granting the motion for summary judgment is a separate question from whether it also erred in denying the new trial motion. (Code of Civ. Proc., §§ 437c, 657.) Thus, Martine‘s headings and poor organization undermine this court’s review and cause us to question whether Martine is entitled to review of these assertions at all. (See Phillips v. Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1077 [challenge to authenticity not subsumed in heading concerning relevancy and prejudice].)

Putting this issue aside, Martine‘s arguments for a new trial may be divided into two categories: (1) those waived because they were not raised in the trial court and (2) those forfeited because Martine has failed to provide cogent facts and legal analysis demonstrating trial court error.

” ‘Appellate courts are loath to reverse [*21]  a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. . . .’ [Citations.]” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [appellant’s failure to raise specific challenges in trial court resulted in their forfeiture on appeal].) Therefore, we will not consider Martine‘s claims concerning irregularities in the proceedings and/or surprise which ordinary prudence would not guard against because Martine‘s motion in the trial court did not argue these issues.

Further, “[i]t is the responsibility of the appellant, here [Martine], to support claims of error with meaningful argument and citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) In addition, citing cases without any discussion of their application to the present case results in forfeiture. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482-483.) We are not required to examine undeveloped claims or to supply arguments for the litigants. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546 [it is not [*22]  the court’s function to serve as the appellant’s backup counsel].)” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)

Martine‘s remaining new trial arguments concerning the discovery of new evidence, the sufficiency of the evidence, the trial court’s decision being against the law, and that there was an error in law are forfeited for failure to supply cogent and supported argument with citations to the record affirmatively demonstrating error.

Disposition

The judgment is affirmed. Heavenly is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)


HULL , J.

We concur:

BLEASE , Acting P. J.

ROBIE , J.

 


Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998)

Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998)
Eric Bayer, Plaintiff-Appellant, v. Crested Butte
Mountain Resort, Inc., Defendant-Appellee.
No. 97SA145
Supreme Court
May 18, 1998
Petition for Rehearing DENIED. EN BANC. June 22, 1998
Certification of Questions of Law from the United States Court of
Appeals for the Tenth Circuit Pursuant to C.A.R. 21.1
CERTIFIED QUESTIONS ANSWERED

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Purvis, Gray, Schuetze & Gordon, Robert A. Schuetze, Glen F. Gordon, Boulder, Colorado, Attorneys for Plaintiff-Appellant.

White & Steele, P.C., Glendon L. Laird, John M. Lebsack, Peter W. Rietz, Denver, Colorado, Attorneys for Defendant-Appellee.

EN BANC
JUSTICE KOURLIS dissents, and CHIEF JUSTICE VOLLACK joins in the dissent.
JUSTICE HOBBS delivered the Opinion of the Court.

[1] Pursuant to C.A.R. 21.1, we agreed to answer the following questions certified to us by the United States Court of Appeals for the Tenth Circuit

What standard of care governs the duty owed by ski lift operators in Colorado to users of those lifts in the winter season?

Separately, and more particularly, does the Colorado Passenger Tramway Safety Act and/or the Colorado Ski Safety and Liability Act preempt or otherwise supersede the pre-existing Colorado common law standard of care governing the duty owed by ski lift operators to users of those lifts in the winter season?

[2] These questions arise in connection with Eric Bayer’s negligence suit against Crested Butte Mountain Resort, Inc. (Crested Butte) involving serious injuries he sustained after falling approximately 30 feet from a ski lift at the Crested Butte ski area.

[3] The federal district court concluded that the Colorado Passenger Tramway Safety Act (Tramway Act) and the Colorado Ski Safety and Liability Act (Ski Safety Act) have substituted a lesser degree of care for ski lift operators than the highest degree of care, thus superseding our holding in Summit County Development v. Bagnoli, 166 Colo. 27, 40, 441 P.2d 658, 664 (1968). Based on its ruling that a standard of ordinary care applies, the district court granted summary judgment and dismissed the case.

[4] In answering the certified questions, we reaffirm our holding in Bagnoli. A ski lift operator must exercise the highest degree of care commensurate with the lift’s practical operation, regardless of the season.

I.

[5] Eric Bayer, a 19-year-old college student and resident of Florida, was skiing at the Crested Butte ski area on December 31, 1992. He boarded the Paradise Lift, a double-chair, center pole lift, with a person whom he did not know. This lift was not equipped with restraining devices on the chairs. Bayer rode the Paradise Lift for about 100 yards, lost consciousness, slumped in his chair, and slid feet first to the ground below. He suffered serious and permanent head injuries from the fall. The cause of his unconsciousness remains unknown.

[6] The Passenger Tramway Safety Board (Board), which regulates ski lifts in Colorado, requires the use of restraining devices during summer lift operation but has no companion requirement for winter operation. Bayer does not dispute that Crested Butte complied with applicable Board regulations.

[7] The existence and scope of a legal duty of care is a question of law. See United Blood Servs. v. Quintana, 827 P.2d 509, 519 (Colo. 1992). In Bagnoli, we determined that a ski lift operator must exercise the highest degree of care commensurate with practical operation of a lift. Bagnoli, 166 Colo. at 40, 441 P.2d at 664. In answering the certified questions, we must determine whether the Tramway Act or the Ski Safety Act, or the two in combination, have modified or preempted our holding in Bagnoli.[fn1]

II.

[8] We hold that the Tramway Act and the Ski Safety Act, alone or in combination, have not preempted or superseded the common law standard requiring a ski lift operator to exercise the highest degree of care commensurate with the practical operation of the ski lift. The General Assembly did not intend by either act to substitute a standard of care lesser than the highest degree.

[9] Under the Tramway Act, the primary responsibility for the design and operation of ski lifts, consistent with our holding in Bagnoli, rests with the operators; the board is to adopt reasonable standards for the industry, but these are not intended to preclude common law negligence actions or the duty to exercise the highest degree of care. The Ski Safety Act establishes the relative duties of skiers and ski area operators on the ski slopes, limits damage awards, and precludes liability claims resulting from the inherent dangers and risks of skiing, while expressly excluding ski lift accidents from these limitations.

A.

[10] The Highest Degree of Care

[11] A basic proposition of tort law is that the amount of care demanded by the standard of reasonable conduct must be in proportion to the risk; the greater the danger, the higher is the degree of caution which the person owing the duty must exercise. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 34, at 208-09 (5th ed. 1984). As we said in Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587 (Colo. 1984), “It is axiomatic in the law of negligence that the greater the risk, the greater the amount of care required to avoid injury to others.”

[12] Our holding in Bagnoli squarely placed on lift operators the duty to exercise the highest degree of care consistent with the practical operation of the ski lift because (1) passengers give up their freedom of action and movement, surrendering themselves to the care and custody of the ski lift operator, (2) there is usually nothing passengers can do to cause or prevent the accident, and (3) the operator has exclusive possession and control of the ski lift. See Bagnoli, 166 Colo. at 40, 441 P.2d at 664. We derived these factors directly from our prior decision in Lewis v. Buckskin Joe’s, Inc., 156 Colo. 46, 56, 396 P.2d 933, 938-39 (1964), wherein we held that amusement ride operators must “exercise the highest degree of care commensurate with the practical operation” of the ride.[fn2]

[13] Underlying our adoption in Bagnoli of the Lewis factors is that ski lifts are operated at considerable height from the ground over rough, elevated, often precipitous Colorado terrain. A fall from the lift can be calamitous. Passengers entrust their safety to the lift operators. Operation of a ski lift thus entails both greater danger and greater responsibility than circumstances involving ordinary care.

[14] In addressing the federal district court’s conclusion that the Tramway Act and the Ski Safety Act supersede Bagnoli, we first discuss the legislative design and purposes of the two acts.

B.

[15] The Tramway Act And The Ski Safety Act [16] The statutory canons of construction require us to give effect to the plain meaning of statutory enactments; we must employ rules of grammar and common usage and accord to technical terms and legislative definitions their particular meaning. See 2-4-101, 1 C.R.S. (1997).

[17] The Colorado General Assembly initially addressed ski safety in Colorado through the 1965 Tramway Act. The act’s purpose is to assist in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.[fn3] See 25-5-701, 8 C.R.S. (1997). The act establishes a Board “to prevent unnecessary mechanical hazards” and to “assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of, passenger tramways.” 25-5-701, 8 C.R.S. (1997). The General Assembly has confirmed that, notwithstanding the powers and duties of the Tramway Board, “[t]he primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators” of passenger tramway devices. 25-5-705, 8 C.R.S. (1997) (emphasis added).

[18] The legislature has empowered the Board[fn4] with rulemaking and enforcement authority to carry out its functions. The Board is authorized, but not required, to utilize the standards adopted by the American National Standards Institute (ANSI), see 25-5-704, 8 C.R.S. (1997), and has authority to conduct investigations and inspections, to discipline ski area operators, to issue licenses, to order emergency shut downs, and to engage in other functions related to the purpose of the Tramway Act, see 25-5-704 to -716, 8 C.R.S. (1997).[fn5] The Board by regulation has adopted the ANSI 1992 standards, with some additions, revisions, and deletions. See Rule 0.1, 3 C.C.R. 718-1 at 1.

[19] Building on the construct of the Tramway Act, the General Assembly followed with the Ski Safety Act in 1979. This act supplements the Tramway Act’s focus on ski lifts, but its principal function is to define the duties of ski areas and skiers with regard to activities and features on the ski slopes. See 33-44-102, 9 C.R.S. (1997). In 1990 amendments to the Ski Safety Act, the legislature limited the liability of ski area operators for accidents on the slopes involving the “inherent dangers and risks of skiing.” See ch. 256, sec. 7, 33-44-112, 1990 Colo. Sess. Laws, 1543; see also ch. 256, sec. 1, Legislative Declaration, 1990 Colo. Sess. Laws, 1540; Graven v. Vail Assocs., 909 P.2d 514, 517-18 (Colo. 1995).

[20] Included within the inherent risks of skiing are dangers or conditions that are an “integral part of the sport of skiing,” such as weather, snow conditions, collisions with natural and man-made objects, and terrain variations. See 33-44-103(3.5), 9 C.R.S. (1997). The skier must know the range of his or her ability, ski in control, maintain a proper lookout while skiing, avoid collisions with other skiers, and not use a ski slope or trail or passenger tramway while impaired by alcohol or other controlled substances. See 33-44-109, 9 C.R.S. (1997). The statute provides that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” 33-44-112, 9 C.R.S. (1997). See also Graven, 909 P.2d at 518-21.

[21] For their part, ski area operators must maintain a sign system, including signs indicating the level of difficulty of the area’s slopes and trails, notices that warn of danger areas, closed trails, and ski area boundaries, and the marking of man-made structures that are not readily visible to skiers. See 33-44-107, 9 C.R.S. (1997). They must undertake safety precautions related to the operation of equipment such as snowmobiles and motorized snow-grooming vehicles on slopes and trails within ski area boundaries. See 33-44-108, 9 C.R.S. (1997).

[22] The Ski Safety Act also addresses aspects of ski lift operation through several provisions which regulate passenger conduct. Passengers must have sufficient physical dexterity to use a lift safely and are required to observe certain conduct when embarking, riding, and disembarking a ski lift. See 33-44-105, 9 C.R.S. (1997). They may not move outside designated areas, throw objects from the tramway, engage in conduct that could cause injury to others, or disobey instructions from the ski area operator. See id. On the other hand, ski area operators must maintain a sign system including specific instructions such as “Keep Ski Tips Up,” and “Unload Here.” See 33-44-106, 9 C.R.S. (1997).

[23] Any violation of the statute’s provisions applicable to skiers constitutes negligence on their part; in tandem, any violations by a ski area operator of the Ski Safety Act or the Tramway Act constitute negligence as to them. See 33-44-104, 9 C.R.S. (1997). The effect of these statutory provisions is to make violations of the Ski Safety Act and/or Tramway Act negligence per se.

C.

[24] Effect Of The Tramway Act And The Ski Safety Act On The Degree Of Care Applicable To Ski Lift Operators

[25] Of controlling significance in answering the certified questions of law is that we infer no abrogation of a common law right of action absent clear legislative intent. See Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997); Farmers Group, Inc. v. Williams, 805 P.2d 419, 423 (Colo. 1991). If the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent “expressly or by clear implication.” McMinn, 945 P.2d at 408.

[26] Crested Butte contends, and the federal district court determined, that the legislature has replaced the high standard we announced in Bagnoli with a standard of ordinary care. In arguing for a duty of care lesser than the highest degree, Crested Butte relies on the 1965 provision in the Tramway Act exempting ski lifts from laws of the state applicable to “common carriers.” It also argues, in the alternative, that the “legislature’s enactment of a comprehensive statutory and regulatory scheme for safety requirements at ski areas manifests the intent to preempt the field of common law liability, especially where the claim is that a particular safety device was not installed on a lift.”

[27] To the contrary, we conclude that the Tramway Act and the Ski Safety Act, together with the Bagnoli standard of care, provide a comprehensive Colorado framework which preserves ski lift common law negligence actions, while at the same time limiting skier suits for inherent dangers on the slopes and defining per se negligence for violation of statutory and regulatory requirements.

1.

[28] The Common Carrier Provision Of The Tramway Act [29] The Tramway Act states that Provisions in lieu of others. The provisions for regulation, registration, and licensing of passenger tramways and the area operators thereof under this part 7 shall be in lieu of all other regulations or registration, or licensing requirements, and passenger tramways shall not be construed to be common carriers within the meaning of the laws of this state.

[30] 25-5-717, 8 C.R.S. (1997) (emphasis added.)[fn6]

[31] We must read and interpret statutory language in its context. See 2-4-101, 1 C.R.S. (1997) (“Words and phrases shall be read in context.”). The phrase concerning common carriers in section 25-5-717 is an integral part of a provision dealing with regulation, registration, and licensing of passenger tramways. Its evident purpose in the context of the “meaning of the laws of this state” is to prohibit any board or agency, other than the Tramway Board, from registering, regulating, or licensing ski lifts. For example, ski lifts are not to be considered common carriers subject to Public Utilities Commission (PUC) jurisdiction. Without this provision, ski lifts arguably would have been under the very broad statutory definition of “common carriers” for regulatory purposes. See 40-1-102(3)(a)(I), 11 C.R.S. (1997).[fn7]

[32] We did not rely in Bagnoli on the notion that ski lift operators are common carriers when enunciating the applicable standard of care. Rather, we applied the Lewis factors to ski lift operators because of the degree of control they exercise over passengers, the relative powerlessness of a passenger to secure his or her own safety under the circumstances, and the consequent state of dependence and trust which a passenger must place in the lift operators. In Lewis, we said It is not important whether defendants were serving as a carrier or engaged in activities for amusement. The important factors are, the plaintiffs had surrendered themselves to the care and custody of the defendants; they had given up their freedom of movement and actions; there was nothing they could do to cause or prevent the accident. Under the circumstances of this case, the defendants had exclusive possession and control of the facilities used in the conduct of their business and they should be held to the highest degree of care.

[33] Lewis, 156 Colo. at 57, 396 P.2d at 939 (emphasis added). One of the justices vigorously dissented as to the degree of care expected, on the basis that “this is not a `carrier case.'” Id. at 72, 396 P.2d at 947 (McWilliams, C.J., dissenting).

[34] In Bagnoli, we nevertheless adhered to the basic proposition that enunciating the degree of care to be exercised depends on the danger and degree of responsibility involved. We emphasized that the duty in negligence actions “remains one of exercising due care, and due care depends upon the attendant circumstances.” 166 Colo. at 38-39, 441 P.2d at 664 (emphasis added). We held that the attendant circumstances of ski lift operation, like amusement rides, demand the highest degree of care. We pointed out that other jurisdictions had imposed on ski lift operators a common carrier status in requiring the higher duty of care, but that, in Colorado, common carrier status made no difference in this regard in light of the Lewis factors. See Bagnoli, 166 Colo. at 39-40, 441 P.2d at 664.[fn8] Thus, in Bagnoli, we held that a Colorado jury instruction need not designate a ski lift operator as a common carrier. Because of the existence of the above described rule of Lewis, supra, and the nature and purpose of our statutes pertaining to common carriers at the time of this accident, there was no need to designate the ski lift operator as a common carrier in Instruction No. 15.

[35] Id. We said that the inclusion of the “common carrier” description in the actual instruction delivered to the jury in Bagnoli was of no consequence, since the paramount purpose of Instruction No. 15 was to convey to the jury the rule of law that a chair ski lift operator must exercise the highest degree of care commensurate with the practical operation of the ski lift.

[36] Id., 441 P.2d at 664-65 (emphasis added).

[37] Thus, while common carriers may be required to exercise the highest degree of care towards their passengers, it does not follow that transport device operators who are not classified as common carriers are dispensed from exercising the highest degree of care when the attendant circumstances warrant such caution.

2.

[38] Legislative Action Subsequent To Bagnoli

[39] The legislature has carefully chosen how to let stand, supplement, or limit application of the common law in the arena of ski safety; it has chosen not to alter the standard of care applicable to ski lift safety. In 1990, the General Assembly limited the liability of ski area operators for claims involving the inherent dangers and risks of skiing. However, the amendments expressly prevent ski lift operators from claiming that the limitation on a ski area’s liability applies to causes of action arising from ski lift accidents. See 33-44-103(3.5), 33-44-112, 9 C.R.S. (1997).[fn9] As further confirmation of the intent to exclude ski lift accidents from the liability limitations, the bill’s chief sponsor, Representative Scott McInnis, testified that the 1990 amendments to the Ski Safety Act would not affect common law tort liability as it related to ski lifts: “This bill does not exclude a ski area from negligence and the liability it faces with ski lifts.” House floor debate on S.B. 80, Mar. 21, 1990.

[40] Another example of the General Assembly’s careful distinctions between ski slope and ski lift accident liability is found in section 33-44-113. This provision limits the amount of damages recoverable from a ski lift operator for accidents that occur while skiing but specifically excludes damages “associated with an injury occurring to a passenger while riding on a passenger tramway.” 33-44-113, 9 C.R.S. (1997).[fn10] Thus, in both a limitation of liability provision and in a limitation of damages provision related to skiing, the General Assembly chose to write an exception preserving the liability and damages law applicable to ski lift accidents.

[41] The legislature has amended the Tramway Act eleven times since the Bagnoli decision: in 1973, 1976, 1977, 1979, 1983, 1985, 1986, 1987, 1988, 1991 and 1993.[fn11] None of those amendments altered the ski lift operator liability rules or shifted to the Tramway Board the operator’s “primary responsibility for design, construction, maintenance, operation, and inspection.” 25-5-705, 8 C.R.S. (1997). The Ski Safety Act was passed in 1979[fn12] and substantively amended in 1990,[fn13] with cross references being made to the Tramway Act. The General Assembly did not choose to overrule Bagnoli on either of these occasions.

3.

[42] Statutory Preemption Of Common Law Causes Of Action And Standards Of Care

[43] Crested Butte further suggests that the Tramway Act and the Ski Safety Act together manifest the legislature’s intent to preempt the field of ski lift safety and, thus, abrogate common law negligence actions and/or the applicable standard of care. Crested Butte insists that the following provisions, which make violations of the Tramway Act and the Ski Safety Act negligence per se, replace common law liability except as provided therein

Negligence — civil actions. . . .

(2) A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

[44] 33-44-104(2), 9 C.R.S. (1997) (emphasis added), and, Inconsistent law or statute. Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.

[45] 33-44-114, 9 C.R.S. (1997).

[46] We disagree with Crested Butte’s proposed construction of these provisions. In section 33-44-104(2),[fn14] the legislature determined that any violation of the Tramway Act, or Board regulations, would constitute negligence for purposes of a tort suit based on an alleged violation. A statutory provision which defines violation of a statute or rule as negligence per se is not necessarily inconsistent with maintenance of a common law negligence action, and the creation of a statutory remedy does not bar preexisting common law rights of action, in the absence of clear legislative intent to negate the common law right. See McMinn, 945 P.2d at 408; see also Trigg v. City & County of Denver, 784 F.2d 1058, 1059-60 (10th Cir. 1986) (in ski lift accident case, both common law negligence and negligence per se Colorado jury instructions may be required, if justified by sufficient evidence). We conclude that section 33-44-104(2) demonstrates no indication that the legislature wished to bar, rather than supplement, common law actions in ski lift cases.

[47] Crested Butte contends that the Tramway Act’s provisions (1) establishing a Board to “assure that . . . accepted safety devices . . . are provided for,” see 25-5-701, 8 C.R.S. (1997), and (2) empowering the Board to “establish reasonable standards of design and operational practices,” see 25-5-709, 8 C.R.S. (1997), necessarily imply that the General Assembly intended to preempt the field of common law liability in ski lift cases. See Lunsford v. Western States Life Ins., 908 P.2d 79, 87 (Colo. 1995) (stating that “resort to common law principles is preempted regarding issues to which the . . . statute expressly applies or where there are other pertinent statutory provisions. However, if the . . . statute is inapplicable and no other applicable statutes exist, we will rely on the common law”).

[48] The primary responsibility for design and operation of a ski lift rests with the operator. The standards adopted by the Board are intended to be reasonable regulatory standards, not to comprise the operator’s sole duty in regard to passenger safety. Compliance with these standards is evidence of due care but not conclusive evidence.

[49] In our electricity cases, for example, we have explained that regulatory standards for the safe operation of a dangerous instrumentality do not preclude a finding of negligence under the common law. For example, in City of Fountain v. Gast, 904 P.2d 478, 480 (Colo. 1995), and Yampa Valley Electric v. Telecky, 862 P.2d 252, 257-58 (Colo. 1993), we held that, despite the existence of comprehensive National Electric Safety Code standards for the industry, a person may maintain a negligence action against a utility for breach of a common law duty of care. In this state, electric utilities must exercise the highest degree of care to protect the public. See Gast, 904 P.2d at 480.

[50] Evidence of a defendant’s compliance with industry standards, while relevant and admissible for determining whether the defendant breached its duty of care, is not conclusive evidence of due care. See Telecky, 862 P.2d at 257 (compliance with NESC standards is only a part of the determination that the jury was required to make); see also Gast, 904 P.2d at 480 (compliance with NESC standards does not conclusively establish that the highest degree of care was exercised, but is merely one factor to be considered in determining the highest degree of skill and care); Blueflame Gas v. Van Hoose, 679 P.2d 579, 591 (Colo. 1984) (compliance with an administrative safety regulation by propane supplier does not conclusively establish that the highest degree of care was exercised, but is merely one circumstance to be considered).[fn15]

[51] Although the Restatement (Second) of Torts does not have the force of law, we may look to it as a summary of guiding legal principles. The Restatement (Second) of Torts 288C (1965), supports our conclusion that additional tort remedies remain available despite statutory regulation of an industry “Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions.” In the comment to this section, the Restatement explains that, “Where a statute, ordinance or regulation is found to define a standard of conduct . . . the standard defined is normally a minimum standard, applicable to the ordinary situations contemplated by the legislation. This legislative or administrative minimum does not prevent a finding that a reasonable man would have taken additional precautions where the situation is such as to call for them.” Id. 288C, cmt. a.

[52] We reject Crested Butte’s argument that section 285 rather than section 288C of the Restatement should assist our reasoning in this case. Section 285 states that the determination of the standard of conduct of a reasonable person applicable to a given case may be: (a) established by a legislative enactment or administrative regulation which so provides; or (b) adopted by the court from a legislative enactment or administrative regulation which does not so provide; or (c) established by judicial decision; or (d) applied to the facts of the case by the trial judge or the jury if there is no such enactment, regulation, or decision. See Restatement (Second) of Torts 285 (1965).

[53] Crested Butte’s analysis fails to account for the logic of section 288C, which states that a standard of conduct defined by statute, ordinance, or regulation as described in section 285 is normally a “minimum standard,” and does not prevent a finding that a reasonable person would have taken additional precautions when the situation requires. Id. 288C.

[54] If Crested Butte could point to some part of the Tramway Board’s statutes or regulations which prohibits it from taking additional safety precautions, or a patent conflict preventing utilization of a particular safety device under the circumstances, its argument that Board standards preempt common law negligence actions might have merit. For example, in Jefferson County School District R-1 v. Gilbert, 725 P.2d 774, 778-79 (Colo. 1986), we held that a city met its duty of care to make streets safe because it met engineering standards prescribed by statute; the statute specifically prohibited the city from installing a traffic signal unless an intersection met certain criteria. Thus, we held that the city did not have a duty to install traffic devices where the statute specifically prohibited the city from installing them except under certain conditions. Here, although the Board required restraining devices during summer operation and not winter, its regulations did not prohibit operation with restraining devices during winter operation.

[55] Crested Butte also asserts that the Bagnoli standard, if it still applies, should be limited to ski lift negligence actions based on operational errors or defects in equipment and not to design of the lift. Although the facts in Bagnoli related to operation of the lift in the loading procedure and not the design of the lift, section 25-5-705 of the Tramway Act affirms the ski lift operator’s primary responsibility for “design, construction, maintenance, operation, and inspection,” without restriction to the season of operation. The General Assembly has not stated in this regard that the operator’s duty is limited to exercising ordinary care. The Lewis and Bagnoli factors are applicable to each of these components of ski lift safety, and we hold that the ski lift operator must exercise the highest degree of care in regard to each.

[56] A differential standard between operation and design could discourage lift operators from adopting safer designs. Operators would be held to Bagnoli’s higher standard when operating with new safety devices, but a lower standard when choosing to stay with existing equipment. Adoption of Crested Butte’s argument that the Tramway Act and Ski Safety Act preempt common law liability would entail no responsibility on the part of ski operators to ensure safe design, other than to comply with the Board’s regulations. This notion is contrary to the legislature’s intent in assigning the primary responsibility for design to the operators, as well as contrary to a fundamental precept of tort law — that conduct adverse to evolving safety norms should not be rewarded. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 33, at 194-95 (5th ed. 1984).

III.

[57] Answers To Certified Questions

[58] The Tramway Act and the Ski Safety Act do not contain express language or a clear implication to preempt common law actions or the standard of care for ski lift accident cases; rather, they evidence the opposite implication. The legislature’s intent in the Tramway Act is to “assist in safeguarding life, health, property, and the welfare of this state.” See 25-5-701, 8 C.R.S. (1997) (emphasis added). “The primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators of passenger tramway devices.” 25-5-705, 8 C.R.S. (1997). In the context of common law actions, our role has been to enunciate the degree of care which ski lift operators must exercise. Ordinary care is not applicable; the factors of passenger safety and operator control attendant to operation of a ski lift require the operator to exercise the highest degree of care. The legislature, despite numerous occasions in the adoption and amendment of the two acts, has not altered the applicability of the Bagnoli standard.

[59] We therefore answer the certified questions as follows: we hold that the standard of care applicable to ski lift operators in Colorado for the design, construction, maintenance, operation, and inspection of a ski lift, is the highest degree of care commensurate with the practical operation of the lift. Neither the Tramway Act nor the Ski Safety Act preempt or otherwise supersede this standard of care, whatever the season of operation.

[60] JUSTICE KOURLIS dissents, and CHIEF JUSTICE VOLLACK joins in the dissent.

[fn1] Of course, we do not determine whether Crested Butte breached its duty of care or any other issue remaining in the federal court litigation.

[fn2] Decided after passage of the Tramway Act based on an accident occurring before its passage, Bagnoli has been the law of Colorado for the last 30 years. The Colorado Jury Instructions include the following summary of its holding

12:13 AMUSEMENT DEVICES AND SKI LIFTS DUTY OF CARE WHERE USER LACKS FREEDOM OF MOVEMENT It is the duty of the (owner)(operator) of an (amusement device)(ski lift) to exercise the highest degree of care a reasonably careful person could exercise under the same or similar circumstances, in keeping with the practical operation of such a device, for the safety of any person using the device with the (owner’s)(operator’s) express or implied permission.

The failure to exercise such care is negligence. CJI-Civ 3d

12:13 at 98. This instruction is used in ski lift and amusement ride cases and for “those kinds of devices which, to use, the user is required to give up his or her freedom of movement and control of the situation and submit him or herself to the control of the operator.” Id. at 99. The Instruction’s “Notes on Use” state that neither the Passenger Tramway Safety Act nor the Ski Safety and Liability Act changed the applicability of the instruction to ski lifts, except that a negligence per se instruction will be used in cases involving a violation of the Ski Safety Act or regulations of the Board. See id. Although the content of a Colorado Jury Instruction is not legally definitive, its long and common usage is persuasive on the matter of being a correct summary of the law. See Wade v. Olinger Life Ins. Co., 192 Colo. 401, 409 n. 7, 560 P.2d 446, 452 n. 7 (1977). [fn3] A passenger tramway is “a device used to transport passengers uphill on skis, or in cars on tracks, or suspended in the air by the use of steel cables, chains, or belts, or by ropes, and usually supported by trestles or towers with one or more spans.” 25-5-702(4), 8 C.R.S. (1997).

[fn4] The Board is comprised of one member representing the U.S. Forest Service and six members appointed by the governor, two representing the ski industry, two representing the public at large, and two members with experience in the tramway industry, to regulate passenger tramway devices. See 25-5-703, 8 C.R.S. (1997).

[fn5] The power and duties of the tramway board were specifically enumerated and reorganized into separate sections in the 1993 amendments to the tramway act. See ch. 267, secs. 7-8, 25-5-704 to -719, 1993 Colo. Sess. Laws, 1536-44.

[fn6] Section 25-5-718 was repealed and recodified as section 25-5-717 by the 1993 amendments to the Tramway Act. See ch. 267, sec. 8, 1993 Colo. Sess. Laws, 1538 & 1543. The provisions are nearly identical, and we refer to the most recent codification.

[fn7] “Common carrier” is defined in the public utilities statute as: “Every person directly or indirectly affording a means of transportation, or any service or facility in connection therewith, within this state by motor vehicle, aircraft, or other vehicle whatever by indiscriminately accepting and carrying for compensation passengers between fixed points or over established routes or otherwise . . . .” 40-1-102(3)(a)(I), 11 C.R.S. (1997).

[fn8] Courts in other jurisdictions have addressed the issue of the duty of care owed by ski lift operators, with widely varying results. Some jurisdictions have stated that ski lifts constitute common carriers for purposes of tort liability. See Squaw Valley Ski Corp. v. Superior Court, 3 Cal.Rptr.2d 897, 900 (Cal.App. 1992) (ski lift is a common carrier for tort purposes); D’Amico v. Great American Recreation, Inc. 627 A.2d 1164, 1166 (N.J. Super. Law Div. 1992) (ski area operators are common carriers in the operation of ski lifts). But see McDaniel v. Dowell, 26 Cal. Rptr. 140 (Cal.App. 1962) (rope tow not a common carrier for tort liability purposes).

Whether or not they considered ski lifts to be common carriers, courts have differed as to the degree of care ski lift operators must exercise. Some states require the highest degree of care commensurate with a ski lift’s practical operation, see Hunt v. Sun Valley Co., 561 F.2d 744, 746 (9th Cir. 1977) (applying Idaho law); Fisher v. Mt. Mansfield Co., 283 F.2d 533, 534 (2d Cir. 1960) (applying Vermont law); D’Amico, 627 A.2d at 1166-67; Squaw Valley, 3 Cal.Rptr.2d at 899-900, and other states require only ordinary care, see Pessl v. Bridger Bowl, 524 P.2d 1101, 1107 (Mont. 1974); Bolduc v. Herbert Schneider Corp., 374 A.2d 1187 (N.H. 1977); Friedman v. State, 282 N.Y.S.2d 858, 860 (Ct. Cl. 1967).

The question of the degree of care owed by ski lift operators to passengers is grounded in the common law and statutes particular to each state. We look to Colorado law as the basis for our determination that the highest degree of care applies to ski lift operators in this state.

[fn9] Section 33-44-103(3.5) provides in pertinent part:

Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

[fn10] Section 33-44-113 provides:

The total amount of damages which may be recovered from a ski area operator by a skier who uses a ski area for the purpose of skiing or for the purpose of sliding downhill on snow or ice on skis, a toboggan, a sled, a tube, a ski-bob, a snowboard, or any other device and who is injured, excluding those associated with an injury occurring to a passenger while riding on a passenger tramway, shall not exceed one million dollars, present value, including any derivative claim by any other claimant, which shall not exceed two hundred fifty thousand dollars, present value, and including any claim attributable to noneconomic loss or injury, as defined in sections 13-21-102.5(2) C.R.S., whether past damages, future damages, or a combination of both, which shall not exceed two hundred fifty thousand dollars.

(Emphasis added.)

[fn11] See ch. 395, sec. 29, 66-25-9, 1973 Colo. Sess. Laws 1373; ch. 126, secs. 1-10, 1976 Colo. Sess. Laws 660-63; ch. 354, secs. 1-16, 1977 Colo. Sess. Laws 1288-92; ch. 433, secs. 120-122, 25-5-708 to -710, 1979 Colo. Sess. Laws 1661; ch. 315, secs. 1-7, 1983 Colo. Sess. Laws 1071-73; ch. 101, sec. 23, 25-5-717, 1985 Colo. Sess. Laws 411; ch. 193, secs. 1-10, 1986 Colo. Sess. Laws 974-78; ch. 172, sec. 83, 25-5-710, 1987 Colo. Sess. Laws 971; ch. 36, sec. 11, 25-5-710, 1988 Colo. Sess. Laws 317; ch. 301, sec. 40, 25-5-710, 1991 Colo. Sess. Laws 1917-18; ch. 267, secs. 1-11, 1993 Colo. Sess. Laws 1532-44.

[fn12] See ch. 323, secs. 1-3, 1979 Colo. Sess. Laws 1237-44.

[fn13] See ch. 256, secs. 1-11, 1990 Colo. Sess. Laws 1540-44.

[fn14] Section 33-44-104(2) was amended in 1994 to refer to section 25-5-704(1)(a) of the Tramway Act instead of section 25-5-710(1)(a) because of the 1993 amendments to the Tramway Act. See ch. 276, sec. 74, 33-44-104, 1994 Colo. Sess. Laws, 1644. Because the substance of the section is the same, we refer to the most recent codification.

[fn15] In Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 683 (Colo. 1985), before the 1990 amendments to the Ski Safety Act, we noted that the risks associated with skiing do not rise to the level of those associated with supplying electricity, operating amusement devices, and selling propane gas. However, in that case we were speaking to the dangers associated with skiing — such as variations in terrain, which skiers can guard against — and not the dangers related to the operation of ski lifts. See id. Rather, we stated in Bagnoli that the risks associated with operating ski lifts are much like those associated with operating amusement rides and based our conclusion regarding the applicable degree of care on the same factors we discussed in Lewis. See Bagnoli, 166 Colo. at 40, 441 P.2d at 664.

[61] JUSTICE KOURLIS dissenting

[62] Because I do not believe that the common carrier standard of care enunciated in Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 33, 441 P.2d 658, 661 (1968), survives the General Assembly’s express pronouncements in the Colorado Passenger Tramway Safety Act (Tramway Act) and the Colorado Ski Safety and Liability Act (Ski Safety Act), I respectfully dissent.

I.

[63] The issues certified to this court by the United States Court of Appeals for the Tenth Circuit are: (1) what standard of care governs the duty owed by ski lift operators in Colorado to winter season lift users; and (2) does the Tramway Act and/or the Ski [Safety] Act preempt or otherwise supersede the preexisting Colorado common law standard of care governing the duty owed by ski lift operators to users of those lifts in the winter season? I would answer the second question affirmatively, and clarify that the standard of care applicable to ski lift operators is one of ordinary negligence, as provided in the two Acts.

II.

[64] The plaintiff in this case, Eric Bayer, asks Crested Butte to insure him from injury while riding a ski lift, whether or not such injury was occasioned by negligence through mechanical, design or operational failure of the ski lift. Eric Bayer became unconscious and fell from the lift he was riding at Crested Butte ski area incurring severe injury. Bayer claims that Crested Butte had a duty to exercise “the highest degree of care,” and that such level of care would have required the installation of a restraining device on the lift from which he fell. He asserts no other wrongful action or omission by Crested Butte. Bayer concedes that the majority of ski lifts in Colorado do not have restraining devices and are certified for operation without them by the Colorado Passenger Tramway Safety Board (Safety Board). He also concedes that no statute, rule or regulation requires lifts to be equipped with such devices for winter operation. The federal district court granted summary judgment to Crested Butte, ruling that the applicable standard of care was reasonable care and that Crested Butte had exercised such reasonable care in the installation of the lift. On appeal, Bayer continues to argue that under Bagnoli, Crested Butte should be held to a higher standard of care than ordinary negligence. In my view, Bagnoli has no continuing life in light of intervening legislation; and the appropriate standard of care is ordinary and reasonable care.

III.

[65] In Bagnoli, this court determined that a lift operator was a “common carrier” with respect to the plaintiff and therefore owed the plaintiff “the highest degree of care commensurate with the practical operation of the chairlift.” Id. at 33, 441 P.2d at 661.

[66] The higher standard of care imposed in Bagnoli has traditionally been reserved for inherently dangerous activities. See Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 111-12, 570 P.2d 239, 241-42 (1977). Ultra-hazardous or abnormally dangerous activities warrant a rule of strict liability. See Western Stock Ctr., Inc. v. Sevit, Inc., 195 Colo. 372, 379, 578 P.2d 1045, 1050 (1978).

[67] The law has held common carriers to the higher standard of care, even though their activities are not necessarily inherently dangerous. The rationale for that higher standard arose out of their acceptance of an unusual responsibility to the public. See William L. Prosser, The Law of Torts 184 (3d ed. 1964). Additionally, burden of proof considerations played a role in the analysis, based upon the fact that a passenger on a mode of transport for hire is not familiar with the instrumentalities and appliances used for transportation and would be disadvantaged if required to prove the specific cause of the accident. See Denver & R.G.R. Co. v. Fotheringham, 17 Colo. App. 410, 68 P. 978 (1902).

[68] The common carrier standard of care was initially rejected by this court in Hook v. Lakeside Park Co., 142 Colo. 277, 351 P.2d 261 (1960), as applied to amusement park devices on the theory that the “presumptions or inferences available to a passenger in an action against a carrier are not available” in an amusement park setting. Hook, 142 Colo. 283, 351 P.2d at 265.

[69] The court revisited the issue in Lewis v. Buckskin Joe’s Inc., 156 Colo. 46, 396 P.2d 933 (1964), and concluded that amusement park devices should be treated as common carriers[fn1] because “the plaintiffs had surrendered themselves to the care and custody of the defendants; they had given up their freedom of movement and actions; there was nothing they could do to cause or prevent the accident. Under the circumstances of the case, the defendants had exclusive possession and control of the facilities used in the conduct of their business.” Id. at 56-57, 396 P.2d at 939. Three members of the Lewis court dissented on that point, distinguishing common carriers from recreational providers.

[70] If, indeed, a higher standard of care evolves primarily out of either an inherently dangerous activity or out of a common carrier status, clearly the court in Lewis was

relying upon the common carrier analysis, not a conclusion that amusement park devices are inherently dangerous.

[71] And thus, the court came to Bagnoli. In Bagnoli, the court noted that not all of the factors present in Lewis similarly applied to Bagnoli, but concluded nonetheless that Summit County Development Corporation was a common carrier and, as such, owed the plaintiff the highest degree of care. The court cited various other states that had similarly imposed a common carrier status on ski lift operators.

[72] The Bagnoli rationale turned on the common carrier status of the defendant. The court declared that a “ski lift facility, like other transportation facilities, and like the stagecoach amusement ride in Lewis, requires the operator to exercise the highest degree of care commensurate with its practical operation.” Bagnoli, 166 Colo. at 40, 441 P.2d at 664.

[73] However, after we decided Bagnoli, the legislative landscape changed around the nation, including in Colorado. The chronology reflects that courts initially defined ski lifts as common carriers, and thereby activated a higher standard of care. Many legislatures, like Colorado’s General Assembly, then chose to act and declared that passenger tramways are not common carriers. Following legislative pronouncements that ski lifts were not to be treated as common carriers, other states have retreated from a determination that a higher standard of care applies.

[74] For example, in Pessl v. Bridger Bowl, 524 P.2d 1101 (Mont. 1974), the Montana Supreme Court concluded that the duty of care owed by ski lift operators in Montana was one of reasonable and ordinary care because of the enactment of Montana’s Passenger Tramway Act which, in pertinent part, parallels the Tramway Act before us today.[fn2] See Pessl, 524 P.2d at 1107. See also Bolduc v. Herbert Schneider Corp., 374 A.2d 1187 (N.H. 1977)(holding same as Pessl, and recognizing that states adopting such statutes typically did so in response to court decisions which imposed a higher degree of care); D’Amico v. Great American Recreation, Inc., 627 A.2d 1164 (N.J. 1992)(applying highest degree of care because New Jersey’s ski safety act did not include language exempting operators from common carrier status); Albert v. State, 362 N.Y.S.2d 341 (N.Y. Ct. Cl. 1974)(finding that chairlift operators are not common carriers under similarly worded N.Y. statute); Friedman v. State, 282 N.Y.S.2d 858 (N.Y. Ct. Cl. 1967)(same as Albert); Donald M. Zupanec, Annotation, Liability for Injury or Death from Ski Lift, Ski Tow, or Similar Device, 95 A.L.R.3d 203 (1979). The New Hampshire Supreme Court specifically recognized in Bolduc that the legislative decision to remove passenger tramways from common carrier status was in response to court cases like Bagnoli. See Bolduc, 374 A.2d at 1189.

[75] Hence, other courts around the nation have specifically deferred to the legislative determination that passenger tramways may no longer be treated as common carriers. Bagnoli explicitly concludes that lift operators should be treated as common carriers, and such a conclusion is no longer valid. Additionally, the Lewis factors relied upon in Bagnoli cannot stand as an independent basis for the imposition of a higher standard of care unrelated to common carrier status, because they are merely an articulation of the reasons why common carriers are held to a different standard. Those factors cannot stand alone.[fn3] Hence, in my view, the legislature has removed the cornerstone of the foundation upon which Bagnoli rested. As the California Court of Appeal stated in McDaniel v. Dowell, 26 Cal.Rptr. 140, 143 (Dist. Ct. App. 1962), absent classification of a ski lift operation as a common carrier, “[t]here is no other basis for the imposition upon the defendant [] of a duty to exercise the utmost care and diligence for the safety of the plaintiff.”[fn4] IV.

[76] The accident in Bagnoli occurred on April 21, 1962, three years prior to the effective date of the Tramway Act. The court in Bagnoli thus did not apply the Tramway Act even though the actual decision was handed down in 1968, after the Act’s passage.

[77] On July 1, 1965, the following provision of the Tramway Act went into effect The provisions for regulations, registration and licensing of passenger tramways and the operators thereof under this Part 7 shall be in lieu of all other regulations or registration, or licensing requirements, and passenger tramways[fn5] shall not be construed to be common carriers within the meaning of the laws of this state.

[78] 25-5-717, 11A C.R.S. (1989)(emphasis supplied).

[79] In answering the questions before us today, the Majority observes that we infer no abrogation of a common law right of action absent clear legislative intent. Maj. op. at 12. I find just such clear legislative intent apparent in the unambiguous language of the Tramway Act. Crested Butte operates ski lifts. Ski lifts are passenger tramways, and under the Tramway Act passenger tramways “shall not be construed to be common carriers.” 25-5-717, 11A C.R.S. (1989).

[80] The legislature expressly decided that ski lifts were not to be treated as common carriers in Colorado. In addition, the legislature implicitly occupied the field by enacting pervasive and comprehensive legislation for safety requirements regarding ski lifts. See Lunsford v. Western States Life Ins., 908 P.2d 79, 87 (Colo. 1995)(noting that statutory preemption of areas of the common law may arise expressly or by clear implication).

[81] The Tramway Act is comprehensive in its scope of regulation of Colorado ski lifts In order to assist in safeguarding life, health, property and the welfare of this state, it is the policy of the State of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of ski tows, lifts and tramways and to assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operations of ski tows, ski lifts and passenger tramways.

[82] 25-5-701, 11A C.R.S. (1989).[fn6]

[83] The Tramway Act further authorizes the Safety Board to “adopt reasonable rules and regulations relating to public safety in the design standards, construction, operation and maintenance of passenger tramways.” 25-5-710(a), 11A C.R.S. (1989). The Tramway Act directs the Safety Board to use general guidelines and standards adopted by the American Standards Association, Inc., see id.; and the Act makes the Safety Board responsible for establishing “reasonable standards of design and operational practices.” 25-5-710.1, 11A C.R.S. (1989).

[84] In 1979, the legislature expanded the scope of its pronouncements when it enacted the Ski Safety Act.[fn7] The express purpose of that Act was “to establish reasonable safety standards for the operation of ski areas and for skiers using them.” 33-44-102, 14 C.R.S. (1995).

[85] For purposes of the issue before the court, the Ski Safety Act achieves four results. First, it supplements the Tramway Act and further defines the relative rights and responsibilities of ski area operators and skiers. See 33-44-102. Second, it clarifies that negligent operation of a ski lift is not an “inherent risk of skiing.” Id. Third, it provides that a violation by a ski area operator of any portion of the Ski Safety Act or of any rule or regulation promulgated by the Safety Board shall constitute negligence. See 33-44-104(2). Lastly, it includes preemptive language as follows: “Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.” 33-44-114 (emphasis added).

[86] The cumulative effect of those provisions leaves no doubt as to the legislative intent to set forth the governing law concerning ski area liability: both with respect to operation of ski slopes and ski lifts. The Tramway Act removes ski lifts from common carrier status. The Ski Safety Act incorporates the requirements of the Tramway Act and the Safety Board’s regulations and further mandates that inconsistent provisions of the common law are abrogated.

[87] Since the Tramway Act eliminates the elevated common carrier status of ski lift operators as a basis for a higher standard of care, the applicable standard reverts to that of ordinary care. The Tramway Act delegates to the Safety Board the task of establishing reasonable standards of design for ski lifts. The Ski Safety Act warns that failure to comply with any rule or regulation promulgated by the Safety Board shall constitute negligence on the part of the operator. The standard of care owed by ski lift operators to users of those lifts in the winter season is, therefore, ordinary and reasonable care consistent with the rules and regulations of the Safety Board.[fn8] [88] Indeed, not only should this court accede to legislative mandate, but additionally the fixing of an elevated standard of care is without basis in fact or law once the common carrier status rationale is eliminated.

V.

[89] In the absence of statutory edict, the courts must develop the common law. However, the General Assembly retains the authority to repeal common law rights or duties. See 2-4-211, 1 C.R.S (1997). In determining whether a legislative enactment serves to supplement the common law, or to repeal it, the courts have rightfully proceeded with caution. However, the principle of statutory construction that statutes in derogation of the common law must be narrowly construed should never be invoked to defeat the plain and clear intent of the legislature. See Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237, 251-52 (Colo. 1992). Legislative intent that is clearly expressed must be given effect. See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo. 1992)(finding a clear intent by the General Assembly to change the common law rule and require damages to be set off by certain non-exempt collateral source contributions); Pigford v. People, 197 Colo. 358, 360, 593 P.2d 354, 356 (1979)(noting a clear statement of legislative intent to change the common law in order to permit admissibility of certain prior offenses in criminal prosecutions for unlawful sexual behavior).

[90] When the legislature overrules a court decision that does not involve a constitutional issue, the court must comply with the legislative direction. “It is not within the purview of this court to question the legislature’s choice of policy.” City of Montrose v. Public Utils. Comm’n, 732 P.2d 1181, 1193 (Colo. 1987)(recognizing that legislature effectively overruled City of Montrose v. Public Utils. Comm’n, 197 Colo. 119, 590 P.2d 502 (1979), with respect to the means by which a utility was permitted to surcharge municipal fees).

[91] It is my view that the Majority is, indeed, declining to recognize the appropriate exercise of legislative authority and policy-making in defining the standard of care applicable to ski lift operators. Hence, I respectfully dissent.

[92] I am authorized to state that CHIEF JUSTICE VOLLACK joins in this dissent.

[fn1] At pages 15-16, the Majority includes a reference from Bagnoli, citing Lewis, to the effect that the actual common carrier status was not important. In fact, the Lewis language was merely clarifying that it was not important to distinguish between a stagecoach “prepared and maintained by the defendant for the carriage or amusement of those who pay the required fee.” Lewis, 156 Colo. at 56, 396 P.2d at 939 (emphasis in original).

[fn2] The Montana court also noted that Montana cases had rejected the analogy between a passenger of a common carrier for hire and a patron of an amusement place. See Pessl, 524 P.2d at 1106.

[fn3] There is an inference in some of the cases, including Hook, that amusement park devices are inherently dangerous and, thus, possibly deserving of a higher standard of care on that basis. This court has expressly rejected this rationale for ski area operators. See Pizza v. Wolf Creek, 711 P.2d 671, 683 (Colo. 1985)(expressly rejecting analogy comparing operating a ski area to inherently dangerous activities).

[fn4] The California court was concerned with whether a rope tow should be classified as a common carrier, and concluded that it should not. The court was not addressing the import of a statute, because at that time, California had no passenger tramway act.

[fn5] A “passenger tramway” is defined as “a device used to transport passengers uphill on skis or in cars on tracks, or suspended in the air by the use of steel cables, chains, or belts, or by ropes, and usually supported by trestles or towers with one or more spans.” 25-5-702(4), 11A C.R.S. (1989).

[fn6] I also note that emergency shutdown of a passenger tramway is justified only if the lift is shown to be an “unreasonable” hazard, 25-5-716, 11A C.R.S. (1989), lending further credence to the conclusion that the Tramway Act supplants any elevated standard of care and reestablishes an ordinary standard of reasonable care.

[fn7] In 1990, the legislature amended the Ski Safety Act to clarify the law regarding the duties and responsibilities of skiers and ski area operators and to provide additional protection for ski area operators. See Graven v. Vail Assocs., 909 P.2d 514, 517, 517 n. 3, 524 n. 4 (Colo. 1995). None of the 1990 amendments impact upon the question before us today, although they do further display the legislative intent to limit the causes of action available to skiers against ski areas.

[fn8] I do not believe that the “highest standard of care” is applicable to ski lift operators in the wake of the Tramway Act and the Ski Safety Act. Therefore, I do not reach the question of the interrelationship between compliance with the statutory and regulatory standards and that elevated standard of care. (Maj. op at 24-28). Further, I do not believe the question is before us as to whether evidence in addition to compliance with applicable standards and regulations should be adduced on the issue of negligence. In answering certified questions, the court should be brief and confine itself to the precise questions propounded. See In re Interrogatories of the U.S. District Court, 642 P.2d 496, 497 (Colo. 1982).


New Jersey decision explains the reasoning why ski areas owe the highest degree of care to people riding chairlifts.

Chair lifts are to be operated under the common carrier standard of care by ski areas in New Jersey.

D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499

State: New Jersey

Plaintiff: Kathleen A. D’Amico and Allen N. D’Amico

Defendant: Great American Recreation, Inc.

Plaintiff Claims: negligent in its operation and supervision of the ski lift

Defendant Defenses:

Holding: for the plaintiff

Year: 1992

The facts don’t lend themselves to what you would normally think as a chairlift accident. However, the decision explains in easy detail why the court requires the operator of a chairlift to operate it at the highest degree of care for the riders.

The plaintiff was in line to ride the chairlift. When she was next to board, another skier, skied into the path of the chair. The intervening skier hit the chair the plaintiff was to ride making the chair swing and hitting the plaintiff. The plaintiff suffered injuries from being hit by the chair.

The plaintiff and her husband sued. Prior to trial, the plaintiff moved for a motion in limine determining the standard of care of a ski area to riders of a chairlift. This decision is the result of that motion.

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

The court looked at decisions from all the other states where the question had been answered. What is the duty of care owed by an operator of a chair lift to a passenger.

At the time of this decision, most other states that had looked into the issue had determined that the standard of care was that of a common carrier. A common carrier is required to exercise the highest degree of care to is passengers.

A passenger of a common carrier places himself in the care of that common carrier. A passenger is unable to use his own faculties in order to prevent or avoid accidents and is forced to rely on the common carrier to ensure that accidents are avoided.  The carrier has this responsibility because they exercise control of the equipment used in the transportation of the passenger. Only the carrier can ensure that the equipment is in proper working order and is being operated correctly.

Just like a passenger on a train who has no opportunity to ensure that the locomotive is operating properly, a skier cannot determine whether a ski lift is operating properly.  When skiers board a ski lift, they are entrusting their care in the hands of another.  Once they have committed themselves to riding that chair up the mountain, they are powerless to control their own safety.  The chair lifts the skier off the ground as she sits down.  The chair is suspended off the ground at considerable distance.  The skier has no ability to stop the cable from moving.  Furthermore, a skier can’t exit the chair once it has begun  its ascent.  Because of the skier’s helplessness, ski lift operators should be held to the highest standard of care.

The defendant argued it was not a common carrier because it did not hold itself out to the public as a transportation carrier. Also, the transportation provided by the chairlift was incidental to the sport of skiing. However, the court did not buy that argument.

However, skiers come to ski areas to ski. If ski areas did not provide transportation up a mountain, it would be impossible for skiers to ski down the mountain. Transportation of skiers up the mountain is one of the primary functions of a ski area operator.  It is the reason skiers purchase “lift tickets”.

The ski area also argued that the plaintiff was not on the lift when she was injured. However, the court did not agree with this argument either.

The fact that this plaintiff was not physically on the lift when she was injured does not help defendant. The duty of care of a common carrier includes providing a safe means of ingress and egress for its passengers.

The court summed up its analysis.

Based upon the applicable well-reasoned decisions from other jurisdictions and the analysis set forth above, this court holds that ski area operators are common carriers in the operation of ski lifts. It is, of course, within the power of the Legislature to follow the examples of New York and New Hampshire and amend existing law to exclude ski lift operators from common carrier liability.  Great American Recreation will be held to the standard of care applicable to other types of common carriers in the operation of its Vernon Valley chairlift. This standard has been de-scribed as the highest possible care consistent with the nature of the undertaking involved.

So Now What?

There were still defenses available to the defendant ski area. The first is the intervening skier. The actions that lead to the injury of the plaintiff were not caused by the ski area but by a third party who intervened, was between the actions of the ski area and the injury to the plaintiff.

However, in New Jersey, from the moment a skier gets on the loading ramp until the skier leaves, the ski area is held to the highest degree of care to riders of its lifts, that of a common carrier.

Don’t know how this applies to lift lines?

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Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

Two decisions, if allowed to stand, will change the ski industry immensely. The standard of care owed to a passenger on a chairlift will drop considerably and allow ski areas a defense for the first time. At the same time, it should eliminate lawsuits by people who haven’t or should not be on a chairlift to begin with.

Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662

State: Colorado; United States District Court for the District of Colorado

Plaintiff: Teresa Brigance

Defendant: Vail Summit Resorts, Inc.

Plaintiff Claims: for (1) negligence, (2) negligence per se, (3) negligent supervision/training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability pursuant to Colorado Revised Statutes § 13-21-115

Defendant Defenses: Colorado Premises Liability Act

Holding: for Defendant in dismissing some of the plaintiff’s claims

Year: 2016

This is another decision in a case that is probably still on going. The decision is a response to motions, there could still be a trial and appeal of all of the issues examined here.

Vail, owner of Keystone Ski Area where this accident occurred was sued for an injury a skier received getting off the lift. The plaintiff was taking a lesson from an instructor, an employee of the ski area. She was instructed on how to load and unload the lift. (I’m guessing she was a beginner based on this statement.) While unloading from the lift the back of her ski boots became wedged under the lip of the chair resulting in an injury to the plaintiff.

(That happens all the time loading a chair lift to me. My boots are high in the back, and a lot of chairs catch them. I can get money for that? I should ski every day and quit this job. Wait, this job doesn’t pay at all!)

The plaintiff sued. Vail filed a motion to dismiss the parts of the complaint and amended complaint of the plaintiff.

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

The court first looked at Vail’s argument the negligence and negligence per se claims should be dismissed. The court defined a negligence per se claim differentiating it from a negligence claim.

In contrast to negligence, negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes the plaintiff’s injury.” Plaintiff must also show that the statute was intended to protect against the type of injury the plaintiff suffered and that the plaintiff is a member of the group of persons the statute was intended to protect. If those requirements are met, “then the statute conclusively establishes the defendant’s standard of care and violation of the statute is a breach of [defendant’s] duty.”

Negligence per se occurs when the defendant violates a statute that the defendant was required to follow and the statute was intended to protect the person or the public from injury.

Vail’s argument was the complaint did not identify a specific statute that was violated. The complaint referred to the Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act, but not a particular part of either act that was violated.

The Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act both allow for negligence per se claims.

Under the Skier Safety Act, “a violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

However, the plaintiff failed to identify the specific part of the statute that was violated by the defendant. Even if an act was identified, the violation of the act must be clearly established by the plaintiff.

Nevertheless, this language does not provide a statutory standard of care which is adequate to support Plaintiff’s claim for negligence per se. This Court has previously held that a claim for negligence per se requires a statute, “the violation of which can be clearly established. In other words, the relevant statute needs to prescribe or proscribe some relatively discrete action.

The negligence per se claims were dismissed because the plaintiff failed to identify the specific act and the specific injury the act was created to prevent.

The next issue was the application of the Colorado Premises Liability Act to the facts. The defendant Vail had argued in an earlier decision (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) that the Premises Liability Act preempted the Colorado Skier Safety Act. The same argument was being made here.

The Colorado Premises Liability Act contains the following provision.

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

This provision was further supported in an earlier Colorado Supreme Court decision, Vigil v. Franklin, which held the Premises Liability Act preempted all other types and forms of liability of a landowner. “Ultimately, the Court held that the Premises Liability Act “abrogate[s] the common law with respect to landowner duties.

The common law negligence claim no longer exists against a landowner, is it now a Premises Liability Act claim. This was supported earlier in the Raup decision, (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) “…holding that when a common law negligence claim is founded on negligent maintenance of a ski area, such a claim is within the scope of the Premises Liability Act and must be dismissed.”

In this case, the incident occurred on land of the defendant.

Claim One is a common law negligence claim. Plaintiff also alleges that her injury occurred while on the property of Defendant, the admitted landowner. Therefore, the claim would be preempted by the Premises Liability Act if the alleged injury occurred “by reason of the condition of such property, or activities conducted or circumstances existing on such property.”

The plaintiff argued that a negligence claim survives because of the Defendant’s failure to “maintain a proper distance between the chair and the ground at the unloading point, and/or [failure] to property operate and/or maintain the chair lift.”

However, the court found the plaintiff’s argument actually proved the issue. The incident occurred on the ground.

The alleged failures to maintain the conditions of the property clearly fall under the Premises Liability Act. Furthermore, failing to properly operate the chair lift is an “activity conducted” on the property that also falls under the Premises Liability Act.

The court went further to state the operation of the chair lift occurs on the land, is conducted on the ground that is the Defendants thus it is controlled by the Premises Liability Act.

Consequently, the plaintiff’s negligence claims were against a landowner and were preempted by the Colorado Premises Liability Act.

The final issue before the court was the defendant’s arguments that the claims against the individuals, the liftie and the ski instructor were duplicative in that as employees of the defendant, if proven the defendant was liable anyway. So those claims were the same as the other claims against the defendant Vail and should be dismissed. The court agreed.

So Now What?

The result is that instead of owing a skier on a chair lift the highest degree of care, that of a common carrier, the ski area owes a degree of care set forth to an invitee of a landowner.

13-21-115. Actions against landowners

(3)(c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.

That degree of care is the unreasonable failure to exercise reasonable care to protect against dangers which the landowner knew about or should have known about. This standard of care is significantly lower than that of a common carrier.

Again, this case is not over so the results could change!

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Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662

Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662

Teresa Brigance, Plaintiff, v. Vail Summit Resorts, Inc., Defendant.

Civil Action No. 15-cv-1394-WJM-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2016 U.S. Dist. LEXIS 31662

March 11, 2016, Decided

March 11, 2016, Filed

COUNSEL: [*1] For Teresa Brigance, Plaintiff: Trenton Jeffrey Ongert, Bloch & Chapleau, LLC, Denver, CO.

For Vail Summit Resorts, Inc., Defendant: Edward Timothy Walker, Samuel Nathan Shapiro, Vail Resorts Management Company, Legal Department, Broomfield, CO.

JUDGES: William J. Martínez, United States District Judge.

OPINION BY: William J. Martínez

OPINION

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S PARTIAL MOTION TO DISMISS AMENDED COMPLAINT

Plaintiff Teresa Brigance (“Plaintiff”) brings this action against Defendant Vail Summit Resorts, Inc. (“Defendant”). This matter is before the Court on Defendant’s Motion to Dismiss Amended Complaint (“Motion”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 17.) Defendant filed the Motion on August 28, 2015. (Id.) On September 25, 2015, Plaintiff filed her Response to the Motion. (ECF No. 27.) Defendant filed its Reply on October 13, 2015. (ECF No. 31.) For the reasons set forth below, the Motion is granted in part and denied in part.

I. STANDARD OF REVIEW

Under Rule 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations and view them [*2] in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

II. BACKGROUND

The following allegations are taken from Plaintiff’s Amended Complaint (“Complaint”). (ECF No. 6.) The Court assumes these allegations to be true for purposes of this motion.

On March 23, 2015, Plaintiff visited the Keystone ski area, which is owned and operated by Defendant. (Id. ¶ 9.) Plaintiff participated in a ski lesson which was taught by Megan McKinney, an employee of Defendant. (Id. ¶ 6.) Ms. McKinney instructed Plaintiff on the procedures for getting on and off the chair lift. (Id. ¶ 7.) The chair lift was operated by an unknown chair lift operator who was also an employee of Defendant and whom the Court will refer to as John Doe. (Id. ¶ 26.) While unloading from the chair lift, Plaintiff’s ski boot became wedged between the chair and the ground at the [*3] unloading area, causing injury to Plaintiff. (Id. ¶ 8.)

Plaintiff filed this lawsuit on June 30, 2015. (ECF No. 1.) Plaintiff then filed an Amended Complaint on July 27, 2015. (ECF No. 6.) Plaintiff asserted numerous claims arising out of events related to the chair lift incident. (See id.) Plaintiff asserts claims for (1) negligence, (2) negligence per se, (3) negligent supervision/training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability pursuant to Colorado Revised Statutes § 13-21-115. (See id.)

III. ANALYSIS

Defendant, through its Motion, moves to dismiss all of Plaintiff’s claims except for the premises liability claim. (ECF No. 17.) Defendant argues that Plaintiff’s claim for negligence per se (Claim Two) should be dismissed for failure to state a claim. (Id. at 4.) Defendant further contends that Plaintiff’s claims for negligence (Claim One) and negligence per se should be dismissed as they are preempted by the Premises Liability Act. (Id. at 2.) Lastly, Defendant argues that Plaintiff’s claims for negligent supervision/training, negligence (respondeat superior), and negligent hiring should be dismissed as duplicative. (Id. at 6.) The Court will discuss these arguments in turn.

A. Negligence Per Se

[*4] Defendant argues that Plaintiff fails to state a claim for negligence per se. (ECF No. 17 at 4.) “In contrast to negligence, negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes the plaintiff’s injury.” Scott v. Matlack, Inc., 39 P.3d 1160, 1166 (Colo. 2002). Plaintiff must also show that the statute was intended to protect against the type of injury the plaintiff suffered and that the plaintiff is a member of the group of persons the statute was intended to protect. Id. If those requirements are met, “then the statute conclusively establishes the defendant’s standard of care and violation of the statute is a breach of [defendant’s] duty.” Id.

In its Motion, Defendant asserts that Plaintiff’s Amended Complaint fails to identify any statutory standard of care that has been violated. (ECF No. 17 at 4.) Plaintiff identifies two statutes as the basis of her negligence per se claim: the Skier Safety Act and the Passenger Tramway Safety Act. (ECF No. 6 ¶¶ 18-19.)

As to the Skier Safety Act, certain violations of that Act do constitute negligence per se. See Stamp v. Vail Corp., 172 P.3d 437, 443 (Colo. 2007). Under the Skier Safety Act, “a violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.” Colo. Rev. Stat. § 33-44-104(2). However, Plaintiff fails to identify any requirement of that article–the Skier Safety Act–which has been violated. Instead, Plaintiff alleges that Defendant violated § 25-5-706(3)(d)–(e) of the Passenger Tramway Safety Act.1 Colo. Rev. Stat. § 25-5-706(3)(d)–(e). (See also ECF No. 6 ¶¶ 18, 20-21.) Section 25-5-706(3)(d)–(e) identifies certain situations in which the passenger tramway safety board may take disciplinary action. However, § 25-5-706(3)(d)–(e) is not a [*5] rule or regulation promulgated by the passenger tramway safety board and therefore Plaintiff does not properly state a claim for negligence per se under the Skier Safety Act.

1 Plaintiff identifies this language as coming from § 25-5-706(2)(d)–(e). However, it is clear that Plaintiff is actually referring to § 25-5-706(3)(d)–(e), since the language Plaintiff quotes is from that subsection of the statute.

In its response to the Motion, Plaintiff argues that the Passenger Tramway Safety Act provides a statutory standard of care independent of the Skier Safety Act. Specifically, Plaintiff stresses that § 25-5-706(3)(d)–(e) allows for disciplinary action to be taken if there is either “[w]illful or wanton misconduct in the operation or maintenance of a passenger tramway” or “[o]peration of a passenger tramway while a condition exists in the design, construction, operation, or maintenance of the passenger tramway which endangers the public health, safety, or welfare, which condition was known, or reasonably should have been known, by the area operator.”

Nevertheless, this language does not provide a statutory standard of care which is adequate to support Plaintiff’s claim for negligence per se. This Court has previously held that a claim for negligence per se requires a [*6] statute, “the violation of which can be clearly established.” Hendrickson v. Doyle, F. Supp. 3d , , 2015 U.S. Dist. LEXIS 166362, 2015 WL 8533769, at *5 (D. Colo. Dec. 11, 2015). “In other words, the relevant statute needs to prescribe or proscribe some relatively discrete action.” Id. The language of § 25-5-706(3)(d) proscribes willful or wanton misconduct and § 25-5-706(3)(e) proscribes something akin to negligent conduct. This is not statutory language prescribing or proscribing some discrete action (e.g., all chairs must be two feet removed from the ground at the unloading area). Therefore, the Court finds that Plaintiff has failed to state a claim for negligence per se. The Court grants the Motion as to Claim Two and dismisses Claim Two without prejudice.

B. Premises Liability Act Preemption

The Colorado Premises Liability Act contains the following provision:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

Colo. Rev. Stat. § 13-21-115(2). Defendant does not dispute that it meets the statutory definition of a “landowner”. (ECF No. 17 at n.1.) Based on its status as a landowner and the language of [*7] § 13-21-115(2), Defendant asserts that it can only be found liable, if at all, under the Premises Liability Act. (Id. at 4.) Therefore, Defendant argues that Claims One and Two are preempted and must be dismissed. (Id. at 3-4.)

To support its argument, Defendant cites the Colorado Supreme Court in Vigil v. Franklin, 103 P.3d 322 (Colo. 2004). In that case, the court held that the language of § 13-21-115(2) was “specific in its terms and without ambiguity,” and demonstrated that the General Assembly intended “to completely occupy the field and supercede existing law in the area” of premises liability. Vigil, 103 P.3d at 328. Furthermore, “[t]his language, coupled with the precisely drawn landowner duties in subsection (3), leaves no room for application of common law tort duties.” Id. Ultimately, the Court held that the Premises Liability Act “abrogate[s] the common law with respect to landowner duties.” Id. at 330.

This Court has interpreted the Colorado Supreme Court’s opinion in Vigil and has held that “all common law claims involving landowner duties, including negligence . . . are abrogated by the Premises Liability Act which provides the exclusive remedy.” Raup v. Vail Summit Resorts, Inc., F. Supp. 3d , , 2016 U.S. Dist. LEXIS 11499, 2016 WL 374463, at *3 (D. Colo. Feb. 1, 2016); see also Giebink v. Fischer, 709 F. Supp. 1012, 1017 (D. Colo. 1989) (holding that when a common law negligence claim is founded on negligent maintenance of a ski area, such a claim is within the scope of the Premises Liability Act [*8] and must be dismissed).

Claim One is a common law negligence claim. (See ECF No. 6.) Plaintiff also alleges that her injury occurred while on the property of Defendant, the admitted landowner. (Id.) Therefore, the claim would be preempted by the Premises Liability Act if the alleged injury occurred “by reason of the condition of such property, or activities conducted or circumstances existing on such property.” Colo. Rev. Stat. § 13-21-115(2).

Plaintiff alleges in Claim One that her injury occurred due to Defendant’s failure “to maintain a proper distance between the chair and the ground at the unloading point, and/or [failure] to property operate and/or maintain the chair lift.” (ECF No. 6 ¶ 15.) The alleged failures to maintain the conditions of the property clearly fall under the Premises Liability Act. Furthermore, failing to properly operate the chair lift is an “activity conducted” on the property that also falls under the Premises Liability Act. See Colo. Rev. Stat. § 13-21-115(2); see also Raup, 2016 U.S. Dist. LEXIS 11499, 2016 WL 374463, at *4 (holding that the affirmative actions of a chair lift operator, in directing passengers to exit the lift, qualified as activity conducted on the property for the purposes of the Premises Liability Act).

The Court thus has little difficulty in concluding [*9] that Plaintiff’s common law negligence claim is preempted by the Premises Liability Act. Accordingly, the Court grants the Motion as to Claim One and dismisses Claim One with prejudice. Since the Court dismissed Plaintiff’s claim for negligence per se in the previous section, the Court need not discuss, let alone decide, whether that claim should also be dismissed based on Defendant’s preemption argument.2

2 Defendant does not argue that Claims Three, Four, and Five are preempted by the Premises Liability Act. Therefore, the Court will also not address that issue.

C. Imputed Liability Claims

Defendant admits that both Megan McKinney and chair lift operator John Doe were employees of Defendant. (ECF No. 17 at 7.) Defendant further admits that both were acting within the scope of their employment at the time of Plaintiff’s incident. (Id.) As such, Defendant admits that it is liable under the theory of respondeat superior for whatever negligent acts or omissions of those two employees, if any, caused Plaintiff’s injuries. (See id.)

Defendant argues that, because it is vicariously liable for the employees’ negligent acts, claims based on other theories of imputed liability–Claims Three and Five–are [*10] duplicative and should be dismissed.3 (Id. at 7-8.) Defendant cites two trial court decisions from Colorado state court in which those courts dismissed claims based on theories of imputed liability that they found to be duplicative. (See id.) However, Defendant provides no state appellate precedential support for its position. (See id.)

3 In the heading for its third argument in the Motion, Defendant asserts that Plaintiff’s fourth claim for negligence (respondeat superior) should also be dismissed. (ECF No. 17 at 6, 8.) However, Defendant, in its discussion, does not argue that Claim Four should be dismissed. (Id. at 6-8.) Defendant’s argument in that section is limited to arguing that Claims Three and Five should be dismissed because they are duplicative of Claim Four. (See id.)

Moreover, Defendant fails to acknowledge that “[p]laintiffs may seek duplicative relief under federal and state statutes and common [law].” Big Cats of Serenity Springs, Inc. v. Vilsack, 84 F. Supp. 3d 1179, 1198 (D. Colo. 2015). The pursuit of alternative claims for similar relief is expressly permitted by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.”). Plaintiff may not recover [*11] for the same injury under multiple theories of imputed liability, and at some point Plaintiff may have to choose between her theories. However, that is not a reason to dismiss any of Plaintiff’s claims at this stage. Accordingly, the Court denies Defendant’s Motion as to Claims Three, Four, and Five.4

4 In its reply, Defendant argues that Plaintiff’s claim for negligent hiring should also be dismissed on the grounds that Plaintiff failed to plead “what knowledge [Defendant] had or should have had at the time its employees were hired.” (ECF No. 31 at 6.) This argument was not made in the Motion itself and therefore the Court need not and will not consider it.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Defendant’s Partial Motion to Dismiss Amended Complaint (ECF No. 17) is GRANTED IN PART and DENIED IN PART;

2. Defendant’s Motion to Dismiss is GRANTED as to Claim One (Negligence) and Claim Two (Negligence Per Se) and DENIED as to all other claims;

3. Claim One of Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED WITH PREJUDICE; and

4. Claim Two of Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED WITHOUT PREJUDICE.

Dated this 11th day of March, 2016. [*12]

BY THE COURT:

/s/ William J. Martínez

William J. Martínez

United States District Judge


D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499

D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499

Kathleen A. D’Amico and Allen N. D’Amico, her husband, Plaintiffs, v. Great American Recreation, Inc., a Corporation of the State of New Jersey, Defendant

DOCKET No. W-029746-88

Superior Court of New Jersey, Law Division, Sussex County

265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499

December 24, 1992, Decided

SUBSEQUENT HISTORY: [***1] Approved for Publication June 9, 1993.

CASE SUMMARY:

COUNSEL: Craig L. Klafter for plaintiffs (Hanlon, Lavigne, Herzfeld & Rubin, attorneys).

Samuel A. DeGonge for defendant (Samuel A. DeGonge, attorneys).

JUDGES: RUSSELL, J.S.C.

OPINION BY: RUSSELL

OPINION

[***2] [*497] [**1165] On February 27, 1987, plaintiff was injured while attempting to board a ski lift at defendant’s ski resort, Vernon Valley. Functionally, [*498] chairlifts consist of a series of metal and wooden chairs which are suspended from a wire cable. They are spaced evenly apart along the cable which rests on wheels attached to tall steel towers. At the bottom and top of the mountain, there is a large wheel which reverses the direction of the cable to enable the chairs to go up and down the mountain. The skier skis to a waiting area to board the lift. As the chair comes closer, the skier sits down onto the chair and is picked up off the snow and transported up the mountain. A safety bar across the front of the chair is lowered into place to prevent the skier from falling out of the chair.

Plaintiff was in the boarding area of the ski lift when the accident occurred. As she was waiting for the chair, an unidentified skier skied into the path of the chair. He struck the chair intended to transport plaintiff up the mountain. As a result, the chair began to swing and struck plaintiff causing serious injury. Plaintiff alleged, inter alia, that defendant ski area was negligent in its operation and supervision of the ski lift. Plaintiff moved in limine for an order declaring defendant to be a common carrier in the operation of the ski lift.

This issue has not been addressed by any reported decisions in New Jersey. Plaintiff seeks to have this court adopt the reasoning of the Third District Court of Appeals of California in Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897, (1992) that a ski area is a common carrier in the operation of its ski lifts and the highest standard of care applies

There are two New Jersey statutes which regulate ski areas, N.J.S.A. 5:13-1 et seq. (hereinafter “Ski Act”) and N.J.S.A. 34:4A-1 et seq. (hereinafter “Ski Lift Safety Act”). Neither act resolves the issue presently before this court. The Ski Act imposes duties on ski area operators and skiers involving the act of [***3] skiing. The Ski Lift Safety Act authorizes the adoption of standards for the construction, operation and inspection of ski lifts.

Plaintiff asserts that the New Jersey Ski Lift Safety Act of 1975 was modeled after a similar statute in New Hampshire originally [*499] enacted in 1957. Plaintiff derives this assertion from the similarity between the statements of purpose of the two acts. N.J.S.A. 34:4A-2 and N.H.R.S.A. 225-1:1. However, the definition of a ski area operator is significantly different in that a provision of the New Hampshire statute was added in 1965 to specifically provide that ski area operators shall not be deemed to be common carriers. Plaintiff argues that since the New Jersey Legislature was relying largely on the New Hampshire statute when it adopted the Ski Lift Safety Act, the absence of a comparable provision excluding common carrier liability evidences an intent to impose such liability.

There is nothing in the legislative history of the Ski Act or the Ski Lift Safety Act which indicates such an intent. However, the similarity between the New Hampshire and New Jersey statutes indicates that the Legislature was aware of the New Hampshire law [***4] and presumably they were also aware of the 1967 New York law which also specifically excludes ski lift operators from common carrier liability. N.Y.Trans.Law Sec. 2(6).

[HN1] It is a long-standing tenet of statutory construction that the legislature will not be said to change the common law without clear statutory language. See State v. Dalglish, 86 N.J. 503, 432 A.2d 74 (1981). Furthermore, [HN2] N.J.S.A. 34:4A-4 specifically provides that the Ski Lift Safety Act shall not “reduce or diminish the standard of care imposed upon passenger tramway operators under existing law.”

New Jersey case law provides little assistance in this matter; however, a number of other courts have grappled with this issue. In 1959, the Appellate Division of the New York Supreme Court decided Grauer v. New York, 9 A.D.2d 829, 192 N.Y.S.2d 647 (1959). The court held that the state of New York would be deemed to be a common carrier in the operation of a chair lift at a state park. The court noted that in [**1166] the operation of the chair lift, “(a) fee was charged for transportation and the public was invited [***5] to use the service.” Id. 192 N.Y.S.2d at 649. This holding by the New York Court was later overturned by the Legislature in 1967 [*500] when it amended New York’s transportation law. See N.Y.Trans. Law Sec. 2(6).

In Fisher v. Mt. Mansfield Co., 283 F.2d 533 (2nd Cir.1960), the court upheld the trial judge’s ruling that the standard of care of a common carrier applied to a Vermont ski lift operator. In Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 441 P.2d 658 (1968), the trial judge instructed the jury that the ski area operator owed plaintiff the highest degree of care because it was a common carrier in the operation of its ski lifts. The Colorado Supreme Court upheld this decision.

In Allen v. New Hampshire, 110 N.H. 42, 260 A.2d 454 (1969), the court applied the standard of care of a common carrier to a ski lift operator. New Hampshire later changed its law through legislative action. N.H.R.S.A. Sec. 225-A:1. See Bolduc v. Herbert Schneider Corp., 117 N.H. 566, 374 A.2d 1187 (1977).

[***6] In one case, Pessl v. Bridger Bowl, 164 Mont. 389, 524 P.2d 1101 (1974), the court did not apply the common carrier standard to a ski lift operator because of specific state legislation preventing such application. See Mont.Code Ann. Sec. 69-6615 (1947).

Grauer, Fisher, Bagnoli, Allen and Pessl were all decided before the New Jersey Legislature adopted the Ski Lift Safety Act in 1975. As such, the Legislature must be said to have been aware of the trend of courts addressing this issue to hold ski lift operators to the standard of care of common carriers. See Guzman v. City of Perth Amboy, 214 N.J.Super. 167, 518 A.2d 758 (App.Div.1980).

This trend was continued in the recent, well reasoned decision of Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897 (1992). The court defined [HN3] a common carrier as “any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit” and held that a ski lift operator fit within [***7] this definition. Id. at 1508, 3 Cal.Rptr.2d 897.

[*501] The defendant in the Squaw Valley case and the defendant in the case sub judice both argued that a ski lift operator is not a common carrier because ski lift riders are required to possess special equipment and skills in order to use the lift, hence, a ski lift is not offered for use indiscriminately to the general public. This court agrees with the conclusion of the Squaw Valley Court that defendant’s argument must fail. [HN4] A common carrier does not lose its status as such merely because the nature of its services is specialized. All members of the general public who possess the necessary equipment and expertise may avail themselves of the Vernon Valley chair lift.

The rationale behind requiring common carriers to exercise the highest degree of care furthers its application here. A passenger of a common carrier places himself in the care of that common carrier. A passenger is unable to use his own faculties in order to prevent or avoid accidents and is forced to rely on the common carrier to ensure that accidents are avoided. The carrier has this responsibility [***8] because they exercise control of the equipment used in the transportation of the passenger. Only the carrier can ensure that the equipment is in proper working order and is being operated correctly.

Just like a passenger on a train who has no opportunity to ensure that the locomotive is operating properly, a skier cannot determine whether a ski lift is operating properly. When skiers board a ski lift, they are entrusting their care in the hands of another. Once they have committed themselves to riding that chair up the mountain, they are powerless to control their own safety. The chair lifts the skier off the ground as she sits down. The chair is suspended off the ground at considerable distance. The skier has no ability to stop the cable from moving. Furthermore, a skier can’t exit the chair once it has begun [**1167] its ascent. Because of the skier’s helplessness, ski lift operators should be held to the highest standard of care.

Defendant argues that it should not be deemed to be a common carrier because “(i)t does not hold itself out to the public for [*502] compensation for the transportation of persons.” Great American Recreation asserts that the transportation of skiers [***9] up the mountain is only “incidental” to its business. Ski areas provide customers with many services including snow making, trail grooming and maintenance, lessons, parking, equipment rentals and restaurant facilities. However, skiers come to ski areas to ski. If ski areas did not provide transportation up a mountain, it would be impossible for skiers to ski down the mountain. Transportation of skiers up the mountain is one of the primary functions of a ski area operator. It is the reason skiers purchase “lift tickets”.

Defendant also argues that holding ski lift area operators to the standard of care of a common carrier would necessitate holding operators of elevators, escalators and other people movers to the standard of care of common carriers. However, many states have imposed this standard of care on operators of these devices. See, e.g., Kaminsky v. Arthur Rubloff & Co., 72 Ill.App.2d 68, 218 N.E.2d 860 (1906) (elevator); Norman v. Thomas Emery’s Sons, Inc., 7 Ohio App.2d 41, 218 N.E.2d 480 (1942) (elevator); [***10] Vandagriff v. J.C. Penney Co., 228 Cal.App.2d 579, 39 Cal.Rptr. 671 (1964). But see Tolman v. Wieboldt Stores, Inc., 38 Ill.2d 519, 233 N.E.2d 33 (1968) (holding that escalators are not common carriers). The reported New Jersey decisions involving elevators or escalators do not address the issue of whether to hold the operators to the standard of care of a common carrier. See Pisano v. S. Klein on the Square, 78 N.J.Super. 375, 188 A.2d 622 (1963); Dombrowska v. Kresge-Newark, Inc., 75 N.J.Super. 271, 183 A.2d 111 (App.Div.1962).

The fact that this plaintiff was not physically on the lift when she was injured does not help defendant. [HN5] The duty of care of a common carrier includes providing a safe means of ingress and egress for its passengers. See Buchner v. Erie Railroad Co., 17 N.J. 283, 111 A.2d 257 (1955).

Based upon the applicable well-reasoned decisions from other jurisdictions and the analysis set forth above, [HN6] this court holds that ski area operators are common carriers in the operation of ski [*503] lifts. It is, of course, within the [***11] power of the Legislature to follow the examples of New York and New Hampshire and amend existing law to exclude ski lift operators from common carrier liability. Great American Recreation will be held to the standard of care applicable to other types of common carriers in the operation of its Vernon Valley chairlift. This standard has been described as the highest possible care consistent with the nature of the undertaking involved. Harpell v. Public Serv. Coord. Transp., 20 N.J. 309, 120 A.2d 43 (1956). See Model Jury Charges 5.31.


Zip line accused of being common carrier which makes releases unenforceable. Issue still not decided, however, in all states common carriers cannot use a release as a defense.

Many ropes courses have determined that agreeing to be supervised by the state is the way to go. In Illinois, that supervision would have voided all defenses for a challenge course because they would have been classified as a common carrier. Common carriers’ have extremely limited defenses to claims.

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

State: Illinois, Appellate Court of Illinois, Fifth District

Plaintiff: April Dodge

Defendant: Grafton Zipline Adventures, LLC, and Michael Quinn

Plaintiff Claims: negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor, and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn

Defendant Defenses: Release

Holding: Sent back to the trial court to determine if a zip line under Illinois law is a common carrier

Year: 2015

The facts are pretty normal for zip line lawsuits. The plaintiff while riding was unable to slow down or stop and hit the tree holding the platform. In this case it was the eighth line of multiple zip lines down the mountain.

The defendant filed a motion to dismiss based on a release signed by the plaintiff. The plaintiff argued that the release was barred because the zip line was a common carrier under Illinois law and as such “they cannot exempt themselves from liability for their own negligence.”

The trial court agreed with the plaintiff that a zip line was a common carrier. That analysis was based on the theory that:

…in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-go-rounds or other amusement rides that had been held to be common carriers.

The defendants filed a motion for permissive interlocutory appeal which was denied by the appellate court. However the Illinois Supreme Court directed the appellate court to vacate (reverse) its order denying the appeal.

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

The court first looked at Illinois law on releases, calling them exculpatory clauses.

An exculpatory clause is a contractual provision that excuses the defaulting party’s liability. “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'”

The analysis under Illinois law concerning releases is pretty standard. Although “disfavored” they are upheld.

Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.

Releases under Illinois law however are unenforceable when applied to common carriers as releases for common carriers create a violation of public policy.

Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy.

The unenforceability of a release between a passenger and a common carrier is due to the relationship between the two.

Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties.

Arguments given for this are based on the fact the passenger pays for transportation from one location to another and during that transportation the passenger is totally at the control of the common carrier. The passenger cannot drive, inspect the track, road or path of travel, work on the engines or anything of that manner. The only thing the passenger can do is sit back and ride. The passenger has no control over their safety.

In this case, slowing or braking was under the control of the plaintiff.

A common carrier is held to the highest duty of care when transporting passengers.

Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.

In Illinois common carriers have been identified as: “owners of buildings with elevators; a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril”; a merry-go-round; a taxicab; and a Ferris wheel.” Here, as in most states, the safety of the passenger is totally under the control of the owner of the ride. What is different is normally a common carrier is taking people from once location to another, not around in circle or down a mountain you just ascended.

The court also examined and compared common carriers with private carriers.

Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” “Ordinarily, a common carrier must accept as a passenger any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.”

Here again, a common carrier is easily identified as a train, bus service or airline.

A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike.

The distinction between private carrier and a common carrier is gray in Illinois and the court spent time reviewing the issues. If the passenger actively can participate in the transportation and contributed to his or her own safety, the carrier is not a common carrier. In Illinois not being a common carrier does not necessarily mean a private person is a Private Carrier.

Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake to deliver goods or passengers in a particular case for hire or reward.” A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply.

Normally the distinction is made by the courts based on whether or not the carrier is a business, in the business of moving people from one place to another for a fee. Trains, busses, airlines are common carriers. Here the definition is confused because of the existence in Illinois of a broad definition of private carrier that is to say the least confusing.

Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.”

It is this distinction that the court found to be at issue in this case, whether a zip line is a common carrier or a private carrier.

The appellate court sent the case back to the trial court to determine if a zip line under Illinois law is a private carrier or a common carrier. If the trial court, which has ruled once already that a zip line, is a common carrier, rules the zip line is a common carrier, the sole issue at trial will be damages. How large will the check be that the zip line writes the plaintiff?

So Now What?

Readily accepting government regulation may provide a degree of relief in that you pass the safety inspection you are good for the season. However, once you are under that regulatory umbrella, you may also be classified by the regulations, statutes or the courts in a way you did not anticipate. You may lose defenses available to you prior to regulation.

This is similar to having a statute passed which provides liability protection for you. However this can be a two edge sword. Many state supreme courts have held that once a statute is enacted to provide protection, the only protection available is from the statute.

Many states create special categories for regulated industries. Here, falling under the regulation of the state classified the zip line as a common carrier.

The good news is the appellate court did not see the zip line as immediately qualifying as being controlled by the statute. Statutes usually define what they cover and the court did not even investigate the definition in this case.

However the court did look into whether or not a zip line was a common carrier. If the trial court finds that it is, there will be no end to the claims against zip lines in Illinois. Looked at another way, if the trial court determines a zip line is a common carrier, there will be an end to zip lines.

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Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

April Dodge, Plaintiff-Respondent, v. Grafton Zipline Adventures, LLC, and Michael Quinn, Defendants-Petitioners.

NO. 5-14-0124

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

July 14, 2015, Decision Filed

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(E)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Madison County. No. 13-L-238. Honorable Barbara L. Crowder, Judge, Presiding.

Dodge v. Grafton Zipline Adventures, LLC, 2014 Ill. LEXIS 1270, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill., 2014)

JUDGES: JUSTICE SCHWARM delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

OPINION BY: SCHWARM

OPINION

ORDER

[*P1] Held: Appellate court declines to answer the certified question and remands to the trial court to hear evidence to determine whether exculpatory agreement is between the public and one charged with a duty of public service, i.e., a common carrier, and therefore unenforceable.

[*P2] The plaintiff, April Dodge, filed the instant suit seeking recovery for injuries she sustained while riding on an aerial zip line course designed and operated by defendant Grafton Zipline Adventures, LLC (Grafton Zipline), by which defendant Michael Quinn is employed. The circuit court certified a question after denying the defendants’ motion to dismiss.

[*P3] BACKGROUND

[*P4] In her first amended complaint filed on May 3, 2013, the plaintiff alleged that Grafton Zipline operated an aerial zip line course in which paying guests, riding from one elevated platform to another, were guided over a series of suspended wire cable runs. The plaintiff alleged that [**2] “guests [we]re outfitted with a harness and pulley system which attache[d] to the suspended cables and which in theory allow[ed] them to control their speed by braking on descents.” The plaintiff alleged that on the eighth run of the zip line course, the plaintiff’s braking system failed to slow her descent, she approached the landing platform at a high rate of speed, and she violently struck the trunk of the tree on which the landing platform was mounted, fracturing her right heel bone.

[*P5] In count I, the plaintiff alleged that Grafton Zipline was a common carrier that breached its duty of care by negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor (56 Ill. Adm. Code 6000.350 (2013)), and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn.

[*P6] On June 7, 2013, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), the defendants [**3] filed a motion to dismiss the plaintiff’s first amended complaint on the basis that the plaintiff’s claims were barred by an exculpatory agreement signed by the plaintiff prior to her participation in the zip line activity. In the agreement, the plaintiff agreed to release the defendants from liability for injury, disability, death, or loss or damage to persons or property, whether caused by negligence or otherwise.

[*P7] In the plaintiff’s memorandum of law in opposition to the defendants’ motion to dismiss, the plaintiff asserted that the defendants’ exculpatory agreement was unenforceable. The plaintiff asserted that zip line courses are common carriers under Illinois law, and as such, they cannot exempt themselves from liability for their own negligence.

[*P8] On November 1, 2013, the circuit court held that exculpatory clauses were unenforceable against plaintiffs injured by the ordinary negligence of a common carrier. The circuit court noted that when parties disagree as to whether a defendant is a common carrier, the question becomes a controverted question of fact to be determined after considering evidence. However, the circuit court found that the pleadings before it alleged sufficient [**4] facts to establish that the defendants were common carriers, in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-gorounds or other amusement rides that had been held to be common carriers. The circuit court thereby denied the defendants’ section 2-619 motion to dismiss based on the exculpatory clause but also stated that “questions of fact remain as to whether [d]efendants *** are within the definition of common carriers.”

[*P9] On March 6, 2014, the circuit court, pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), entered its order certifying the following question for appeal:

“Is an exculpatory agreement signed by a participant on a zip[ ]line course, that released the zip[ ]line operator and its employees from their own negligence, enforceable to bar the participant’s suit for negligence, or is the zip[ ]line course a common carrier such that the exculpatory agreement is unenforceable?”

[*P10] On March 20, 2014, the defendants filed an application for permissive interlocutory appeal, which we denied on April 21, 2014. On September 24, 2014, however, the Illinois Supreme Court directed this court to vacate its judgment denying [**5] the defendants’ application for leave to appeal and directed us to grant such application. Dodge v. Grafton Zipline Adventures, LLC, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill. 2014). On November 5, 2014, per the supreme court’s supervisory order and pursuant to Illinois Supreme Court Rule 308, we thereafter allowed the defendants’ permissive interlocutory appeal.

[*P11] ANALYSIS

[*P12] On appeal, the defendants argue that the exculpatory agreement signed by the plaintiff bars her negligence claims and that the exculpatory agreement is enforceable because Grafton Zipline is not a common carrier. The plaintiff counters that the circuit court’s certified question is not ripe for determination because there are unresolved questions of fact regarding whether Grafton Zipline is a common carrier. We agree with the plaintiff.

[*P13] “The scope of review in an interlocutory appeal brought under [Illinois Supreme Court] Rule 308 is limited to the certified question.” Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289, ¶ 15, 986 N.E.2d 216, 369 Ill. Dec. 267. “A reviewing court should only answer a certified question if it asks a question of law and [should] decline to answer where the ultimate disposition ‘will depend on the resolution of a host of factual predicates.’ [Citations.]” Id. “A certified question pursuant to Rule 308 is reviewed de novo.” Id.

[*P14] An exculpatory [**6] clause is a contractual provision that excuses the defaulting party’s liability. See Black’s Law Dictionary 648 (9th ed. 2009) (defining an exculpatory clause as “a contractual provision relieving a party from liability resulting from a negligent or wrongful act”); McKinney v. Castleman, 2012 IL App (4th) 110098, ¶ 14, 968 N.E.2d 185, 360 Ill. Dec. 106 (exculpatory agreement involves express assumption of risk wherein one party consents to relieve another of a particular obligation). “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” McKinney, 2012 IL App (4th) 110098, ¶ 14. “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'” Id. (quoting Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407, 412, 869 N.E.2d 195, 311 Ill. Dec. 521 (2007)).

[*P15] Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.'” McKinney, 2012 IL App (4th) 110098, ¶ 14 (quoting Harris v. Walker, 119 Ill. 2d 542, 548, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988)). Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common [**7] carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy. McKinney, 2012 IL App (4th) 110098, ¶ 14; Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 19, 957 N.E.2d 485, 354 Ill. Dec. 169; White v. Village of Homewood, 256 Ill. App. 3d 354, 358-59, 628 N.E.2d 616, 195 Ill. Dec. 152 (1993). Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties. See McClure Engineering Associates, Inc. v. Reuben Donnelley Corp., 101 Ill. App. 3d 1109, 1111, 428 N.E.2d 1151, 57 Ill. Dec. 471 (1981); First Financial Insurance Co. v. Purolator Security, Inc., 69 Ill. App. 3d 413, 419, 388 N.E.2d 17, 26 Ill. Dec. 393 (1979) (“when an exculpatory provision is found invalid because of a special relationship between the parties, it is the semipublic nature of the party seeking to exculpate itself from liability that allows the court to invalidate the provision”).

[*P16] Thus, any contract by which a common carrier of goods or passengers undertakes to relieve itself from liability for loss or damage arising from its negligence or the negligence of its servants is void. Checkley v. Illinois Central R.R. Co., 257 Ill. 491, 494, 100 N.E. 942 (1913); Simmons v. Columbus Venetian Stevens Buildings, Inc., 20 Ill. App. 2d 1, 17, 155 N.E.2d 372 (1958); Restatement (Second) of Torts § 496B cmt. g (1965) (“Where the defendant is a common carrier ***, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect.”). “Having undertaken the duty to the public, which includes the obligation of reasonable care, [**8] [common carriers] are not free to rid themselves of their public obligation by contract, or by any other agreement.” Restatement (Second) of Torts § 496B cmt. g (1965).

[*P17] An exculpatory contract, wherein a common carrier of goods or passengers undertakes to exempt itself from liability for negligence “if sustained, would relieve the carrier from its essential and important duties to the public growing out of the character of its employment, and tend to defeat the foundation principle on which the law of common carriers is based; that is, the securing of the highest care and diligence in the performance of the important duties due to the public.” Checkley, 257 Ill. at 494; see also Simmons, 20 Ill. App. 2d at 17. “The heightened status afforded to common carrier[ ] *** relationships is based on the protection of the public ***.” Zerjal v. Daech & Bauer Construction, Inc., 405 Ill. App. 3d 907, 912, 939 N.E.2d 1067, 345 Ill. Dec. 887 (2010); see also Simmons, 20 Ill. App. 2d at 17 (“It has been said if there is any general reason for the rule to be deduced from the passenger cases, it is that the public service consideration alone prevents contractual limitation of liability for negligence.”).

[*P18] In holding that a common carrier has a duty to exercise the highest degree of care consistent with the practical operation of its conveyances to protect its passengers (Rotheli v. Chicago Transit Authority, 7 Ill. 2d 172, 177-78, 130 N.E.2d 172 (1955); Browne v. Chicago Transit Authority, 19 Ill. App. 3d 914, 917, 312 N.E.2d 287 (1974)), courts have considered the “‘unique control [a common [**9] carrier] possesses over its passengers’ safety.'” Krywin v. Chicago Transit Authority, 391 Ill. App. 3d 663, 666, 909 N.E.2d 887, 330 Ill. Dec. 865 (2009) (quoting Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151, 154, 632 N.E.2d 1069, 198 Ill. Dec. 458 (1994)); see also O’Callaghan v. Dellwood Park Co., 242 Ill. 336, 345, 89 N.E. 1005 (1909) (“If the injury of a passenger is caused by apparatus wholly under the control of a carrier and furnished and managed by it, and the accident is of such a character that it would not ordinarily occur if due care is used, the law raises a presumption of negligence.”). “Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.” Sheffer, 261 Ill. App. 3d at 156. “[C]ommon carriers are responsible for their patrons’ physical safety for which there is no second chance if a mistake should occur.” Zerjal, 405 Ill. App. 3d at 912.

[*P19] In determining whether a defendant is a common carrier that owes the highest degree of care in transporting its passengers, the courts have characterized the following as common carriers: owners of buildings with elevators (Rotheli, 7 Ill. 2d at 177); a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril” (O’Callaghan, 242 Ill. at 344); a merry-go-round (Arndt v. Riverview Park Co., 259 Ill. App. 210, 216-17 (1930)); a taxicab (Metz v. Yellow Cab Co., 248 Ill. App. 609, 612 (1928)); and a Ferris wheel (Pajak v. Mamsch, 338 Ill. App. 337, 341, 87 N.E.2d 147 (1949)).

[*P20] In finding that an escalator was not a common carrier, the Illinois Supreme Court in Tolman found [**10] it significant that a person on an escalator may actively participate in the transportation in a manner similar to the use of a stairway and may contribute to his own safety. Tolman v. Wieboldt Stores, Inc., 38 Ill. 2d 519, 526, 233 N.E.2d 33 (1967). The court noted that the role of a passenger on a train, bus, or elevator is a passive one, and ordinarily such a passenger cannot exercise any control over his own safety. Id. at 525. The court further held that the rule as to the higher duty one owning and operating an elevator owes to a passenger riding in same, who is injured through some defect in its operating mechanism, is predicated upon the fact that a person riding in an elevator cannot possibly know or show, if such elevator gets out of control, what caused it to do so. Id. at 524-25. The court noted that because the elevator owner was in sole control of the elevator and the machinery used in its operation, an inference of negligence on the part of said owner arose out of the circumstances. Id.; see also Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 125, 733 N.E.2d 874, 248 Ill. Dec. 199 (2000) (because bank had full control of premises, it had the duties of common carrier owed to the plaintiff who suffered injuries when the lift he was riding suddenly fell); Carson v. Weston Hotel Corp., 351 Ill. App. 523, 532, 115 N.E.2d 800 (1953) (lessee in full control of the premises had the duties of a common carrier of elevator [**11] passengers).

[*P21] While proper solicitude for human safety requires a carrier of passengers not to diminish its liability to them, the relative bargaining power of the parties is also a factor. Simmons, 20 Ill. App. 2d at 17. In Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 43-44, 930 N.E.2d 578, 341 Ill. Dec. 368 (2010), the plaintiff sought to recover for injuries she suffered on a tour run where she rode a segway onto a small grassy hill, and it threw her off. The plaintiff signed a release before participating in the tour. Id. The plaintiff argued, however, that her social relationship with the defendant and its tour guide rendered the release unenforceable. Id. at 46. The court concluded, without analysis, that the defendant was not a common carrier. Id. Finding also that that there was no disparity of bargaining power because the plaintiff simply could have refused to join the tour if she had disagreed with the exculpatory clause, the court held that the exculpatory language of the release was enforceable. Id.

[*P22] Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” Long v. Illinois Power Co., 187 Ill. App. 3d 614, 628, 543 N.E.2d 525, 135 Ill. Dec. 142 (1989). “Ordinarily, a common carrier must accept as a passenger [**12] any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.” Id. “[A] common carrier may be liable for an unexcused refusal to carry all who apply.” Doe v. Rockdale School District No. 84, 287 Ill. App. 3d 791, 794, 679 N.E.2d 771, 223 Ill. Dec. 320 (1997). A common carrier is “obligated by law to undertake the charge of transportation, which none but a common carrier, without a special agreement, is.” Rathbun v. Ocean Accident & Guarantee Corp., 299 Ill. 562, 566, 132 N.E. 754 (1921).

[*P23] A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. Id. at 567. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike. Green v. Carlinville Community Unit School District No. 1, 381 Ill. App. 3d 207, 211, 887 N.E.2d 451, 320 Ill. Dec. 307 (2008); Illinois Highway Transportation Co. v. Hantel, 323 Ill. App. 364, 375, 55 N.E.2d 710 (1944). Again, common carriers necessarily have control and regulation of the passengers’ conduct and of the operation of the carriage before they can be held to the extraordinary liability of common carriers to such passengers. Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence).

[*P24] “Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake [**13] to deliver goods or passengers in a particular case for hire or reward.” Rathbun, 299 Ill. at 566. A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply. Green, 381 Ill. App. 3d at 211; Rockdale School District No. 84, 287 Ill. App. 3d at 795.

[*P25] “Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.” (Internal quotation marks omitted.) Long, 187 Ill. App. 3d at 630. When a plaintiff affirms and the defendant denies that the defendant is operating as a common carrier, the question becomes a controverted question of fact to be determined by a consideration of the evidence by the trial court. Rathbun, 299 Ill. at 566; Bare v. American Forwarding Co., 242 Ill. 298, 299, 89 N.E. 1021 (1909); Hantel, 323 Ill. App. at 374; Beatrice Creamery Co. v. Fisher, 291 Ill. App. 495, 497, 10 N.E.2d 220 (1937).

[*P26] Accordingly, we find that whether Grafton Zipline is a common carrier is a question of fact, “dependent upon the nature of the business in which [it is] engaged, and [is] to be determined from a consideration of all of the evidence.” Beatrice Creamery Co., 291 Ill. App. at 497. In its order, the circuit court noted that questions of fact remained regarding whether Grafton Zipline is a common carrier. [**14] We agree and find this so with regard to the certified question. To determine whether the exculpatory clause is unenforceable on the basis that Grafton Zipline is a common carrier “charged with a duty of public service” the court must necessarily determine disputed factual issues. The court must determine whether Grafton Zipline had control and regulation of the passengers’ conduct and of the operation of the carriage (see Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence)); whether the plaintiff actively participated in the transportation and contributed to her own safety (Tolman, 38 Ill. 2d at 525-26 (because escalator allowed the plaintiff to actively participate in the transportation and allowed control over safety, escalator not common carrier); whether there was a disparity of bargaining power between the parties (see Hamer, 402 Ill. App. 3d at 43-44 (exculpatory clause enforceable where plaintiff could simply have refused to join the segway tour)); and whether Grafton Zipline made a profession to carry all who applied for carriage (see Browne v. SCR Medical Transportation Services, Inc., 356 Ill. App. 3d 642, 647, 826 N.E.2d 1030, 292 Ill. Dec. 594 (2005) (because medical transport van served only those individuals [**15] who met its eligibility requirements, could decline to serve anyone based on numerous factors such as location and availability of medical transport vans, made no profession to carry all who apply for carriage, and was not bound to serve every person who may apply, medical transport van was not a common carrier)). To answer the certified question before the circuit court has heard evidence on these matters would be premature. Thus, we decline to answer the certified question, and we remand the cause for further proceedings consistent with this order. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 477, 693 N.E.2d 358, 230 Ill. Dec. 229 (1998).

[*P27] CONCLUSION

[*P28] For the reasons stated, we decline to answer the certified question as its ultimate disposition depends on the resolution of multiple factual predicates. We remand the cause to the Madison County circuit court for further proceedings.

[*P29] Certified question not answered; cause remanded.


Plaintiff tried multiple ways to sue whitewater rafting company

Plaintiff premises claims do not apply to a whitewater rafting company.

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

Plaintiff: James A. Sanders

Defendant: Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated

Plaintiff Claims: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner

Defendant Defenses: no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury

Holding: for the defendant

The plaintiff in this case went whitewater rafting previously with the defendant. During his second trip, he fell out of the raft injuring his knee. He later developed a staph infection from the injury. Cases where the plaintiff argues the first aid care was improper or negligent are extremely rare. However, the court rules on a technicality that throws out the plaintiff’s first aid claim and does not provide us with any direction in this area of the law.

During the trip, the plaintiff fell out of the raft and swam about 100 yards until he was rescued. During the swim, he was injured when he struck his knee on something. An employee of the defendant applied an ice bag and an elastic bandage on the trip. The Plaintiff eventually went to a hospital where he was diagnosed with a laceration and a fractured knee cap. The plaintiff later had surgery but developed a staph infection.

The plaintiff asserted the raft guide had the opportunity to rescue him but “the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water.”

The plaintiff filed suit claiming, “that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid, and this was the cause of his subsequent infection.”

Summary of the case

The Plaintiff was a citizen of Alabama. The defendant raft company was located in Pennsylvania. The river where the accident occurred is the upper Youghiogheny in Maryland. The plaintiff sued the defendant in Federal District Court. The parties agreed that a Maryland court, the state where the accident occurred was the proper site for the venue of the case.

This section of the Youghiogheny was described by the court as “most difficult of all categories of river runs.” The court made that determination by using a book that describes the rivers and ratings in the east. The court is silent on how this book was accepted by the court and introduced into evidence.

Most books like this are brought into the evidentiary change through the Federal Rule of Evidence (F.R.E.) 803(18) Learned Treatises. The rules of evidence control what evidence is introduced at trial both as documents or things and what witnesses may say. F.R.E. 803(18) states:

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Normally, the rules of evidence require a person to prove the document or book as what the evidence is, and that it is real. If you were trying to introduce the raft company brochure as a piece of evidence, you would have to have the owner or a corporate officer of the company on the stand and testify that the brochure was the brochure.

A Learned Treatise is different in two ways. The first is you do not need the author or the publisher to admit the treatise, the book into evidence. If the treatise is relied upon by an expert witness, testified as a reliable authority in the field or recognized as the authority by the court or the general public, the information in the treatise is accepted in the case. The second issue is everything in the treatise is accepted without additional testimony. Normally, it might take two or three experts to examine a river section and applying the American Whitewater Associations rating system determine the river rating. However, a book that is generally accepted in the whitewater community or by a recognized expert in the field is accepted by the court as a learned treatise under F.R.E. 803(18). Once the book is admitted, every page and statement in the book is admitted.

An important point in most recreational cases is what information the plaintiff had to assist him in his decision to engage in the sport. If the information is lacking the plaintiff introduces the evidence to prove the defendant was hiding things or did not give proper notice of the release or the dangers. If the brochure does a good job of pointing out the risks and the requirements, the defense introduces the brochure into trial. In this case, the plaintiff was mailed a brochure by the defendant. The brochure was reviewed by the court, and the Court pointed out three points in the brochure.

1) Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form.

2. Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels.

3. Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.

The defendant also gave the trip participants a safety talk, oral warnings as the court described them at the meeting point and at the river put in. The plaintiff denies hearing the warnings. However, the court referenced the warnings in the opinion giving credibility to them. Finally, the plaintiff signed a release for this trip; the second release signed by the defendant, which the court quoted from:

As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for all claims of any nature whatsoever . . . .

Failure to Rescue

The Appellate court adopted the District Court’s analysis and finding regarding the claim that the defendant was not rescued quickly. Because the only testimony about whether the rescue was quick enough was the plaintiff’s there was no proof to validate the claim. The court stated an expert witnesses needed to testify that the plaintiff should have been rescued sooner. The plaintiff’s statements were insufficient under Maryland law to prove a claim of negligence.

This claim and the court’s review did not investigate the issue of keeping the majority safe at the expense of one. In a raft and in some cases on a mountain, the guide must evaluate the risk of the rescue to the entire boat, not to the swimming customer. If rescuing the one customer in the river will put the entire boat at risk, the customer will swim a while longer. This point must be made and explained to your guests both in writing and in any safety talk. It is important for the customer in the water to know that their rescue is up to them. It is important for the people in the boat to understand they have to get the boat to a safe area and then rescue so they do not risk themselves needlessly or just quit paddling believing they should grab the swimmer.

Negligent in failing to render first aid.

The claim of negligently failing to properly render first aid is an extremely rare claim. The court again looked at the evidence presented and ruled the evidence was insufficient to meet a claim of negligence; “that the medical evidence failed to show that the infection was caused by improper first aid.” By this court the court stated, there was nothing but the plaintiff’s allegations about how he was injured. Courts want expert testimony from people in the field to rule on scientific, technical or areas of information outside of the general knowledge of the public.

Failure to Warn

The plaintiff argued that the defendant failed to “warn Sanders [the plaintiff] of the extreme danger of the particular section of river they would be traversing.”

The court first examined whether there was a general duty to warn in a non-landowner liability case. The court found that a general duty to warn exists in numerous situations. The court used the example that a stable had a duty to warn a rider of a horse with dangerous propensities.

To establish a duty to warn, the court must look at the following factors: “foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability.” Looking at the factors the court determined that “A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons.”

The warnings that the defendant gave the plaintiff were adequate as a matter of law according to the court. Warnings only need to be reasonable, not the best warnings possible. The court also found the plaintiff had notice of the risks because he had taken a prior whitewater rafting trip and because the risks of whitewater rafting are obvious: “…the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip.”

Finally, the court determined that the plaintiff’s claim that whitewater rafting was a common carrier, and thus due to a higher standard of care was without merit. By this the court meant, there was no legal or factual basis to discuss the issue.

So Now What?

There is no real information you can take from this case that we have not previously discussed. However, it does show how far some plaintiffs will go to get around and sue for an injury. The defendant had done a good job of putting out to the public information on the risks of the activity which allowed the court to make the decisions to deny the plaintiff’s claims.

Other Common Carrier Cases

WA Zip line lawsuit dismissed because the plaintiff admitted he should have understood the risk            http://rec-law.us/L3IfG1

Electronic release upheld in Florida federal court for surfing on a cruise ship       http://rec-law.us/LPSLWS

New Hampshire season pass release protects ski area from claim for injury due to snowmobile accident                       http://rec-law.us/XaQSpf

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Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

James A. Sanders, Plaintiff-Appellant, v. Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated, Defendants-Appellees.

No. 92-1060

United States Court of Appeals for the Fourth Circuit

1992 U.S. App. LEXIS 15094

May 5, 1992, Argued

June 29, 1992, Decided

Notice: Rules of the Fourth Circuit Court of Appeals may limit citation to unpublished opinions. Please refer to the rules of the United States Court of Appeals for this circuit.

Subsequent History: Reported as Table case at 1992 U.S. App. LEXIS 22122

Prior History: Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-91-1507-S)

Disposition: Affirmed

Counsel: Argued: Richard Evan Jordan, Washington, D.C., for Appellant.

Howard J. Schulman, Baltimore, Maryland, for Appellee.

Judges: Before Ervin, Chief Judge, Hamilton, Circuit Judge, and Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Opinion by: Per Curiam

Opinion

Opinion

Per Curiam:

James A. Sanders appeals the order of the district court granting summary judgment in favor of Laurel Highlands River Tours, Inc. (Laurel) on his claims arising from injuries he received while on a white-water rafting trip. Sanders also appeals the district court’s denial of his motion for reconsideration of the judgment. The district court granted summary judgment on the grounds that Laurel had no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury.

Although the district court erred in ruling that the theory of failure to warn, other than as applied to landowners, does not arise outside of the product liability context, we affirm its decision on the grounds that, as a matter of law, the warnings given to Sanders were adequate and he assumed the risk of undertaking the white-water rafting trip.

I

Laurel is a corporation engaged in the business of outfitting and guiding customers who wish to raft down rivers and their rapids in the Pennsylvania area. One of the guided white-water tours is on the upper portion of the Youghiogheny River in Western Maryland. This portion of the Youghiogheny is classified, according to an industry guide, as within the most difficult of all categories of river runs, suitable for experts. Armstead, Whitewater Rafting in Eastern North America, (2d ed. 1989).

Sanders contracted with Laurel for himself and three of his friends. This trip was not the first Sanders took. On October 24, 1987, Sanders went on a rafting trip with Laurel on the lower Youghiogheny, a run classified as lower in difficulty than the upper Youghiogheny. Prior to the lower Youghiogheny trip, Sanders signed a release of liability which stated in part that he “realized I could fall out of the raft or even capsize in rough water (rapids). I realize this could result in serious injury.” (Exhibit, Joint Appendix (J.A.) 34). On July 20, 1988, Sanders made the reservation for the upper Youghiogheny trip. Sanders concedes that he received, prior to this trip, a brochure that stated, in relevant part:

1)Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form. (J.A. 44).

2.Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels. (J.A. 40).

3.Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.

Sanders denies, and we accept for purposes of reviewing this summary judgment, that he heard the oral warnings that Laurel submits it gave about the dangers of white-water rafting in general and the upper Youghiogheny in particular. Laurel asserts that it gave such warnings at the meeting point for participants and the embarkation point at the river. There is no question, however, that Sanders signed a waiver and release card, before both the first trip and the ill-fated one. The card stated, directly above his signature and directly below information he filled out:

As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for any and all claims of any nature whatsoever . . . . (J.A. 34).

Laurel transported the customers to the drop-off point. At the drop-off point, the customers were given further instructions and outfitted with helmets and life preservers.

Early in the trip, Sanders fell out of the raft and claims he was forced to traverse approximately 100 yards of the rapids bodily. He asserts that, prior to his injury, there was an opportunity for him to be safely retrieved, but that the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water. Sanders injured his knee at some point when he struck a rock and claims that he also suffered an open wound on the knee at that time. A Laurel employee rendered first aid which consisted of applying an ice cap and an elastic bandage to the injured area.

The next morning, Sanders went to an emergency room where he was treated and told to seek further care closer to home. The emergency room records indicate that he had an abrasion and a fractured knee cap. He later had surgery performed on his knee to repair the fracture. Four days later, Sanders developed a staph infection in the upper thigh.

Sanders does not claim that Laurel owed him a duty to prevent him from falling out of the raft. He does assert that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid and this was the cause of his subsequent infection.

The parties focused much of their pre-trial efforts on the purported release which Sanders signed prior to the trip. The district court, however, found it unnecessary to consider this issue.

First, the district court found that the only basis for the claim that he should have been rescued sooner was Sanders’ opinion. The district court ruled that such an opinion concerning when it was safe to get Sanders back into the raft probably required the testimony of an expert, but even if it did not, Sanders’ statements were mere “adjectival descriptions” which, under Maryland law, would be insufficient to prove negligence. (Order, J.A. 254). Sanders’ second claim for relief was that Laurel’s employee was negligent in failing to properly render first aid to him because his wound was not properly cleaned. Here the district court focused on the medical evidence concerning causation, finding that the medical evidence failed to show that the infection was caused by improper first aid.

Sanders filed a motion for reconsideration and attached a supplemental affidavit from one of his medical experts in which the expert specifically opined that the lack of first aid was the cause of the subsequent staph infection. Sanders also claimed that the district court failed to consider his “failure to warn claim.” This failure to warn claim was based on Laurel’s supposed duty to warn Sanders of the extreme danger of the particular section of river they would be traversing.

The district court in its order on reconsideration noted that a “failure to warn” theory of recovery, outside of the landowner liability context, was limited in application to product liability cases. In addition, the district court refused to give Sanders a”second bite at the apple” by supplementing the medical expert’s affidavit. To do so, the court felt, would substantially diminish the purpose and utility of summary judgment.

Sanders appeals on the grounds that: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner.

Laurel argues on appeal against these assertions. It also contends that it was not liable as a matter of law because Sanders knew of the danger and voluntarily assumed the risk, because Sanders agreed, before his injury, to unconditionally release Laurel from any liability, and because Laurel adequately warned Sanders of the dangers involved.

II

Sanders, a citizen of Alabama, brought this suit in federal court against Laurel, a corporate citizen of Pennsylvania, on the basis of diversity. The parties agreed that the law of the locus, Maryland, applied to the action.

[HN1] Appellate review of the granting of a party’s motion for summary judgment is de novo, and the court of appeals uses the same standard as the district court. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979).

Initially, it must be noted that the district court erred in holding that a defendant can have no duty to warn outside of landowner and product liability law. See, e.g., Eisel v. Bd. of Educ. of Montgomery Co., 597 A.2d 447 (Md. 1991) (holding that the failure of a school counselor to inform parents of a student’s suicide ideation was grounds for liability of the school); B.N v. K.K., 538 A.2d 1175 (Md. 1988) (holding that the failure of a person to warn his sexual partner that he had genital herpes was grounds for liability for transmission of the disease). [HN2] A duty to warn does extend beyond product liability or landowner liability cases if a warning is called for as a result of one party’s general duty to another.

For example, the owner of a horse with a known dangerous propensity must warn a rider of that danger since that is the appropriate way for him to respond to his duty to his customer. See, e.g., Bass v. Quinn Robins Co., 216 P.2d 944 (Idaho 1950). An airline has a duty to warn a passenger of turbulence it knows is likely to occur. Brittain v. Piedmont Aviation, Inc., 120 S.E.2d 72 (N.C. 1961). An airline may have a duty to warn of conditions of flight if it knows they may affect a passenger with a particular sensitivity to those conditions. Paolone v. American Airlines, Inc., 706 F. Supp. 11 (S.D. N.Y. 1989).

In Eisel, the court discussed [HN3] the factors under which a tort duty arises; these factors are: foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability. 597 A.2d at 452-55. A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons. We decline to hold, as the district court effectively does, that Laurel has no duty to warn of the danger of the rafting trip it sells to its customers.

In this case, however, the error proved harmless because the warnings given, as a matter of law, were adequate. * The district court based its opinion on the proposition that there was no duty to warn. Because the record is clear and the facts apparent, however, we need not remand for consideration. Cf. Federal Deposit Insur. Corp. v. Jones, 846 F.2d 221 (4th Cir. 1988).* The district court correctly noted that the warnings Laurel gave were adequate as a matter of law and that the general dangers of white-water rafting are apparent. However, it assumed for purposes of summary judgment that this was not the case and based its holding on other grounds.

There can be no real dispute that Laurel gave Sanders adequate warnings of the hazards of white-water rafting in general and the enhanced hazards of rafting the upper Youghiogheny in particular. Warnings need only be reasonable, they need not be the best possible warnings in the circumstances. Nolan v. Dillon, 276 A.2d 36 (Md. 1971). In this case, Laurel provided several warnings of the general risks and at least one specific warning that Sanders could fall out and be injured. A more specific or adequate warning could not be required.

Furthermore, it is uncontestable that Sanders had previously been on a white-water rafting experience and had twice signed release cards that specifically warned of the dangers of falling out, capsizing and injury. Even if Sanders neither heard nor read the many warnings given him, the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip. See Saenz v. Whitewater Voyages, Inc., 226 Cal. 3d 768, 276 Cal. Rptr. 672 (1st Dist. 1990).

Given the obviousness of the general risks involved, the warnings given of the specific risk from which Sanders was injured, and his previous rafting experience, Sanders assumed the risk of his injury. [HN4] Under Maryland law, participants assume the obvious and apparent risks of engaging in such sports. Nesbitt v. Bethesda Country Club, 314 A.2d 738 (Md. App. 1974). Clearly under Maryland law, if a plaintiff, as here, voluntarily exposes himself to a known danger of which he was warned or otherwise knows of, he has assumed the risk that danger poses. Gibson v. Beaver, 226 A.2d 273 (Md. 1967).

III

With regard to the claims that Laurel failed to rescue Sanders at the earliest opportunity and that it failed to render proper first aid, we have considered the briefs and the arguments of the parties and affirm on the reasoning of the district court. Sanders v. Laurel Highlands River Tours, Inc., No. CA-91-1507-S (D. Md. Nov. 15, 1991). We further find the claim that Laurel was strictly liable as a common carrier to be without merit. Accordingly, the decision of the district court is affirmed.

AFFIRMED

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Oldja v. Warm Beach Christian Camps And Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Oldja v. Warm Beach Christian Camps And Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Ted Oldja, Plaintiff, v. Warm Beach Christian Camps And Conference Center, Defendant.

CASE NO. C09-0122-JCC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

June 24, 2011, Decided

June 24, 2011, Filed

COUNSEL: [**1] For Ted Oldja, Plaintiff: Kenneth R Friedman, LEAD ATTORNEY, FRIEDMAN RUBIN, BREMERTON, WA; Michael N White, FRIEDMAN RUBIN, (BREMERTON), BREMERTON, WA.

For Warm Beach Christian Camps and Conference Center, Defendant: David R Goodnight, Vanessa Soriano Power, STOEL RIVES (WA), SEATTLE, WA; Francis S Floyd, Nicholas L Jenkins, FLOYD PFLUEGER & RINGER PS, SEATTLE, WA.

JUDGES: John C. Coughenour, UNITED STATES DISTRICT JUDGE.

OPINION BY: John C. Coughenour

OPINION

[*1209] ORDER

This matter comes before the Court on Defendant’s motion for summary judgment (Dkt. No. 49), Plaintiff’s response (Dkt. No. 53), and Defendant’s reply. (Dkt. No. 59.) Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.

I. BACKGROUND

In the summer of 2007, Ted Oldja attended a camp at Warm Beach Christian Camp (“Warm Beach”) in Stanwood, Washington. Mr. and Mrs. Oldja decided to ride on the zip line operated by Warm Beach. The zip line carried riders in a harness suspended from a cable by two ropes: a white rope, which acts as the primary connection between the harness and the cable, and bears the load of the rider’s weight; and [**2] a black rope, which acts as a secondary connection between the harness and the cable, and can be used as a safety line to slow the rider down.

Before a user rides the zip line, it is the job of the launch facilitator to follow a safety procedure. First, the facilitator tells the rider that they can hold on to either the white and black ropes during the ride, or just the white rope. The facilitator instructs riders not to hold only the black secondary line, because it will slow them down or stop them completely. The facilitator then double-checks the harness configuration, pulley attachments, safety helmet, and carabiners. The launch facilitator calls “zip clear” to the landing facilitator to communicate that the rider is ready, and the landing facilitator responds “zip clear” to communicate that the path is clear for the rider.

After watching his wife on the ride, it was Mr. Oldja’s turn. The launch facilitator, Paul Matthewson, testified that he followed the proper safety procedures. (Dkt. No. 49 Ex. 2 at 51- 53.) Matthewson testified that he did not see Oldja wrap his fingers in the white primary rope, and that Oldja’s fingers were not wrapped in the rope when Matthewson cleared him [**3] to go. (Id. at 60.) Some time after Matthewson called “zip clear,” Mr. Oldja, a mechanical engineer, wrapped his fingers in the white primary rope, and stepped off the platform. The load-bearing rope tightened [*1210] around his hand and crushed his fingers. Mr. Oldja was rushed to a hospital and has had several surgeries on his hand. Plaintiff filed suit against Warm Beach for negligence, product liability, and negligence per se under a variety of theories. Defendant now moves for summary judgment dismissal of all three of these claims. Plaintiff does not oppose summary judgment on the product liability claim.

II. APPLICABLE LAW

[HN1] Federal Rule of Civil Procedure 56(c) mandates that a motion for summary judgment be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There exists a genuine issue as to a particular fact–and hence that fact “can be resolved only by a finder of fact” at trial–when “[it] may reasonably be resolved in favor of either party”; conversely, there exists no genuine issue when reasonable [**4] minds could not differ as to the import of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Whether a particular fact is material, in turn, is determined by the substantive law of the case: “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Summary judgment, then, demands an inquiry into “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”; if applying the relevant law to those facts about which no two reasonable factfinders could disagree dictates that the moving party must prevail, then a motion for summary judgment must be granted. Id. at 250-52.

III. DISCUSSION

A. Duty of Ordinary Care

Plaintiff argues that it is well established that every business has a duty to use ordinary care in keeping its premises reasonably safe for use by business invitees. (Dkt. No. 53 at 10.) Defendant argues that Section 388 of the Second Restatement of Torts should govern the analysis. [**5] The Court addresses Section 388 below, but Section 388 governs only the duty to disclose and does not govern the duty of ordinary care. Defendant has not shown an absence of a genuine issue of material fact with respect to its alleged breach of the duty of ordinary care. Accordingly, summary judgment dismissal of this claim is denied.

B. Duty to Disclose

[HN2] With reference to a duty to disclose, The Supreme Court of Washington has adopted Section 388 of the Second Restatement of Torts, which states that the supplier is liable if he:

a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926, 928 (Wash. 1967).

Plaintiff argues that he is choosing not to pursue his claims under Section 388. Rather, Plaintiff argues that the Court [*1211] should consider Section 343A, which creates a duty to protect invitees from known or obvious dangers when the [**6] landowner should anticipate the harm despite such knowledge and obviousness.

Plaintiff is misguided. [HN3] He may choose the claims he brings, but he cannot choose the standard the Court will apply to those claims. Section 343 governs liability for an activity or condition on the land. Section 388 governs liability for use of a chattel. “Chattel” means movable or transferable property. Black’s Law Dictionary (9th ed. 2009). Defendant argues that the zip line is movable property, and Plaintiff does not challenge this characterization. The Court agrees. Plaintiff’s injury was caused by equipment on the land, not the land itself. Accordingly, Section 388 governs Plaintiff’s claims. Lunt v. Mt. Spokane Skiing Corp., 62 Wn. App. 353, 814 P.2d 1189, 1192 (Wash. Ct. App. 1991) (where injury arises from equipment not land, Section 388 not Section 343 governs).

[HN4] Each of the three criteria in Section 388 must be satisfied. The Court will begin with consideration of the second criterion. To prevail on this element at the summary judgment phase, Plaintiff must show some evidence that Defendant had no reason to believe that riders of the zip line would realize the dangerous condition. This is a dense piece of legal language, [**7] so an illustration is helpful.

In Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926 (Wash. 1967), a man disabled a safety feature on a truck that was designed to prevent the motor from starting if the car was in gear. He sold the truck to a mechanic and did not disclose that the safety feature had been disabled. When the purchaser started the truck, it lurched forward, striking and injuring the plaintiff. The Supreme Court of Washington noted that the man who had sold the car had no reason to believe that any future operator of the car would know that the safety feature had been disabled. Id. at 928. Because the seller had no reason to believe the defect would be discovered, he had a duty to warn of that defect. The defect was latent and no amount of common sense or automotive knowledge could inform a driver about that particular hazard. Dismissal of the seller was reversed.

In contrast, Mele v. Turner, 106 Wn.2d 73, 720 P.2d 787 (Wash. 1986) concerns a case where a young man borrowed a lawn mower from his neighbors, inserted his hand into the mower housing to clean out some wet grass, and injured four fingers. The young man admitted in an affidavit: “I obviously realized that one should not put [**8] his hand under the machine where the blade runs . . . .” Id. at 790. The Court held that because the dangerous condition was obvious and known, defendants had no legal duty to warn. Id. There was nothing latent about the defect, and common sense would inform the user of the hazard.

The present case is much closer to Mele than Fleming. Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only Defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:

Q. Did you know that if you wrapped the rope around your fingers and then you put weight on the rope, that that would tighten and cinch around your fingers?

A. The thought did not cross my mind.

Q. Okay. You didn’t think about that correct?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

[*1212] A. If someone asked me?

Q. Yes.

A. Yes.

(Dkt. No. 50 at Ex. A 196:14-197:1.) Given Plaintiff’s admission that he would have realized the danger if he had thought about it, Plaintiff cannot credibly argue [**9] that Defendant had no reason to believe that he would realize the danger.

The only evidence Plaintiff offers on this point is the testimony of Dr. Richard Gill, a Human Factors Engineering consultant. Dr. Gill was disclosed as a rebuttal expert, and testified that the scope of his work was to provide rebuttal testimony to the three defense experts. (Dkt. No. 60 at Ex. 1, Ex 2 16:8-9.) Dr. Gill’s expert report provides a series of conclusions about the behavior of zip line riders that does not rebut any of the testimony of Defendant’s experts. Rather, this type of testimony should have been disclosed in the initial expert discovery responses and is therefore untimely. Accordingly, Dr. Gill’s testimony regarding the behavioral tendencies of zip line or challenge course participants is STRICKEN. Plaintiff has failed to demonstrate a genuine issue of material fact with respect to Defendant’s liability under Section 388.

C. Liability for violation of state regulations

Plaintiff’s next argument is that Defendant was negligent pursuant to RCW 5.40.050 for violation of a state statute. [HN5] WAC 296-403A-190 states that amusement rides must be inspected by certified inspectors. RCW 67.42.010 and [**10] WAC 296-403A-100(2) provide the definition of amusement rides, but do not mention zip lines. Plaintiff argues that these definitions do include zip lines, and relies on a series of communications with the State of Washington Department of Labor and Industries (“L&I”) in 2009 and 2010 in support of this contention. (Dkt. No. 50 at Ex. 11.)

The Court interprets these communications very differently from Plaintiff. It is clear from these emails that the decision to include zip lines in the definition of “amusement ride” under WAC 296-403A-100(2) was not made until late 2009 or early 2010, more than two years after Plaintiff injured his hand on Defendant’s zip line. (Dkt. No. 50 at Ex. 11.) Plaintiff does not address this chronology in his briefing. It is misleading in the extreme for Plaintiff to characterize Defendant’s zip line as “unlicensed” when the licensing body had not yet decided that a license was required. Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s failure to comply with licensing requirements.

D. Common Carrier Liability

Plaintiff’s third argument is that Defendant is subject to common carrier liability. [HN6] Under Washington law, the duty [**11] of a common carrier to safeguard passengers from injury requires the carrier to exercise the highest degree of care consistent with the practical operation of its business or its type of transportation. Benjamin v. Seattle, 74 Wn.2d 832, 447 P.2d 172 (1968). Plaintiff acknowledges that there is no Washington caselaw addressing the issue of whether a zip line qualifies as a “common carrier,” but argues that this Court should expand the definition to include zip lines and similar amusement rides. In support of this argument, Plaintiff mentions a series of California decisions holding that a higher standard of care applies to amusement rides. Gomez v. Superior Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41, 47 (Cal. 2005) (holding that the same high standard of care applied to carriers of passengers should also apply to operators of roller [*1213] coasters); Neubauer v. Disneyland, 875 F. Supp. 672, 673 (C.D. Cal. 1995) (holding that under California’s broad common carrier statute, a Disneyland amusement ride may be a common carrier).

This argument stumbles into the yawning gap between the Washington and California common-carrier statutes. [HN7] California’s common carrier statute is broad: Every one who offers to the public to carry persons, [**12] property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. Cal Civ Code § 2168. Washington’s common carrier statute is narrow and exhaustive:

“Common carrier” includes all railroads, railroad companies, street railroads, street railroad companies, commercial ferries, motor freight carriers, auto transportation companies, charter party carriers and excursion service carriers, private nonprofit transportation providers, solid waste collection companies, household goods carriers, hazardous liquid pipeline companies, and every corporation, company, association, joint stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, and every city or town, owning, operating, managing, or controlling any such agency for public use in the conveyance of persons or property for hire within this state.

RCW 81.04.010(11). Plaintiff offers no argument or evidence for the proposition that this definition includes a zip line. Again, Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s liability as an alleged common carrier.

IV. CONCLUSION

Defendant’s motion [**13] for Summary Judgment (Dkt. No. 49) is GRANTED in part and DENIED in part. Plaintiff’s claims for breach of the duty of ordinary care survive summary judgment. Plaintiff’s claims for breach of the duty to disclose, claims relating to the violation of the WAC, and claims relating to common carrier liability are DISMISSED.

DATED this 24th day of June 2011.

/s/ John C. Coughenour

John C. Coughenour

UNITED STATES DISTRICT JUDGE