Herberchuk v. Essex County 4H Club Camp, Inc. et al., 1999 Mass. Super. LEXIS 99

Herberchuk v. Essex County 4H Club Camp, Inc. et al., 1999 Mass. Super. LEXIS 99

Alicia Herberchuk v. Essex County 4H Club Camp, Inc. et al.

96-4863

SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX

1999 Mass. Super. LEXIS 99

March 11, 1999, Decided

JUDGES: [*1] Raymond J. Brassard, Justice of the Superior Court.

OPINION BY: RAYMOND J. BRASSARD

OPINION

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Plaintiff, Alicia Herberchuk (“Ms. Herberchuk”), brought this action for recovery of damages for injuries sustained while on land owned by defendant, Essex County 4H Club Camp, Inc. (“4H”), while attending an outing accompanied by co-workers employed by defendant, Teleglobe Communications, Inc. (“Teleglobe”). The plaintiff alleges that the injuries were caused by the negligence of the defendants and that there are genuine issues of material fact which preclude the entry of summary judgment on the issue of liability. For the reasons set forth below, defendants’ motions for summary judgment are ALLOWED.

BACKGROUND

Viewing the facts available at this summary judgment stage in the light most favorable to the nonmoving party, Ms. Herberchuk, the undisputed facts are as follows.

On August 28, 1993, Ms. Herberchuk attended an employee outing at a campground owned by 4-H. The campground had been rented through a third party under the name of Teleglobe by certain of its employees, but not by Teleglobe itself. At the cookout [*2] Ms. Herberchuk observed other guests using an apparatus known as a zipwire. The zipwire was used by children who attended the 4H’s camp during the summer months. Using the zipwire involved climbing up a ladder which reached to a platform mounted on a tree, and then leaving the platform to traverse the entire length of the wire. Proper use of the zipwire required a safety helmet, a safety harness, a drag line, and several people assisting the rider. The zipwire also included an 8 inch square 2,000 pound-test pulley to which the safety harness was attached. At the end of the camping season all removable equipment, including the safety equipment, was required to be removed from the zipwire, leaving only the cable and the platform.

On the date in question, a ladder found on or near the campground was propped against the tree upon which the platform was mounted by unidentified parties allowing guests to access the zipwire. Hanging from the zipwire was a nylon rope described as green in color which other guests were using to slide down the wire. No rules or instructions on how to use the zipwire were posted on or near the apparatus on the day in question. After watching several other [*3] people use the zipwire, Ms. Herberchuk decided she wanted to use the apparatus. In order to reach the zipwire, the plaintiff climbed the ladder. Although the ladder did not reach the platform at the end of the wire, Ms. Herberchuk was able to reach the platform by pulling herself up by her hands. Once on the platform Ms. Herberchuk wrapped the rope around her hands as she had seen others do and pushed herself off. Instead of traveling down the wire, however, Ms. Herberchuk fell to the ground sustaining serious injuries, including two elbow fractures and a fractured jaw. As result of these events Ms. Herberchuk commenced this lawsuit against 4H and Teleglobe. Both 4H and Teleglobe have moved for summary judgment on the issue of liability.

DISCUSSION

[HN1] Summary judgment shall be granted where there are no issues of material fact and the moving party is entitled to as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991); Cassesso v. Comm’r of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the [*4] absence of a triable issue and that, therefore, she is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). If the moving party establishes the absence of a triable issue, in order to defeat a motion for summary judgment, the opposing party must respond and allege facts which would establish the existence of disputed material facts. Id.

[HN2] A judge, when ruling on a motion for summary judgment must consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, in determining whether summary judgment is appropriate.” Flesner v. Technical Communications Corporation et al., 410 Mass. 805, 807, 575 N.E.2d 1107 (1991). Where no genuine issue of material fact exists, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Id. citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

1. The Claim Against 4-H.

[HN3] A property owner has a duty to maintain its property [*5] “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Mounsey v. Ellard, 363 Mass. 693, 708, 297 N.E.2d 43 (1973). A defendant is not required to “supply a place of maximum safety, but only one which would be safe to a person who exercises such minimum care as the circumstances reasonably indicate.” Toubiana v. Priestly, 402 Mass. 84, 88, 520 N.E.2d 1307 (1988). “A landowner has no duty to protect lawful visitors on his property from risks that would be obvious to persons of average intelligence.” Id. at 89.

In the present case, Ms. Herberchuk claims there are genuine issues of fact concerning the condition in which the zipwire was kept, as well as, what actions 4-H took to prevent unauthorized use of the apparatus. The evidence on the record, for the purposes of this motion, includes affidavits from both Ms. Herberchuk and Mr. Charles G. Ingersoll, a member of the 4-H Board of Trustees, as well as exhibits, including photographs of the area immediately before the accident.

In his affidavit, Mr. Ingersoll states that, while not having [*6] a specific memory of doing so the summer during which Ms. Herberchuk was injured, it was his practice to remove and put away for the winter all those removable parts and safety equipment associated with the zipwire at the end of each camping season (before the outing). Mr. Ingersol also stated that the ladder used by the plaintiff to get to the platform was not one of those presently used by the camp and that the pulley was not on the line the day of the outing. Ms. Herberchuk admitted in her affidavit that when she first arrived at the outing there was no ladder attached to the tree and that when she attempted to make her way to the platform she had to pull herself up because the wooden ladder placed there did not reach the platform. Ms. Herberchuk stated further that she did not know if the pulley was attached to the wire or where the strap had come from.

[HN4] “The question to be decided is whether the jury reasonably could have concluded that, in view of all the circumstances, an ordinarily prudent person in the defendant’s position would have taken steps, not taken by the defendant, to prevent the accident that occurred.” Id. at 89. In this case the evidence shows that 4-H [*7] had removed both the ladder and the safety equipment used with the zipwire during the camping season. Upon arriving at the outing Ms. Herberchuk saw no ladder allowing entry to the platform rendering the zipwire inaccessible, it being twenty feet above the ground. Ms. Herberchuk chose to use the zipwire without the benefit of safety equipment or instructions on the use of the device. Ms. Herberchuk also admitted in her deposition that she knew there was a chance she could be injured but decided to use the apparatus. Further, 4-H did not have a duty to warn Ms. Herberchuk of the obvious dangers involved with using the zipwire without safety equipment or instruction. “There is no duty to warn of dangers obvious to persons of average intelligence.” Thorson v. Mandell, 402 Mass. 744, 749, 525 N.E.2d 375 (1988). On this evidence, a fair minded jury could not return a verdict for the plaintiff.

2. The Claim Against Teleglobe.

[HN5] “Before liability for negligence can be imposed there must first be a legal duty owed by the defendant to the plaintiff, and a breach of that duty proximately resulting in the injury.” Davis v. Westwood Group, 420 Mass. 739, 743, 652 N.E.2d 567 (1995). [*8] Ms. Herberchuk urges that Teleglobe played a part in the organization and funding of the outing at which the plaintiff was injured. The evidence, however, is to the contrary. First, the outing was organized by Teleglobe employees because the company no longer sponsored such events. Second, the money to pay for the outing was raised by a group of employees independent of Teleglobe through the use of a raffle. Finally, Ms. Herberchuk’s attendance was not required by her employment and she received no compensation for attending. On this evidence a reasonable jury could not find that Teleglobe owed any duty to Ms. Herberchuk.

ORDER

For the foregoing reasons, it is hereby ORDERED that defendants’, 4-H and Teleglobe, motions for summary judgment are ALLOWED.

Raymond J, Brassard

Justice of the Superior Court

Dated: March 11, 1999


Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153

Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153

Claire A. Donahue, Appellant and Cross-Appellee, v. Ledgends, Inc. d/b/a Alaska Rock Gym, Appellee and Cross-Appellant.

Supreme Court Nos. S-14910/14929, No. 6932

SUPREME COURT OF ALASKA

2014 Alas. LEXIS 153

August 1, 2014, Decided

NOTICE:

THIS OPINION IS SUBJECT TO CORRECTION BEFORE PUBLICATION IN THE PACIFIC REPORTER. READERS ARE REQUESTED TO BRING ERRORS TO THE ATTENTION OF THE CLERK OF THE APPELLATE COURTS.

PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-10-07305 CI.

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-Plaintiff alleged injured party’s negligence claim failed because a release stated waived risks, used “negligence,” stated important factors in emphasized language, specifically disclaimed liability, did not imply safety standards conflicting with a release, was not contested on public policy grounds, and was not modified by advertising; [2]-The Uniform Trade Practices and Consumer Protection Act, AS 45.50.471 et seq., did not apply because conflicts with a personal injury claim barred assuming such a legislature intent, which “ascertainable loss of money or property” in AS 45.50.531(a) did not state; [3]-It was no clear error to find defendant gym waived Alaska R. Civ. P. 68 attorney’s fees because it only raised its offer of judgment when seeking fees under an indemnity clause, and only raised enhanced fees under Alaska R. Civ. P. 82, before its reconsideration motion.

OUTCOME: Judgment affirmed.

COUNSEL: Christine S. Schleuss, Law Office of Christine S. Schleuss, Anchorage, for Appellant and Cross-Appellee.

Tracey L. Knutson, Girdwood, for Appellee and Cross-Appellant.

JUDGES: Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION BY: MAASSEN

OPINION

MAASSEN, Justice.

I. INTRODUCTION

This case arises from an injury at a climbing gym. Claire Donahue broke her tibia during a class at the Alaska Rock Gym after she dropped approximately three to four-and-a-half feet from a bouldering wall onto the floor mat. Before class Donahue had been required to read and sign a document that purported to release the Rock Gym from any liability for participants’ injuries.

Donahue brought claims against the Rock Gym for negligence and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA). The Rock Gym moved for summary judgment, contending that the release bars Donahue’s negligence claim. It also moved to dismiss the UTPA claims on grounds that the act does not apply to personal injury claims and that Donahue failed to state a prima facie [*2] case for relief under the act. Donahue cross-moved for partial summary judgment on the enforceability of the release as well as the merits of her UTPA claims. The superior court granted the Rock Gym’s motion and denied Donahue’s, then awarded attorney’s fees to the Rock Gym under Alaska Civil Rule 82.

Donahue appeals the grant of summary judgment to the Rock Gym; the Rock Gym also appeals, contending that the superior court should have awarded fees under Alaska Civil Rule 68 instead of Rule 82. We affirm the superior court on all issues.

II. FACTS AND PROCEEDINGS

Ledgends, Inc. does business as the Alaska Rock Gym, a private indoor facility that is open to the public. Its interior walls have fixed climbing holds and routes; for a fee, it provides classes and open gym or free climbing time. There are signs posted around the Rock Gym warning of the dangers of climbing, including falling; at her deposition Donahue did not dispute that the signs were there when she visited the gym.

Donahue had been thinking about trying rock climbing for several years, and she finally decided in March 2008 to attend a class at the Rock Gym called “Rockin’ Women.” She testified that she chose the class because she thought it could be tailored to specific [*3] skill levels, and because she “got the impression [from the advertisements] that that is the type of group it was, that it was a . . . safe way to learn to climb.” She also testified she understood that the essential risk of climbing is falling.

Donahue had no rock climbing experience, but she was an occasional runner and cyclist and had pursued other high-risk athletic activities such as kite-boarding. She had been a river guide on the Colorado River after college. She had engaged in physical occupations such as commercial fishing and construction. She testified that she understood the nature of risky activities and felt competent to decide about them for herself. In connection with other recreational activities, she had signed releases and waivers similar to the one she signed at the Rock Gym. She testified that she understood that parties who sign contracts generally intend to be bound by them.

When Donahue arrived at the Rock Gym for her first class, she was given a document entitled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.” She was aware of the document’s nature and general intent but testified that although [*4] she signed it voluntarily, she did not read it closely.

The release contains nine numbered sections on two single-spaced pages. There is also an unnumbered introductory paragraph; it defines the Rock Gym to include, among others, its agents, owners, participants, and employees, as well as “all other persons or entities acting in any capacity on its behalf.”

Section one of the release contains three paragraphs. The first recites the general risks of rock climbing, including injury and death, and explains that these risks are essential to the sport and therefore cannot be eliminated. The second paragraph lists about a dozen specific risks inherent in rock climbing, including “falling off the climbing wall,” “impacting the ground,” “the negligence of other[s],” and “my own negligence[,] inexperience, . . . or fatigue.” The third paragraph asserts that the gym and its instructors “seek safety, but they are not infallible.” It describes some errors instructors might make, including being ignorant of a participant’s abilities and failing to give adequate warnings or instructions. The final sentence in the third paragraph reads, “By signing this [release], I acknowledge that I AM ULTIMATELY RESPONSIBLE [*5] for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals, or activities.”

Section two begins, “I expressly agree and promise to accept and assume all the risks . . .”; it then highlights the voluntary nature of participation in Rock Gym activities.

Section three is the clause that releases the Rock Gym from liability (the releasing clause). It reads in full,

I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym’s] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].

The next six sections of the release address other issues: indemnification for attorney’s fees, certification that the participant is fit to climb, permission to provide first aid, permission to photograph for promotional purposes, the voluntariness of participation and signing the release, and jurisdiction for claims arising from the release.

The ultimate paragraph is printed in bold. It reads in part,

By signing this [*6] document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.

Finally, centered on the second page, in bold capital letters directly above the signature line, the release reads: “I HAVE HAD SUFFICIENT OPPORTUNITY TO READ THIS ENTIRE DOCUMENT. I HAVE READ AND UNDERSTOOD IT, AND I AGREE TO BE BOUND BY ITS TERMS.”

Donahue’s hand-printed name and the date appear on the first page of the release, and her initials are at the bottom of the page; her signature appears on the second page, along with her printed name, her contact information, and the date.

Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. [*7] During this time she saw other people drop from the wall without injury. After another successful ascent near the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.

The Rock Gym had run various advertisements during the two years preceding Donahue’s accident, using a number of different slogans. One newspaper ad, running on at least three occasions, stated: “[T]the only safe place in town to hang out.” Another Rock Gym ad showed an adult bouldering and a child climbing while harnessed; its text contained the same slogan and added, in part, “Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.” A third ad described climbing programs for everyone in the family and said, “[Y]ou have nothing to lose and everything to gain.” In an affidavit, Donahue testified she had read these ads.

Donahue [*8] sued the Rock Gym for negligent failure to adequately train and supervise its instructors. She alleged that the Rock Gym was liable for its employee’s negligent instruction to drop from the bouldering wall. She also alleged a violation of the Unfair Trade Practices and Consumer Protection Act, contending that the Rock Gym’s advertisements “misleadingly advertised [the gym] as a safe place where users of its services had nothing to lose and everything to gain.”

The Rock Gym moved for summary judgment on all of Donahue’s claims. She opposed the motion and cross-moved for partial summary judgment herself, arguing that the Rock Gym had violated the UTPA as a matter of law and that the release she had signed was null and void.

The superior court granted the Rock Gym’s motion and denied Donahue’s cross-motion. It then granted the Rock Gym, as prevailing party, partial attorney’s fees under Civil Rule 82(a)(3).

III. STANDARDS OF REVIEW

[HN1] We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.1 In making this determination, we construe the facts in favor of the non-moving party.2 If the record fails to reveal a genuine factual dispute and the moving [*9] party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.3

1 Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013) (citing Yost v. State, Div. of Corps., Bus. & Prof’l Licensing, 234 P.3d 1264, 1272 (Alaska 2010)).

2 Id. (citing McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001)).

3 Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012).

[HN2] We decide questions of law, including statutory interpretation, using our independent judgment.4 We will adopt the most persuasive rule of law in light of precedent, reason, and policy.5 This requires us, when interpreting statutes, to “look to the meaning of the language, the legislative history, and the purpose of the statute.”6

4 Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003).

5 ASRC Energy Servs. Power & Commc’ns, LLC v. Golden Valley Electric Ass’n, 267 P.3d 1151, 1157 (Alaska 2011).

6 Id.

[HN3] “A superior court’s determination whether waiver occurred is a question of fact that we review for clear error.”7

7 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).

IV. DISCUSSION

A. The Release Is Enforceable And Bars Donahue’s Negligence Claims.

Three cases define Alaska law on pre-activity releases from liability.8 [HN4] These cases consistently state that such releases are not per se invalid;9 in each of the cases, however, we concluded that the release at issue did not bar the plaintiff’s claim.

8 Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991).

9 Kerr, 91 P.3d at 961-62 (noting that “under Alaska law pre-recreational exculpatory releases are held to a very high standard of clarity”); Moore, 36 P.3d at 631 (noting that “an otherwise valid release is ineffective when releasing a defendant from liability would violate public policy” (emphasis added)); Kissick, 816 P.2d at 191 (“A promise not to [*10] sue for future damage caused by simple negligence may be valid.” (quoting 15 Samuel Williston, A Treatise on the Law of Contracts § 1750A, at 143-45 (3d ed. 1972)); see also Mitchell v. Mitchell, 655 P.2d 748, 751 (Alaska 1982) (upholding provision not to sue in settlement agreement and noting that, “[a]s a matter of law, . . . a valid release of all claims will bar any subsequent claims covered by the release”).

Kissick v. Schmierer involved a plane crash that caused the deaths of all four people aboard.10 The three passengers had signed a covenant not to sue before they boarded the plane.11 They agreed in the release not to bring a claim “for any loss, damage, or injury to [their] person or [their] property which may occur from any cause whatsoever.”12 When the passengers’ surviving spouses filed wrongful death claims against the pilot, their claims were allowed to proceed despite the release.13 We ruled that [HN5] “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.”14 We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do.15 Further, since liability for “death” was not specifically disclaimed and the term “injury” [*11] was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.16

10 Kissick, 816 P.2d at 188.

11 Id. at 189.

12 Id.

13 Id.

14 Id. at 191 (citations omitted).

15 Id. (citing W.Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 483-84 (5th ed.1984) (footnotes omitted)).

16 Id. at 191-92.

The second case, Moore v. Hartley Motors, involved an injury during a class on driving all-terrain vehicles (ATVs).17 We first addressed whether the plaintiff’s signed release violated public policy.18 We noted that the type of service involved was neither essential nor regulated by statute;19 these factors, along with the voluntariness of the plaintiff’s participation, persuaded us that the defendants 20 had no “decisive advantage in bargaining strength.”21 We therefore held that the release did not violate public policy.22

17 36 P.3d 628, 629 (Alaska 2001).

18 Id. at 631-32.

19 Id. at 631-32 (noting that ATV riding is similar to parachuting, dirt biking, and scuba diving, for which releases have been upheld in other jurisdictions).

20 The defendants included the dealer that sold the plaintiff the ATV and referred her to the safety course, the ATV Safety Institute that developed the curriculum, and the individual instructor. Id. at 629.

21 Id. at 631-32.

22 Id.

We did decide, however, that the release did not conspicuously and unequivocally [*12] express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass.23 The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.”24 We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore improper.25

23 Id. at 632.

24 Id.

25 Id. at 633-34.

The third case, Ledgends, Inc. v. Kerr, involved the same rock gym as this case.26 It involved a similar injury as well, sustained when the plaintiff fell from a bouldering wall.27 Unlike Donahue, however, who landed squarely on the floor mat, the plaintiff in Kerr was allegedly injured when her foot slipped through the space between two floor mats.28 The plaintiff alleged the gym knew of the defect in the landing area but had failed to fix it.29

26 91 P.3d 960 (Alaska 2004).

27 Id. at 961.

28 Id.

29 Id.

The superior court, whose order we approved and attached as an appendix to our opinion, cited Kissick [*13] for the notion that a pre-activity release for tortious conduct must be “clear, explicit, and comprehensible in each of its essential details.”30 The superior court also noted the requirement that “such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the release.”31 With these principles in mind, the superior court pointed to language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.32 The superior court construed this ambiguity against the drafter and held that the release was not valid as a bar to the plaintiff’s negligence claims, a holding we affirmed.33

30 Id. at 961-62 (quoting Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991)) (internal quotation marks omitted).

31 Id. at 962 (quoting Kissick, 816 P.2d at 191) (internal quotation marks omitted).

32 Id. at 963.

33 Id.

In this case, the superior court concluded that Kissick, Moore, and Kerr, considered together, meant that [HN6] “an effective liability release requires six characteristics.” We agree with the superior court’s formulation of the list:

(1) the risk being waived must [*14] be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.

The superior court found that each of these characteristics was satisfied in this case, and again we agree.34

34 Donahue does not challenge the release on public policy grounds, so the fourth characteristic of a valid release is satisfied here. Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities. Kissick, 816 P.2d at 191 (“A promise not to sue for future damage caused by simple negligence may be valid.” (internal citations [*15] and quotation marks omitted)). The New Jersey Supreme Court, in a case involving claims against a health club, held that liability releases in gym cases do not violate public policy in part because gyms remain liable for their gross negligence or recklessness — levels of culpability not alleged in this case. Stelluti v. Casapenn Enters., 203 N.J. 286, 1 A.3d 678, 681 (N.J. 2010); see also City of Santa Barbara v. Super. Ct., 41 Cal. 4th 747, 62 Cal. Rptr. 3d 527, 161 P.3d 1095, 1102-03 (Cal. 2007) (surveying jurisdictions and concluding that “[m]ost, but not all” hold that releases of ordinary negligence in recreational activities do not violate public policy but “the vast majority of decisions state or hold that such agreements generally are void” if they attempt to release “aggravated misconduct” such as gross negligence).

1. The risks being waived (falling and instructor negligence) are specifically and clearly set forth.

[HN7] A conspicuous and unequivocal statement of the risk waived is the keystone of a valid release.35 Here, the release clearly and repeatedly disclosed the risk of the specific injury at issue: injury from falling while climbing. The following are excerpts from the Rock Gym’s release:

I specifically acknowledge that the inherent risks associated with rock climbing . . . include[], but [are] not limited to: falling off of the climbing wall, . . . impacting [*16] the ground . . . , general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant’s limits, . . . my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue . . . .

To the extent that the risk at issue is the risk of hitting the ground after falling (or dropping in what is essentially an intentional fall), the first characteristic of a valid release is satisfied by this language.

35 Kerr, 91 P.3d at 961; Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Kissick, 816 P.2d at 191.

Rather than focusing on her injury, however, Donahue focuses on its alleged cause, which she argues was the negligent training and supervision of Rock Gym instructors and the consequently negligent instructions she was given. She claims that the release did not specifically and clearly set forth this risk, and that she was therefore unaware that she was waiving the right to sue for instructor negligence.

But the release did cover this risk. The first paragraph expressly incorporates “employees” into the definition of the entity being released. The release further warns that Rock Gym “instructors, [*17] employees, volunteers, agents or others . . . are not infallible” and that “[t]hey may give inadequate warnings or instructions.” In its on-site interactions with the public, the Rock Gym necessarily acts through its instructors and other employees; Donahue knew she would be taking a class and that classes require instructors. It would not be reasonable to conclude that the Rock Gym sought a release only of those claims against it that did not involve the acts or omissions of any of its employees, and we cannot construe the release in that way.36 We agree with the superior court’s conclusion that “the Release clearly expresses that it is a release of liability for the negligence of the releasor-participant, other participants, climbers, spotters or visitors, as well as [the Rock Gym’s] negligence, including [Rock Gym] employees.”

36 See Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 4 Cal. Rptr. 3d 103, 75 P.3d 30, 40 (Cal. 2003) (holding that “the risks associated with learning a sport may themselves be inherent risks of the sport. . . . [A]nd . . . liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities” (internal citations and quotation marks omitted)).

Donahue also argues that [*18] she could not understand the risks involved due to the release’s appearance and presentation. However, even viewing the facts in the light most favorable to her, the record does not support her argument. Although Donahue did not carefully read the release before signing it,37 she was aware she was signing a liability release. She has signed a number of such documents in the past and was familiar with their general purpose. When asked to read the release at her deposition, she testified that she understood the pertinent risks it described. There is no reason to believe that she would have found it less comprehensible had she read it at the time she signed it.

37 [HN8] Failure to read a contract in detail before signing it is no defense to its enforceability. Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991).

2. The waiver of negligence is specifically set forth using the word “negligence.”

Kissick and Kerr both emphasize that a valid release from liability for negligence claims requires use of the word “negligence.”38 This requirement is met here.

38 Kerr, 91 P.3d at 961; Kissick, 816 P.2d at 191.

The Rock Gym’s release first lists negligence among the inherent risks of climbing (“the negligence of other climbers or spotters or visitors or participants” and “my own negligence”). It then provides: [*19] “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the Rock Gym].” (Emphasis added.) The phrase “any and all claims” is thus expressly defined to include claims for negligence.

Cases from other jurisdictions support the conclusion that the language in the Rock Gym’s release covers all of Donahue’s negligence claims. In Rosencrans v. Dover Images, Ltd., the plaintiff was injured on a motocross track after falling from his bike and being struck by two other riders.39 A California Court of Appeal concluded that the signed waiver releasing the track from liability for “any losses or damages . . . whether caused by the negligence of [the Releasees] or otherwise” precluded the plaintiff’s claim “for ordinary negligence as well as negligent hiring and supervision” of employees at the racetrack (though it did not release the track from liability for gross negligence — a claim not made here).40

39 192 Cal. App. 4th 1072, 122 Cal. Rptr. 3d 22, 27 (Cal. App. 2011).

40 Id. at 30. See also Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App. 2002) (“Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an [*20] employer’s direct negligence rather than on vicarious liability.” (citations omitted)).

In short, the requirement that a waiver of negligence be specifically set out using the word “negligence” is satisfied by the Rock Gym’s release.

3. The important factors are brought home to the releasor in clear, emphasized language with simple words and capital letters.

Donahue argues that although “negligence” is expressly mentioned and disclaimed in the release, its placement at the end of long sentences written in small font rendered its presence meaningless to her. Quoting a California case, she argues that when the risk of negligence is shifted, a layperson “should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.”41 Donahue also cites New Hampshire and Washington cases in which the structure and organization of releases obscured the language that purported to shield the defendants from claims.42 These cases considered factors such as “whether the waiver is set apart or hidden within other provisions, whether the heading is clear, [and] whether the waiver is set off in capital letters or in bold type.”43 In one Washington case, a release [*21] was invalidated because the releasing language was in the middle of a paragraph.44

41 Conservatorship of the Estate of Link v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, 515 (Cal. App. 1984).

42 See Wright v. Loon Mtn. Recreation Corp., 140 N.H. 166, 663 A.2d 1340, 1342 (N.H. 1995); Johnson v. UBAR, LLC, 150 Wn. App. 533, 210 P.3d 1021, 1023 (Wash. App. 2009).

43 Johnson, 210 P.3d at 1023 (citing Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (Wash. 1971)).

44 Baker, 484 P.2d at 407.

Fundamentally, Donahue argues that the Rock Gym’s release was so ambiguous and laden with legalese that she lacked any real ability to understand that she was agreeing to release the Rock Gym from the negligence of its instructors. She complains of the release’s “lengthy, small-printed, and convoluted” language which required a “magnifying glass and lexicon” to decipher. She points out that the clause purporting to release the Rock Gym from liability is not obvious or emphasized through bold print or capital letters. She testified at her deposition that she believed the waiver shielded the gym only “from frivolous lawsuits, from people blaming them for something that’s not their fault.”

It is true that the release’s text is small and the releasing clause is in the middle of the document toward the bottom of the first page. But the clauses addressing negligence do not appear to be “calculated to conceal,” as Donahue argues. Though not highlighted, they are in a logical place where they cannot be missed by someone who reads the release. The clause releasing the Rock Gym from liability is [*22] a single sentence set out as its own numbered paragraph, and it is not confusing or needlessly wordy.45 The inherent risks of climbing are enumerated in great detail but using ordinary descriptive language that is easy to understand.46 Several sentences are devoted to the role of the gym’s “instructors, employees, volunteers, agents or others,” stating that they “have difficult jobs to perform,” that they “seek safety, but they are not infallible,” and that they may “be ignorant of mine or another participant’s fitness or abilities” and “may give inadequate warnings or instructions.”

45 Paragraph 3 of the release reads: “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym’s] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].”

46 Paragraph 1 of the release lists the inherent risks of climbing as including “but . . . not limited to”:

falling off of the climbing wall, being fallen on or impacted by other participants, poor or [*23] improper belaying, the possibility that I will be jolted or jarred or bounced or thrown to and fro or shaken about while climbing or belaying, entanglement in ropes, impacting the ground and/or climbing wall, loose or dropped or damaged ropes or holds, equipment failure, improperly maintained equipment which I may or may not be renting from [the Rock Gym], displaced pads or safety equipment, belay or anchor or harness failure, general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant[‘s] limits, the negligence of other climbers or spotters or visitors or participants who may be present, participants giving or following inappropriate “Beta” or climbing advice or move sequences, mine or others’ failure to follow the rules of the [Rock Gym], my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue — some or all of which may diminish my or the other participants’ ability to react or respond.

Because [HN9] releases should be read “as a whole” in order to decide whether they “clearly [*24] notify the prospective releasor or indemnitor of the effect of signing the agreement,”47 we consider these provisions in the context of the entire document. Three other sections of emphasized text mitigate Donahue’s complaints about ambiguity and incomprehensibility. First, section one reads in part, “I AM ULTIMATELY RESPONSIBLE for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals or activities” (bold in original). This alone makes it clear to the reader that the Rock Gym, to the extent it is allowed to do so, intends to shift responsibility to the climber regardless of the actions of anyone else. Second, a final unnumbered paragraph, set out in bold letters, reads in part: “By signing this document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.” And finally, directly above the lines where Donahue entered her signature, her printed name, her contact [*25] information, and the date, the release reads, in bold and capital letters, “I HAVE READ AND UNDERSTOOD [THE RELEASE], AND I AGREE TO BE BOUND BY ITS TERMS.” If Donahue had read the release and found herself genuinely confused about any of its terms, she was prominently notified that she should inquire about it before signing.

47 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991).

The New Hampshire case on which Donahue relies, Wright v. Loon Mountain Recreation Corp., examined the release in question to determine whether “a reasonable person in the position of the plaintiff would have understood that the agreement clearly and specifically indicated the intent to release the defendant from liability for its own negligence.”48 Applying that test here, we conclude that a reasonable person in Donahue’s position could not have overlooked or misunderstood the release’s intent to disclaim liability. Our case law’s third characteristic of a valid release is therefore satisfied.

48 140 N.H. 166, 663 A.2d 1340, 1343-44 (N.H. 1995); see also Johnson, 210 P.3d at 1021 (holding reasonable persons could disagree about the conspicuousness of the release provision in the waiver, and remanding for trial).

4. Regardless of whether falling and instructor negligence are inherent risks of rock climbing, the release specifically disclaims [*26] liability for them.

The fifth characteristic set forth by the superior court 49 is that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.”50 This requirement stems from the release’s ill-defined scope in Moore; the injury that occurred — arguably caused by an unreasonably dangerous ATV training course — was not obviously included in the inherent risks of riding ATVs, which the signed release did intend to cover.51 Here, in contrast, the injury and its alleged causes are all expressly covered by the release, as explained above. Negligence claims are specifically contemplated, as are “falls,” “impact” with the ground, and “inadequate warnings or instructions” from Rock Gym instructors. Regardless of whether these are inherent risks of climbing, they are specifically covered by the release. This characteristic of a valid release is therefore satisfied.

49 As noted above, the fourth characteristic of a valid release — that it not violate public policy — is not at issue on this appeal. See supra note 34.

50 See Moore v. Hartley Motors, Inc., 36 P.3d 628, 633-34 (Alaska 2001).

51 Id.

5. The release does not represent or imply standards of safety or maintenance that [*27] conflict with an intent to release negligence claims.

The sixth characteristic of a valid release is that it does not imply standards of safety or maintenance that conflict with an intent to waive claims for negligence.52 The Rock Gym argues that nothing in the release confuses its purpose, unlike the release at issue in Kerr, which at least implicitly promised that equipment would be kept “in good condition.”53 We agree. In fact, far from providing assurances of safety, the release highlights the fallibility of the Rock Gym’s employees, equipment, and facilities, explicitly stating that the equipment may “fail,” “malfunction[,] or be poorly maintained” and that the staff is “not infallible,” may be ignorant of a climber’s “fitness or abilities,” and “may give inadequate warnings or instructions.”

52 See Ledgends, Inc. v. Kerr, 91 P.3d 960, 962-63 (Alaska 2004).

53 Id. at 963.

Donahue agrees that the release is not internally inconsistent, but she argues that the advertisements run by the Rock Gym had the same confounding impact on her understanding of it as the release’s language about equipment maintenance had in Kerr. She contends that she relied on the ads’ assurances that the gym was “a safe place” and the class “would be a safe way to learn to climb” when [*28] she enrolled in the climbing class. She argues that these assurances created ambiguity that, as in Kerr, requires that the release be interpreted in a less exculpatory way.

Although extrinsic evidence may be admissible as an aid to contract interpretation,54 the release here clearly defines climbing as an inherently risky activity. And we have said that

[HN10] where one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is a conflict, the specific section will control over the general.55

Were we to give the Rock Gym’s advertisements any weight in our analysis of the release, we would not find that their use of the word “safe” overrode the release’s very clear warnings about the specific risks of climbing.

54 Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (citing Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996)).

55 Id. (quoting Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)).

Because the advertisements cannot reasonably be considered as modifications to the release, and because the release does not otherwise contain implicit guarantees of safety or maintenance that could confuse its purpose, we find the final requirement of a valid release to be satisfied. The release thus satisfies all characteristics of a valid release [*29] identified by our case law, and we affirm the superior court’s grant of summary judgment to the Rock Gym on this issue.

B. The UTPA Does Not Apply To Personal Injury Claims.

[HN11] Under the UTPA, “[a] person who suffers an ascertainable loss of money or property as a result of another person’s act or practice declared unlawful by AS 45.50.471 may bring a civil action to recover for each unlawful act or practice three times the actual damages . . . .”56 Donahue alleges that, by publishing ads that gave the impression the Rock Gym was safe, the Rock Gym engaged in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce” which are unlawful under the statute.57 [HN12] We have not yet decided whether the statutory phrase “loss of money or property” includes personal injury claims. We now hold that it does not.

56 AS 45.50.531(a) (emphasis added).

57 AS 45.50.471(a).

[HN13] The UTPA was “designed to meet the increasing need in Alaska for the protection of consumers as well as honest businessmen from the depredations of those persons employing unfair or deceptive trade practices.”58 The act protects the consumer from deceptive sales and advertising practices,59 and it protects honest businesses from their unethical [*30] competitors.60 Donahue concedes that we have limited the UTPA to “regulating practices relating to transactions involving consumer goods and services.”61 She contends, however, that because we have never restricted the types of damages available for conduct within the UTPA’s reach, damages for personal injury should be recoverable.

58 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1052 (Alaska 2004) (quoting House Judiciary Committee Report on HCSCS for S.B. 352, House Journal Supp. No. 10 at 1, 1970 House Journal 744) (court’s emphasis and internal quotation marks omitted).

59 See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1244-45 (Alaska 2007) (affirming superior court’s award of treble damages against a car dealer for its insistence on enforcing an invalid contract); Pierce v. Catalina Yachts, Inc., 2 P.3d 618, 624 (Alaska 2000) (holding unconscionable sailboat manufacturer’s warranty in favor of buyers).

60 See, e.g., Garrison v. Dixon, 19 P.3d 1229, 1230-31, 1236 (Alaska 2001) (holding suit to be frivolous where real estate buyer’s agents sued competitors, alleging false and misleading advertising); Odom v. Fairbanks Mem’l Hosp., 999 P.2d 123, 127, 131-32 (Alaska 2000) (holding viable physician’s claims against hospital for retaliatory and anticompetitive behavior).

61 See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1062 (Alaska 2011) (holding the UTPA does not apply to residential leases) (citing Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999) (holding the UTPA does not apply to the sale of standing timber because it is real property rather than a consumer good)).

The superior court observed that there is nothing [*31] in the UTPA’s legislative history to support Donahue’s contention that the Alaska Legislature intended the act “to expand liability for personal injury or wrongful death or to supplant negligence as the basis for such liability.” The superior court identified “significant incongruities between the elements of common law personal injury claims and the UTPA, which suggest that the two claims cannot be reconciled.” The court explained:

For most of the past twenty years the Alaska Legislature has enacted and amended, in various forms, multiple iterations of tort reform aimed at reducing, not expanding, the scope of civil liability for personal injury and wrongful death. Expanding UTPA liability to personal injury and wrongful death would contradict many of the tort reform provisions enacted by the legislature in AS 09.17.010-080. For example, AS 09.17.020 allows punitive damages only if the plaintiff proves defendant’s conduct was outrageous, including acts done with malice or bad motives, or with reckless indifference to the interest of another person. The UTPA, on the other hand, does not require such a culpable mental state and almost as a matter of course allows a person to receive trebled actual damages. [*32] AS 09.17.060 limits a claimant’s recovery by the amount attributable to the claimant’s contributory fault; the UTPA, in contrast, does not provide a contributory fault defense. Moreover, AS 09.17.080 apportions damages between multiple tortfeasors whereas the UTPA does not permit apportionment of damages. A UTPA cause of action for personal injury or wrongful death would sidestep all of these civil damages protections.

We agree with the superior court that [HN14] the private cause of action available under the UTPA conflicts in too many ways with the traditional claim for personal injury or wrongful death for us to assume, without clear legislative direction, that the legislature intended the act to provide an alternative vehicle for such suits. The language of AS 45.50.531(a) — “ascertainable loss of money or property” — does not provide that clear direction. The legislature is well aware of how to identify causes of action involving personal injury and wrongful death, does so in other contexts,62 and declined to do so in this statute.

62 See, e.g., AS 04.21.020(e) (for purposes of statute governing civil liability of persons providing alcoholic beverages, ” ‘civil damages’ includes damages for personal injury, death, or injury to property of a person”); [*33] AS 05.45.200(4) (in statutes governing liability of ski resorts, “‘injury’ means property damage, personal injury, or death”); AS 09.10.070(a) (providing general statute of limitations for “personal injury or death”); AS 09.17.010 (limiting noneconomic damages recoverable “for personal injury or wrongful death”); AS 46.03.825(b)(1) (providing that limitations on oil spill damages do not apply to “an action for personal injury or death”).

Other states have similar laws, and their courts’ interpretations are helpful. Section 531(a) has a counterpart in Oregon’s UTPA, which likewise allows private actions by those who suffer a “loss of money or property.”63 The Oregon Court of Appeals, considering an action for personal injuries occurring after a mechanic allegedly misrepresented the state of a car’s brakes, held that the UTPA was not a vehicle for the pursuit of personal injury claims.64 It held that the Act plainly had a restitutionary purpose — “i.e., restitution for economic loss suffered by a consumer as the result of a deceptive trade practice.”65 It noted the lack of any legislative history “to the effect that by the adoption of that provision the legislature intended to confer upon private individuals a new cause of action for personal injuries, including [*34] punitive damages and attorney fees,” or of “any decisions to that effect by the courts of any of the many other states which have adopted similar statutes.”66 It emphasized the availability of common law remedies, which provided a range of possible causes of action for personal injury — negligence, breach of warranty, and strict products liability — and noted that these remedies provide for a more expansive range of damages, such as pain and suffering, not available under the UTPA.67

63 ORS 646.638(1); ORS 646.608.

64 Gross-Haentjens v. Leckenby, 38 Ore. App. 313, 589 P.2d 1209, 1210-11 (Or. App. 1979).

65 Id. at 1210; see also Fowler v. Cooley, 239 Ore. App. 338, 245 P.3d 155, 161 (Or. App. 2010).

66 Gross-Haentjens, 589 P.2d at 1210-11.

67 Id. at 1211. Other courts have reached similar conclusions. See Beerman v. Toro Mfg. Corp., 1 Haw. App. 111, 615 P.2d 749, 754 (Haw. App. 1980) (“[T]hough individual actions based on damage to a consumer’s property may be within the purview of [the Hawaii consumer protection act], the scope of the statutes does not extend to personal injury actions.”); Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 73 (Tenn. App. 1990) (“We must hold that the General Assembly intended for the Consumer Protection Act to be used by a person claiming damages for an ascertainable loss of money or property due to an unfair or deceptive act or practice and not in a wrongful death action.”); Stevens v. Hyde Athletic Indus., Inc., 54 Wn. App. 366, 773 P.2d 871, 873 (Wash. App. 1989) (“We hold actions for personal injury do not fall within the coverage of the [Washington consumer protection act].”).

We agree with the reasoning of the Oregon court and conclude that Alaska’s [*35] UTPA does not provide the basis for a claim for personal injury.

C. The Superior Court Did Not Clearly Err In Finding That The Rock Gym Waived Any Claim For Rule 68 Attorney’s Fees.

The superior court granted the Rock Gym, as the prevailing party, 20 percent of its reasonable, actual attorney’s fees under Civil Rule 82(b)(2). [HN15] Twenty percent of “actual attorney’s fees which were necessarily incurred” is the presumptively reasonable award for a party who prevails in a case resolved short of trial but who does not recover a money judgment.68

68 See Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) (“Awards made pursuant to the schedule of Civil Rule 82(b) are presumptively correct.”).

The Rock Gym contends that it should have been awarded fees under Civil Rule 68 instead. [HN16] Rule 68 provides that (a) where an adverse party makes an offer to allow judgment entered against it in complete satisfaction of the claim, and (b) the judgment finally entered is at least five percent less favorable to the offeree than the offer, the offeree shall pay a percentage of the reasonable actual attorney’s fees incurred by the offeror from the date of the offer, the percentage depending on how close the parties are to trial when the offer is made. The Rock Gym made a Rule 68 offer of judgment on February 7, 2012, over two months before [*36] the April trial date. Donahue rejected the offer. Under these facts, once judgment was granted in the Rock Gym’s favor, the conditions for an award of 30 percent of “the offeror’s reasonable actual attorney’s fees” under the Rule 68 schedule were satisfied.69

69 Alaska R. Civ. P. 68(b)(3). We note that the award of fees under Rule 68 was likely to be only nominally greater than that under Rule 82. Rule 68 affects only fees incurred after the date the offer is made, here February 7, 2012. The parties had already completed their summary judgment briefing by that time, and summary judgment was entered a month later.

The question presented here, however, is whether the Rock Gym waived any request for Rule 68 fees. The Rock Gym initially argued to the superior court that it should be awarded full fees because of express language in the release, which reads:

Should [the Rock Gym] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.

While arguing this point, the Rock Gym noted in a footnote that it was eligible for full fees under AS 09.30.065 (the statute authorizing the Rule 68 procedure). But it made that observation only in support of its argument [*37] for full fees under the release. Its motion did not otherwise mention Rule 68; rather, as an alternative to fees under the indemnity clause, the Rock Gym asked the court to use its discretion to award up to 80 percent of its fees under Rule 82 — far more than the scheduled award of 20 percent — in light of Donahue’s “vexatious” behavior, particularly having complicated the case with claims under the UTPA.

The superior court denied the Rock Gym’s request for full fees based on the release and ordered it to submit an affidavit detailing its counsel’s billings. The order also stated, “Plaintiff should address the effect, if any, of defendant’s Rule 68 offer on the amount of fees that may be awarded.” The Rock Gym submitted the required fee affidavit and also moved for reconsideration, again arguing that full fees should be awarded under the release’s indemnity clause; again relying on Rule 82 as an alternative; and failing to mention Rule 68 at all. Donahue submitted no response.

The superior court again rejected the Rock Gym’s argument based on the release’s indemnity clause and ordered the Rock Gym to submit a more detailed fee affidavit. The Rock Gym filed another affidavit which did not address the offer of judgment. [*38]

In its third order, the superior court again rejected the Rock Gym’s request for full attorney’s fees and awarded 20 percent of its fees under Rule 82(b)(2). The Rock Gym again moved for reconsideration. This time the Rock Gym argued that it was entitled to 30 percent of its fees under Rule 68, relying on the footnote in its first motion to contend that the argument was not waived.70

70 As noted above, the increased percentage of attorney’s fees would only apply to those fees incurred after the date the offer of judgment was made; the amount at issue thus appears to be minimal.

The superior court then issued its fourth order on fees. It reaffirmed its Rule 82 award, finding that the Rock Gym had not adequately or timely made a claim under Rule 68. The court observed that the Rock Gym’s failure to make the claim earlier was likely a “tactical decision, initially, to pursue full attorney fees based on indemnity rather than present all of its alternative fee award theories at once.”

[HN17] The superior court’s finding that the Rock Gym waived a request for fees under Rule 68 is reviewed for clear error.71 We see no clear error here. The Rock Gym’s reference to its offer of judgment in its motion for attorney’s fees was made only to support its [*39] request for full fees under the indemnity provision of the release; the only alternative it expressly requested was an award of enhanced fees under Rule 82. As the superior court observed, it was not the court’s duty in this context “to solicit additional arguments for a moving party.”72 Nor was the superior court obliged to consider the Rule 68 argument when it was raised for the first time in motions for reconsideration.73 And under the circumstances of this case, including the modest difference between fee awards under Rule 82 and Rule 68 and an apparent deficiency in the Rule 68 offer itself,74 we cannot see plain error.75

71 See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).

72 See, e.g., Forshee v. Forshee, 145 P.3d 492, 498 (Alaska 2006).

73 See Haines v. Cox, 182 P.3d 1140, 1144 (Alaska 2008) (holding that the plaintiff’s submission of evidence only when she moved for reconsideration forecloses her claim that the court abused its discretion by failing to rely on that evidence); Koller v. Reft, 71 P.3d 800, 805 n.10 (Alaska 2003) (noting that superior court is not obliged to consider documents presented for the first time with a motion for reconsideration).

74 The offer did not encompass the Rock Gym’s counterclaim against Donahue for contractual indemnity. See Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1089 (Alaska 2008) (“Both Rule 68 and AS 09.30.065 . . . implicitly require that an offer of judgment include all claims between the parties and be capable of completely resolving the case by way of a final [*40] judgment if accepted.”).

75 [HN18] The plain error doctrine requires a party to prove that the error waived below was “so prejudicial that failure to correct it will perpetuate a manifest injustice.” Forshee, 145 P.3d at 500 n.36 (quoting Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App. 2000)) (internal quotation marks omitted).

V. CONCLUSION

The judgment of the superior court is AFFIRMED.


Making statements contrary to release can be barred by a release, maybe, but may be gross, wilful and wanton negligence which the release does not stop.

Plaintiff signed a release to participate in the Warrior Dash race. An employee of the race was encouraging participants to dive into a mud pit. Plaintiff dove into the mud pit rendering himself a quadriplegic.

Sa v. Red Frog Events, LLC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

State: Federal District Court for the Eastern District of Michigan

Plaintiff: James Sa

Defendant: Red Frog Events, LLC, an Illinois corporation

Plaintiff Claims: negligence, gross negligence, and willful and wanton misconduct

Defendant Defenses: release and failure to state a claim upon which relief may be granted

Holding: for the defendant on the negligence claim because of the release, for the plaintiff on the gross negligence, and willful and wanton misconduct claims

Year: 2013

This case is possible still ongoing. How the final decision will evolve is unknown. However, the federal district court did arrive at some great analysis of the case.

This case comes out of the new fad, extreme obstacle racing. In these races participants run through live electrical wires, jump through fire and here, crawl through a mud pit. These races are known by various names, Warrior Dash, Spartan Race and Tough Mudder are the most well-known.

In this case, the plaintiff signed up for a Warrior Dash 5K race and signed a release. The release specifically warned against diving into the mud pit. The mud pit was right in front of the bleachers and the last obstacle on the course.

At the mud, pit was an employee of the defendant with a microphone, and loudspeaker “acting as an emcee” for the event.

Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged.

So many people were diving into the mud pit that people were blogging about it and posting photos online.

The plaintiff followed the emcee’s “encouragement” and dove into the mud pit resulting in paralysis from the chest down. The plaintiff sued, and the defendant filed a motion to dismiss.

A motion to dismiss is usually filed by the defendant prior to filing an answer. The basis is the pleadings are so lacking in any facts or there is no law to support a claim. In reviewing the motion, the court must accept the allegations and facts in the complaint as true. It is unclear in reading this case when the motion to dismiss was filed. This opinion is the court’s response to the motion to dismiss.

Summary of the case

The court first looked at whether the release acted to stop the negligence claims of the plaintiff. Releases are valid in Michigan. Under Michigan law a release’s validity:

…turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.

Whether the release is valid is a question of law. The plaintiff did not argue that he signed the release. The court pointed out possible ways the plaintiff could void the release which the plaintiff did not use.

He does not argue, for example, that (1) he “was “dazed, in shock, or under the influence” when he signed the Waiver; (2) “the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.

Ninety-nine percent of the time plaintiff’s attack the validity of the release based on their competence or understanding of the release. In not doing so, I would guess the plaintiff shocked the judge so he put in this language. The plaintiff’s first argued the release was invalid because:

…that “Red Frog fails to indemnify itself from its own negligent acts” because it “did not use the term ‘negligent’ and/or ‘negligence’ anywhere within the four corners of it’s (sic) Waiver & Release Agreement.

(This argument has been used endlessly and is so easily avoided. Use the word negligence in your release.)

Here the language used by the defendant met the requirements to put the plaintiff on notice that he was giving up his rights to sue for negligence. “…although an indemnity provision does not expressly state that the indemnitee will be shielded from its own negligence, such language is not mandatory to provide such indemnification.”

The release language under Michigan’s law is called the indemnity provision or clause. That translation of the phrase is different from most other states. Here, it is like saying, by signing the release the plaintiff agrees to indemnify himself for his injuries.

…the Waiver, titled as a “Waiver and Release of Claims, Assumption of Risk and Warning of Risk,” informed Plaintiff that he was relinquishing his right to sue Defendant for claims resulting from his participation in the Warrior Dash.

The next argument of the plaintiff’s is brilliant and if successful would bring down hundreds of releases across the United States. Releases written by attorneys or non-attorneys in an attempt to soften the blow will put statements in the release about how safe the activity is, how well run the operation is or that accidents rarely happen.

The plaintiff argued that other statements in the release gave the plaintiff the impression that the defendant would not be negligent in the operation of the race.

For support, Plaintiff points to the disclaimer portion of the Waiver stating that Red Frog: (1) “is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard;” and (2) “continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety.

The court did not accept this argument because the paragraph this language was in went on stating there was a risk of injury entering the race.

The final argument by the plaintiff was also unique and if accepted would invalidate dozens of releases. The plaintiff argued that the statements by the employee of the defendant, the emcee, invalidated the release. In legal language, the statements of the emcee “constituted a waiver and modification of the release of liability.”

In sum, Plaintiff argues, “[t]his conduct led James [the plaintiff] to believe a waiver had occurred and it was okay and safe to dive into the mud pit. Red Frog failed to correct the actions of participants who dove into the mud pit or further instruct through the speaker system that this type of behavior was not permitted.”

Under Michigan’s law, any waiver of a written contract must be in writing unless the waiver language is consistent with the strict compliance language of the contract. Meaning the waiver language must be of the same type and of the same legal tone as the original contract.

Even assuming that Michigan law permits parties to orally modify a waiver and release, the most Plaintiff has alleged is that Defendant’s actions modified the provision prohibiting Plaintiff from diving into the mud pit head first. Defendant’s actions cannot be interpreted, as pled by Plaintiff, as an agreement to modify the Waiver such that Plaintiff could hold Defendant liable for negligence due to injuries arising out of his participation in the Warrior Dash. Therefore, the Waiver bars Plaintiff’s negligence claim.

The court upheld the validity of the release and held the release stopped the simple negligence claims of the plaintiff.

On the second and third claims, gross negligence, and willful and wanton misconduct, a release under Michigan’s law does not work. The issue then becomes are there enough allegations to the facts in the complaint and documents filed with the court to this point to support the plaintiff’s claim of gross negligence, and willful and wanton misconduct.

Under Michigan’s law:

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” M.C.L. § 600.2945(d); Xu, 257 Mich. App. at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.”

Under Michigan’s law, a release does not stop claims for gross negligence. So the gross negligence claim survives the defense of release. The issue then is whether the plaintiff as plead enough facts that a jury may find give rise to gross negligence.

…it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless to demonstrate a substantial lack of concern for whether an injury would result.

The court, based upon the statements of the emcee at the mud pit encouraging people to dive into the pit were enough to possibly support a claim for gross negligence.

Under Michigan’s law, Wilful and Want misconduct is different and distinct from gross negligence.

“[W]ilful and wanton misconduct . . . [is] qualitatively different from and more blameworthy than ordinary, or even gross, negligence.”). The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to an-other, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.”

…willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.

Here again, the court found the actions of the emcee in encouraging participants to dive into the mud pit might be found to be an intent to harm or an indifference.

Here, a reasonable jury might conclude that the act of encouraging participants to jump head-first into the mud pit despite knowing the risks, to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such “indifferen[ce] to the likelihood that catastrophe would come to a [race participant.]”

Consequently, the court granted the motion to dismiss on the negligence claims and denied the motion to dismiss on the claims of gross negligence and wilful and wanton misconduct.

Again, this case probably is not over yet.

So Now What? 

Don’t give an injured participant the opportunity to sue you. Don’t dance with the possibility that your language you use instead of the word negligence will meet the requirements of the law.

JUST USE THE WORD NEGLIGENCE IN YOUR RELEASE!

Second, don’t allow anyone who is an employee or may appear to participants to be an employee to encourage people to take actions that might injure them or is contrary to the rules of your activity.

It seems to be common sense; however, in the heat of the activity or an unfounded belief the release is ironclad, people get excited and might encourage a participant to take risks they are not expected or ready for.

What do you think? Leave a comment.

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Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.

Spectators are business invitees, which are owed a high degree of care and never sign a release. Any event, sport, race or contest, the greatest chance of a lawsuit winning comes from those watching.

Mahan v. Keith Hall, d/b/a Keith Hall Rodeo, 320 Ark. 473; 897 S.W.2d 571; 1995 Ark. LEXIS 296; 68 A.L.R.5th 813

State: Arkansas Supreme Court

Plaintiff: Melonie Mahan as Next and Best Friend of Shawn Mahan

Defendant: Keith Hall, d/b/a Keith Hall Rodeo

Plaintiff Claims: negligence

Defendant Defenses: no negligence

Holding: for the defendant

Year: 1995

The injured minor paid to attend a rodeo put on by the defendant at the local fairgrounds. After finding their seat, the minor and a friend went to get a drink. They then walked around looking at the event. A horse bucked it’s rider off, circled the inside of the arena then broke through the gate where the two youth were standing injuring them. The plaintiff also argued that their view of the horse coming at them was blocked by the rodeo announcer.

The mother of the injured youth sued on behalf of herself and her son. The fairground was sued and settled out of court. The rodeo was put on by the defendant Keith Hall Rodeo. The court directed a verdict for the defendant finding the plaintiff had not proven their case. No evidence was presented that the defendant Rodeo was negligent.

A directed verdict is a decision by the court that one party has completely failed to prove their case, and the other party must win. Directed verdicts can be granted at any time during a trial or after the jury has rendered its verdict. “A motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict.” Directed verdicts are rare.

Summary of the case

The injured youth was a business invitee which the defendant owed a “duty to use reasonable care to prevent injuries” to him. The plaintiff argued that the fact the horse got through the gate was proof the gate was not secure. However, proof of an injury is not proof of negligence.

The trial court agreed, finding that while Ms. Mahan had proven an accident and had shown where it had occurred, she had not shown any breach of duty on the part of Mr. Hall. It is from the trial court’s granting of Mr. Hall’s motion for a directed verdict that Shawn appeals.

The court defined negligence as:

…the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner.

However, the plaintiff was not able to present any testimony or proof that the gate was not maintained in a reasonably safe condition. “…the fact that a[n] injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.”

The Supreme Court upheld the directed verdict of the trial court.

So Now What?

Two important points can be found in this decision. The first is just because there is an injury does not mean there is a lawsuit. The defendant must have done something or not done something to create liability.

The second is the identification of a very large group of potential plaintiffs. If you host/put on/conduct events/contests/races or other activities were spectators are present, anything goes wrong injuring a spectator you might be liable. Spectators are owed a high degree of care, based on the state, and you are probably required to keep them safe. Spectators don’t sign releases and if they are viewing the activity in an area where you have allowed them to stand, then assumption of the risk is probably not available as a defense.

What do you think? Leave a comment.

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Well written decision from Wyoming defines release law and how releases should be written.

This case is interesting because one of the attempts to remove the release from the decision was a claim the plaintiff was at the defendant gym working out because he was told to by a physician, and the gym was owned by a different physician.

Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

Plaintiff: James Massengill and Kaylea Massengill

Defendant: S.M.A.R.T. Sports Medicine Clinic, P.C.

Plaintiff Claims: Negligence, loss of consortium

Defendant Defenses: Release

Holding: For the defendant

The plaintiff was injured when a pin in a lat-pull-down machine that secured the weights came out, and he fell backwards injuring his wrist. The plaintiff sued, and the defendant raised the defense of release.

The plaintiff was told by his physician to exercise more. One day while at a drugstore, he had met an owner of the defendant gym, a physician, who talked to him about the gym.

The plaintiff and his wife went to the gym. They were given a release and told to take it home and read it. Three days later the plaintiff’s came back, signed the release and began to use the facilities.

The plaintiff had not asked for instructions on the lat-pull-down machine and did not ask for any because he had used one previously. He had been using the particular machine for a month and had noticed that the pin did not appear to fit when he was injured.

The trial court ruled the release was valid and barred the claims of the plaintiffs, dismissing the case. The plaintiff’s appealed. This case is based in Wyoming, which only has trial courts and the Wyoming Supreme Court, in intermediate appellate courts.

Summary of the case

The court first looked at the language of the release, to determine if the language was clear and unequivocal.

Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T., and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T.

The court found the language was clear and unequivocal as well as broad and specially released the defendant from claims and actions for negligence.

The court then examined the release based on contract law. Releases are contracts and are interpreted using traditional contract principles. The entire document is examined as a whole.

The language of the Agreement and Release is clear in manifesting an intention to release S.M.A.R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.”

Wyoming has four factors to examine to determine if a release is valid.

(1) whether a duty to the public exists;

(2) the nature of the service performed;

(3) whether the contract was fairly entered into; and

(4) whether the intention of the parties is expressed in clear and unambiguous language

The court found the release in question was properly reviewed by the trial court, and the release met all four tests. The court then looked at the plaintiff’s claims the release violated public policy. Under Wyoming law, a duty to the public exists “if the nature of the business or service affects the public interest, and the service performed is considered an essential service.” A release that affecting a public interest giving rise to a duty to the public is one that:

“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.”

In Wyoming, this list of businesses would be “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities.”

A health club or gym is recreational in nature and do not meet the requirements and do not qualify as a business suitable for public regulation. A gym or health club is not essential.

The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential….

Then court then looked at the plaintiff’s claims that he was at the gym for medical reasons. However, the court could find no evidence that the plaintiff was at the gym engaging in rehabilitation.

The court then looked at the plaintiff’s claim that there was a disparity of bargaining power between the parties which should void the release. However, this argument also failed.

Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.

The plaintiff’s raised one final argument that claimed the Wyoming Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123:

…creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity.

The court called this a convoluted argument and did not agree with the argument.

The final argument was based on the wife’s claim for loss of consortium. The court held there were two different ways this claim also failed. The first was the wife signed a release at the same time as her husband; the plaintiff and the release stopped her suit. Also because her claim of loss of consortium is derivative, meaning only can exist if the original claim exists, then her claim fails also.

The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order.

The court upheld the trial courts dismissal of the claims.

So Now What?

This is a great decision to assist in writing a release in Wyoming. Of interest was the fact the court pointed out, the plaintiffs were given three days to review the release before signing.

The four requirements for a release are similar to most other states. How you deal with the issue of someone at your facility for health or rehabilitation reasons might present a problem.

What do you think? Leave a comment.

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Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115

Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115

Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children Versus Tiki Tubing, LLC and Abc Insurance Company

NO. 2011 CA 1477

COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT

2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115

March 23, 2012, Judgment Rendered

NOTICE: NOT DESIGNATED FOR PUBLICATION.

PLEASE CONSULT THE LOUISIANA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.

SUBSEQUENT HISTORY: Writ denied by Parveen v. Tiki Tubing, LLC, 90 So. 3d 1063, 2012 La. LEXIS 1798 (La., June 15, 2012)

PRIOR HISTORY: [*1]

On Appeal from the 21st Judicial District Court, in and for the Parish of Livingston, State of Louisiana. District Court No. 128,216. The Honorable Elizabeth P. Wolfe, Judge Presiding.

DISPOSITION: AFFIRMED.

COUNSEL: Nicholas M. Graphia, Monroe, La., Counsel for Plaintiff/Appellant, Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children.

C. David Vasser, Jr., Baton Rouge, La., Counsel for Defendant/Appellee, Tiki Tubing, L.L.C.

JUDGES: BEFORE: CARTER, C.J., PARRO AND HIGGINBOTHAM, JJ.

OPINION BY: CARTER

OPINION

[Pg 2] CARTER, C.J.

The plaintiff appeals the summary judgment dismissing her suit for damages arising from the drowning death of her husband. For the reasons that follow, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Tiki Tubing, L.L.C. (Tiki) is a commercial enterprise located on the banks of the Amite River. During peak summer months, Tiki employs 10-15 full time employees. For a fee, Tiki provides customers with parking, tube rental, a bus ride upstream, and a beach entry and exit on the river. The tubing route on the Amite River takes approximately four hours to complete. The Tiki website describes the Amite River as “smooth and slow moving and … 1 to 3 feet deep with a few deeper holes from [*2] 6 to 8 feet deep.” The website continues: “All bodies of water have some inherent risks. Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The tubers are grouped together at the Tiki hut and bused upstream to the ingress point on the river. At this point, the tubers select their tubes and enter the water.

According to John Fore, the managing member of Tiki, there are no warning signs posted at the hut or along the river. Tiki provides life jackets free of charge to customers; however, customers are not required to wear them. Neither Fore nor the Tiki employees were aware of any prior drowning on the tubing route. There are no lifeguards or rescuers on staff, and employees are not trained in water safety or in cardiopulmonary resuscitation (CPR). Tiki employees do not travel the river with the tubers, and there is no emergency equipment along the river route or at the Tiki [Pg 3] facility. Tiki does hire off-duty Livingston Parish Deputies as independent contractors to assist with crowd control, public drinking, drugs, broken glass, and unlocking of cars. The deputies are not posted on the tubing route; they are not hired to handle medical [*3] emergencies.

On June 21, 2009, 37-year-old Mansoor Raja and two of his friends decided to tube the Amite River. Raja had never tubed before, and after reading about Tiki from its internet website, Raja, Akhlaq Akhtar, and Tariq Mehmood drove to the facility. The group was presented with a liability waiver at the hut, and Akhtar printed all three men’s names on the bottom of the sheet.1 Although Raja was with Akhtar when Akhtar completed the form, Raja did not read or sign the waiver. Akhtar remembered the men being given a document containing safety instructions and that this information also was posted on a board. According to Akhtar, all three men read the instructions, which specifically mentioned the availability of life jackets. Akhtar asked the other men if they needed life jackets, but the general consensus was that the water would not be deep enough and that the life jackets were not needed. The waiver sheet is the only “warning” at the Tiki facility.

1 The waiver is entitled “Participant’s Agreement, Release, and Assumption of Risk.” The bottom of the form has multiple lines upon which customers write their names.

The three men boarded the bus, rode upstream, retrieved their tubes, [*4] and entered the river. According to Akhtar, Raja and Mehmood were playing around and getting caught in trees in the water. Akhtar tried to rush the other two men along so that they would not get separated from the group. The water was shallow, and Raja and Mehmood were leaving their tubes and [Pg 4] swimming freely in the river. The three men continued in this fashion for 15 to 20 minutes.

On the river trip, Raja was “getting excited.” He would leave his tube, swim downstream with the current, then wait for his tube to float to him. Raja did this four or five times. The men stopped to take a photograph, after which Raja said he would swim just one more length. Suddenly, while swimming ahead of his tube, Raja disappeared under the water. Then, Mehmood began having trouble in the water. Akhtar floated toward his friends and was able to help Mehmood get hold of the tube and out of the water. Raja, however, panicked and was unable to grasp the tube. According to Akhtar, the water was “too far deep” and moving much faster underneath the surface. Akhtar did not leave his tube in an attempt to pull Raja from the water because, according to Akhtar, the water was too deep and the current would [*5] have pulled him under too. Akhtar explained: “If you go to somebody who’s drowning, he’ll take you with him even if you are [a] good swimmer….”

Other floaters, noticing the commotion, began calling for help; the authorities were alerted with a call to 911, and another tuber ran toward the ingress point where several employees were working to notify them that someone was “lost.” Christopher Seese, a teenage employee of Tiki, stated that he first thought someone had simply gotten off his tube and run off. Upon realizing there was a problem, three employees ran to the scene. Fifteen to twenty tubers were sitting on the beach, and several tubers were swimming around in the deeper area of the river. The employees immediately entered the river. It took Christopher five to ten minutes to [Pg 5] locate Raja in the eight-foot-deep pocket in the river by dragging his foot in the water. Raja’s body was resting against a submerged log. According to Christopher, the current in the pocket was no stronger than the rest of the river; however, the water was deeper. It was estimated that it took an additional three to four minutes to get Raja out of the water and onto the shore.

Raja was brought to [*6] the shore, and another tuber was the first to attempt CPR. Because he was on the opposite side of the river, Akhtar estimated that it took him ten minutes to get to Raja after he was pulled from the water. Upon reaching shore, Akhtar observed that the unidentified tuber was performing CPR incorrectly, so Akhtar took over.2 Akhtar blew air into Raja’s chest, and Tiki employee Jacob Bourgeois assisted with chest compressions. Ultimately, four different people performed chest compressions on Raja, assisting Akhtar with CPR until the rescue helicopter arrived. According to Akhtar, Raja’s pulse was restored and he was warm to the touch prior to the arrival of paramedics and being airlifted to a hospital. Raja’s death certificate indicates he died the next day, June 22, 2009.

2 Akhtar explained that he had received training in CPR during military service.

Raja’s surviving spouse, Neelam Parveen, filed this wrongful death and survival action for damages against Tiki and its insurer, alleging Tiki’s negligent acts and omissions were a proximate cause of Raja’s death. After answering the petition, Tiki filed a motion for summary judgment, alleging Tiki did not breach any legal duty to Raja. Subsequent [*7] to the filing of Tiki’s motion for summary judgment, but prior to the hearing on the motion, the trial court granted the plaintiff leave to file a supplemental and amending [Pg 6] petition for damages. Therein the plaintiff alleged that she was entitled to punitive damages under general maritime law in that Tiki’s conduct was grossly negligent, reckless, and wanton. Thereafter, the plaintiff filed an opposition to Tiki’s motion for summary judgment, with attachments thereto, as well as a supplemental opposition.

Following a hearing, the trial court granted Tiki’s motion for summary judgment, and the plaintiff’s claims against Tiki were dismissed with prejudice. The plaintiff appeals, asserting several arguments in support of her position that summary judgment was improperly granted.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So. 3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So. 3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions [*8] on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966B. Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Proc. Ann. art. 966A(2).

Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. All Crane, 47 So. 3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La. Code Civ. Proc. Ann. art. 966C(2) [Pg 7]. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Id. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary [*9] burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966C(2); All Crane, 47 So. 3d at 1027.

In ruling on a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter but, instead, to determine whether there is a genuine issue of triable fact. All Crane, 47 So. 3d at 1027. A court cannot make credibility decisions on a motion for summary judgment. Id. In deciding a motion for summary judgment, the court must assume that all of the witnesses are credible. Id. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id. Whether a particular fact in dispute is “material” for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, 137.

[Pg 8] DISCUSSION

The plaintiff advances several theories of recovery for the alleged negligence or gross negligence of Tiki. [*10] Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.

The elements of a cause of action in tort are fault, causation, and damage. Seals v. Morris, 410 So. 2d 715, 718 (La. 1981). The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Id. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La. App. 1 Cir. 5/9/03), 849 So. 2d 622, 627, writ denied, 03-1579 (La. 10/3/03), 855 So. 2d 315. The inquiry is whether the plaintiff [*11] has any law–statutory, jurisprudential, or arising from general principles of fault– to support her claim. Faucheaux v. Terrebonne Consol. Government, 615 So. 2d 289, 292 (La. 1993); Fredericks v. Daiquiris & Creams of Mandeville, L.L.C, 04-0567 (La. App. 1 Cir. 3/24/05), 906 So. 2d 636, 639, writ denied, 05-1047 (La. 6/17/05), 904 So. 2d 706.

[Pg 9] Under Louisiana Civil Code article 2317, “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Louisiana Civil Code article 2317.1 modifies Article 2317 and provides in pertinent part:

[The] custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

The plaintiff alleges that in accordance with Article 2317.1, Tiki, as custodian3 of the tubing route on the Amite River, owed a duty to its patrons [*12] to employ safety measures to prevent drowning and to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. In order to prevail on a claim of negligence under Articles 2317 and 2317.1, the plaintiff will have the ultimate burden at trial of proving by a preponderance of the evidence each of the following elements: (1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise. See Riggs v. Opelousas General Hosp. Trust Authority, 08-591 (La. App. 3 Cir. 11/5/08), 997 So. 2d 814, 817. Failure to prove any one of these elements will defeat the [Pg 10] plaintiff’s claim and thus establish the defendant’s entitlement to summary judgment. See Grogan v. Women’s and Children’s Hospital, Inc., 07-1297 (La. App. 3 Cir. 4/16/08), 981 So. 2d 162, 165.

3 There are no allegations or evidence [*13] suggesting that Tiki owned the area of the river, or the land abutting that portion of the river, in which Raja drowned.

The Louisiana Supreme Court has instructed that determining who has custody of a thing is a fact-driven determination. Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So. 2d 1002, 1009. Courts should consider: (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. Dupree, 765 So. 2d at 1009. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” Id. at 1009. This court has held that a state-owned river cannot be in the custody of a landowner. See Tobey v. State, 454 So. 2d 144, 145 (La. App. 1st Cir. 1984) (a tubing accident did not result from any condition of the land).

Even if the plaintiff were to establish that material issues of fact remain in dispute regarding custody of the tubing route on the Amite River, the plaintiff also must prove that the portion of the Amite River at issue suffered from a vice or defect in order to recover damages under Articles 2317 [*14] and 2317.1. A defect is defined as a condition that creates an unreasonable risk of harm. Moory v. Allstate Ins. Co., 04-0319 (La. App. 1 Cir. 2/11/05), 906 So. 2d 474, 480, writ denied, 05-0668 (La. 4/29/05), 901 So. 2d 1076. The record establishes that Raja drowned in an area of the river described as a drop or a deep pocket. This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective [Pg 11] condition.”4 Johnson v. City of Morgan City, 99-2968 (La. App. 1 Cir. 12/22/00), 787 So. 2d 326, 330-31, writ denied, 01-0134 (La. 3/16/01), 787 So. 2d 315. Further, “variations in water depth within natural swimming areas are standard.” Johnson, 787 So. 2d at 330. Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. Sevin v. Parish of Plaquemines, 04-1439 (La. App. 4 Cir. 4/27/05), 901 So. 2d 619, 623-24, writ denied, 05-1790 (La. 1/27/06), 922 So. 2d 550. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.

4 Moreover, [*15] not every defect gives rise to statutory liability under Articles 2317 and 2317.1. Ruschel v. St. Amant, 11-78 (La. App. 5 Cir. 5/24/11), 66 So. 3d 1149, 1153. The defect must be of such a nature as to constitute a dangerous condition that reasonably would be expected to cause injury to a prudent person using ordinary care under the circumstances. Ruschel, 66 So. 3d at 1153.

The plaintiff argues that Tiki had a duty to provide an adequate and correct warning to customers regarding the dangers of tubing and the depth and current of the Amite River, and also had a duty to post lifeguards along the tubing route.5 Tubing has been defined as an activity that is obviously and inherently dangerous. See Tobey, 454 So. 2d at 146. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. See Hall v. Lemieux, 378 So. 2d 130, 132 (La. App. 4th Cir. 1979), [Pg 12] writ denied, 381 So. 2d 1220 (La. 1980). When a risk is obvious, there is no duty to warn or protect against it. Moory, 906 So. 2d at 478. Akhtar described Raja as “not a good swimmer.”6 Despite his limited swimming abilities and knowing that the water was over his head in parts, Raja voluntarily [*16] left his tube to swim freely in the river without a life jacket, allowing the current to carry him away from his tube.

5 Louisiana’s general negligence liability provision is found in Louisiana Civil Code article 2315. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under Article 2315. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So. 2d 270, 275. In order for liability to attach under a duty-risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault, 816 So. 2d at 275-76.

6 During the few times that Akhtar and Raja swam together in a pool, Raja would swim one pool length at a time, keeping [*17] his head out of the water the entire time. Raja would go in water over his head; however, he would hold onto a “pipe.”

Finally, citing to Harris v. Pizza Hut of La., Inc., 455 So. 2d 1364 (La. 1984), the plaintiff argues that Tiki assumed a duty when its employees attempted life-saving measures on Raja and then breached that duty by improperly performing CPR on Raja. In Harris, the supreme court held that a restaurant had a duty, once it hired a security guard, to have that guard protect patrons from the criminal activities of third persons in a reasonable and prudent manner. Id. at 1369. This court has recognized that the negligent breach of an assumed duty may create civil liability. McGowan v. Victory and Power Ministries, 99-0235 (La. App. 1 Cir. 3/31/00), 757 So. 2d 912, 914. If a person voluntarily or gratuitously undertakes a task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner. McGowan, 757 So. 2d at 914; see La. Civ. Code Ann. art. 2315.

Tiki employees acknowledged having no formal CPR training. Akhtar stated that he had been trained in CPR, and Akhtar was performing breathing assistance on Raja, while several [*18] others–including Tiki employees–assisted with chest compressions on Raja. The affidavit of the [Pg 13] plaintiff’s expert, Dr. Adam Broussard, set forth the CPR guidelines and concluded that, based on Jacob’s deposition, “the responders did not correctly perform CPR.” Dr. Broussard’s affidavit establishes that early CPR “performed correctly is the single most important intervention that can be performed in the field by a lay person.”

Raja was pulled from the water after being submerged for at least ten minutes. Akhtar stated that when Raja was brought up to the surface, he was not moving and not conscious. Akhtar began breathing into Raja with the assistance of four others, who took turns doing chest compressions. Akhtar observed that after the second person’s turn with chest compressions, Raja was warm to the touch and a pulse was discernible. Although Dr. Broussard’s affidavit establishes that CPR was performed improperly, his affidavit does not establish that the efforts of Tiki employees were unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.

CONCLUSION

The [*19] plaintiff failed to produce factual evidence sufficient to establish that she would be able to meet her burden at trial of proving by a preponderance of the evidence all of the elements of a cause of action in negligence or gross negligence. Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death. See Sevin, 901 So. 2d at 624. For the above-stated reasons, we affirm the trial court’s grant of summary judgment in favor of the defendant, Tiki [Pg 14] Tubing, L.L.C, dismissing the suit filed against it by Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children. Costs of this appeal are assessed to the plaintiff, Neelam Parveen.

AFFIRMED.

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Whitewater rafting, 13 injuries one death and release in WV are upheld. Management-level employees of DC health care company rafted river in allegedly high water causing injuries.

West Virginia Supreme court holds that admiralty or maritime law does not apply to whitewater rafting.

River Riders, Inc., v. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

Date of the Decision: December 10, 2008

Plaintiff on Appeal, Defendants at the trial court: River Riders, Inc., and Matthew Knott, Petitioners

Defendant: The Honorable Thomas W. Steptoe

Third parties on appeal: plaintiff’s at the trial court: Executor of the estate of the deceased and the 13 injured plaintiffs

Plaintiff Claims: failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code

Defendant Defenses: release

Issue on Appeal: Whether the trial court had improperly held the whitewater rafting trip was subject to federal admiralty law.

Holding:

This is an interesting case from a procedural perspective as well as a factual one. The issue on appeal is not a review of a complete ruling by the trial court but of a ruling that the defendants, and the court felt would influence the final decision. Meaning the defendant could convince the appellate court that the trial court’s ruling was probably wrong and unless corrected now, the entire trial would have to be done again.

The facts are people went rafting on the Shenandoah River in West Virginia. Before embarking on the trip each person signed a “Release, Assumption of Risk and Indemnity Agreement.” The water was higher than average on the day of the raft trip; 12.5 feet compared to an average of 2 to 4 feet. During the raft trip four of the rafts dumped, sending several people into the water, including the deceased and thirteen other rafters into the river.

Two separate lawsuits were filed over the incident. The first was by the estate of the deceased. The second lawsuit was filed by the other thirteen injured rafters.

The complaints of the plaintiff allege several issues:

…River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987).

…that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area.

…failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase.

The complaint for the wrongful death included the following claims:

two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a

Prior to trial, the plaintiff’s filed a motion in limine to exclude the release agreement which the court granted. The court relied upon a prior West Virginia Supreme Court case that held since there was a statute supporting and providing defenses for the whitewater rafting industry, a release was no long available as a defense. Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991)

Another motion in limine was filed by the plaintiff’s arguing that assumption of risk could not be a defense because the case was governed by maritime law.

Finally, the plaintiff’s filed a motion to consolidate both lawsuits into one and have one trial. This motion was also granted by the court.

The defendants then filed motions with the West Virginia Supreme court arguing that the motions of the trial court were wrong, and the court had to intervene for a fair trial to occur. This motion was called a Writ of Prohibition.

The West Virginia Supreme Court granted the Writ but only as to the issue of whether or not maritime law applied to a whitewater rafting case in West Virginia.

This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency.

The court declined to review the other issues because a writ of prohibition was not the proper way to argue the issues and timing of those issues were best left to the appeal of the case.

Summary of the case

To be subject to Federal maritime law a two-prong test must be met, “whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity.”

In determining whether or not the accident occurred on navigable waters the trial court should have included an analysis of “…whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” and determined the “the activity of whitewater rafting does not constitute traditional maritime activity and is therefore, not governed by maritime law.”

…given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to  the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted.

Nor could the court find any decision where admiralty law had been applied to whitewater rafting.

Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raftin rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity.

The appellate court sent the case back down with two of the rulings intact.

So Now What?

Admiralty law is a separate area of the law. It was developed prior to the formation of the United States for commerce between countries. It has very different rules for liability, worker’s compensation and other legal issues. In the US, admiralty law also applies to travel on major rivers and waterways. When and how admiralty law is applied is dependent upon the federal statute and the type of admiralty activity. As an example there are more than a dozen different definitions of navigable for different maritime activities.

Admiralty law came from commerce. Admiralty law has been applied to recreational activities in the past, such as using personal water craft, however, in all of those cases; the activity was on the ocean or large bodies of water.

Admiralty law could be used in some states on some rafting rivers as a defense, if handled by a law firm knowledgeable in admiralty law. If the jurisdictional issues are met, a defendant can go to court within six months of an accident and file a notice (open a case) and post a bond. The reason for doing this is, under admiralty law, the damages available to the plaintiff’s is limited to the value of the vessel and its contents after the accident. However, by doing this the raft company may be admitting liability and must prove it was an admiralty issue.

This law as created to limit the damages of a ship owner to not bankrupt the owner or the industry. A $10,000 raft, frame and gear are a relatively cheap and easy way to get out from under a potential claim. However, if you fail to meet the requirements but are still subject to admiralty law, you do not have several defenses normally relied upon to stop claims: releases and assumption of the risk.

To some extent, we are left hanging by the decision on whether a release is valid as a defense in a rafting accident in West Virginia. However, the decision on whether the federal maritime law is applicable is valuable.

What do you think? Leave a comment.

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Plaintiff tries to hold ski area liable for exceeding the state ski statute, however the court sees the flaws in the argument.

The New Hampshire Ski Area Safety Act only requires a ski area to post as a sign to close a run. The plaintiff tried to claim that a rope closing the run created greater liability rather more protection for skiers and boarders. A voluntarily assumed duty negligently performed is something always created in many outdoor recreation programs or businesses. However, it is not the change that is the legal issue. It is whether or not you increased the risk of harm to your guests that is controlling.

Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995

Plaintiff: Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do

Defendant: Loon Mountain Corporation, d/b/a Loon Mountain Ski Area

Plaintiff Claims: violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act

Defendant Defenses: New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act

Holding: for the defendant ski area

In this case, two people died and one person was injured on an icy ski slope. The first victim standing above the closed trail slipped and slid under the rope 900 feet to his death. The next two victims took off their skis and tried to hike down to the first victim. Both eventually fell sliding down the slope.

The survivors and the estates sued claiming violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act and common law negligence claims. The lower court dismissed all but two of the claims on the defendant’s motion to dismiss. Those two claims were eventually dismissed after discovery had occurred, and the defendant filed a motion for summary judgment.

The plaintiff’s appealed the dismissal.

Summary of the case

The trail the plaintiff’s fell down had been closed because it was icy. The New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act required that a notice be placed on signs at the base of the lift, on trail-boards, and a sign posted at designated access points.

The plaintiff argued that the trail had to be closed not only at the main access point to the trail, but all possible access points to the closed trail from other trail. The court looked at a trail map of the area and realized that the signage alone to mark a trail closed would be enormous.

The second argument was the most disturbing. The statute did not require that a rope be used to close a trail. Only a sign was needed to close a trail. By placing the rope across the trail the rope “could lure a skier closer to the icy entrance than one would go otherwise.” The plaintiff then argued that by a duty, voluntarily assumed but negligently performed was not protected by the ski statute.

There are situations where a voluntary act increases the risk of harm to someone creating negligence.

…but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care.

The district court rejected this argument.

[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.

Because the first person to fall slipped on an ice patch, which was an inherent risk assumed by the skier under the statute, the plaintiff could not argue the risk was increased. The risk was there, and the rope did not change or increase the risk.

The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.

The next two plaintiffs obviously assumed the risk and by taking off their skis, probably increased the risks themselves.

The remaining claims of the plaintiff were dealt with quickly. The first was the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act violated the New Hampshire Constitution. However, the New Hampshire Supreme Court had already ruled it did not. The final two were procedural in nature. Whether the question on appeal had been certified and whether the plaintiff’s request to amend their complaint had been improperly denied.

So Now What?

Cases like this scare outdoor recreation programs into not doing the next thing to make a program better because of fear of creating more problems. Do not allow the threat of a lawsuit from making your program better or safer.

Do make your changes or upgrades such that the changes do not place your guests in a place of increased risk or such that you have placed your guests in a position where they may be confused.

Any risk can be assumed by your guests, clients or skiers. You need to make sure that any changes in your program, operation or business results in a change in the information and education your clients receive about the risk.

Here the risk had not changed to the plaintiff so that the change, the actions above those required by the statute, did not increase the risk to the plaintiff’s. The icy spot was there whether or not the rope was placed closing the trail or where the rope was placed.

Do the right thing and continue with an education of your guests to make sure they know what you are doing and why and what those risks are.

What do you think? Leave a comment.

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Release and proof of knowledge stop claim from bicycle racer.

Records help prove even if your release is weak, the plaintiff really understood the risks.

Walton v. Oz Bicycle Club of Wichita, 1991 U.S. Dist. LEXIS 17655

Plaintiff: Eric Walton

Defendant: Oz Bicycle Club

Plaintiff Claims: negligence

Defendant Defenses: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton

Holding: for the defendant

In Walton v. Oz Bicycle Club of Wichita, the federal district court upheld a release used in a bicycle race. The race was held in Wichita Kansas, by the Oz Bicycle Club of Wichita. The plaintiff was rounding a corner in the lead on an open race course when he swerved to miss a car and crashed. An open bicycle race course means cars are on the roadway. An open course is not closed to traffic or pedestrians. A closed course, all cars have been prohibited on the course.

The defendant bicycle club filed a motion for summary judgment, which was granted by the court. The plaintiff when he signed up for the race was handed a release which he signed. The plaintiff had raced twenty to thirty times before and signed releases each time. He did not read this release but had read others and knew what he was signing. Prior to the start of the race the plaintiff had been informed that the course was not closed. The plaintiff encountered  traffic on the race course at least twice prior to his crash.

The plaintiff was an employee of a bicycle manufacturing company which was also a sponsor of the race.

Summary of the case

The court first reviewed the issue of whether Assumption of Risk was a defense at this time in Kansas. The court concluded it probably not because the Kansas Supreme Court had not handed down a decision that was specific in stating assumption of risk was a defense in Kansas.

The court quoted the heading and four paragraphs of the release in its decision. The heading of the release read: “NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.”

The plaintiff argued that releases were not favored under Kansas law; however, the plaintiff never showed how the release at issue, was void under Kansas law.

The court in one paragraph summed up the requirements for the release to be valid under Kansas law:

Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.”

The court looked at the release and found it to be valid. The release lacked the word negligence; however, it spoke to “rights and claims” for “any and all damages” sustained by participating in the event. The court concentrated on the fact the plaintiff had signed more than 20 other releases, participated in more than 20 races and had crashed in at least two races. This is another situation where the facts and knowledge of the plaintiff helped seal the release in the mind of the court.

So Now What?

It was obvious that the defendant’s ability to show the court 20-30 other releases for bicycle racing signed by the plaintiff was instrumental in proving the arguments of the plaintiff did not matter. You need to hold on to releases, you never know when one many years old maybe valuable in proving your case.

That does not require that you hold onto each paper copy of a release. Electronic copies are equally valid. Invest in a scanner and take all of your old releases and scan them. You can organize them by date or race or activity. You do not need to identify each release at the time. You cans scan them in a way that they are searchable later, and if you ever need to find one, you can.

Also instrumental was the fact the plaintiff was informed at the beginning of the race that the course was open, going to have cars on the course. Add to that the defendant could prove the plaintiff had avoided cars on the course during the race and had raced on open courses in the past. I would suggest putting important information such as the course being open into the release, so you can prove you gave the rider the information. Having that information in the release, should not, however, remove the responsibility to tell the people about the open course also.

While working at a ski area, we threw in the weather report and an area map into all big accident files. We never knew if any accident would lead to a suit, however, why worry about it. Make sure the file has everything you need, every back reference or proof needed when you build the file so you don’t have to search for it. We had a lot of stored weather reports and ski area maps, but if one was needed in a lawsuit, they were easy to find.

We also included all of the skiing history we had on the injured guest. Any logs from his skiing that year, each time his pass had been scanned if the injured guest had a season pass. Prior season pass or skiing history if we had it. Proof that the injured guest knew how to ski and assumed the risk or proof that the injured guest had signed numerous releases.

That ability to find information, electronically or on paper, saved the day in this bicycle race case.

What do you think? Leave a comment.

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Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

If the industry says you should and calls it a standard you better

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290 (Mass. Sup 2003)

Plaintiff: Derek A. Lautieri

Defendant: Jorun G. Bae

Third Party Defendants: defendants USA Triathlon, Inc., William Fiske d/b/a Fiske Independent Race Management, the Boys and Girls Clubs of Metrowest, Inc.

Plaintiff Claims: negligence and court added gross negligence

Defendant Defenses: Release

Holding: Holding release released defendants who could not be held to gross negligence.

This decision is from a trial court in Massachusetts. It has limited value in Massachusetts and other states.

If you have read many of these articles, you understand that releases do not bar claims for gross negligence. In this case, the release did not bar the claim for gross negligence, even when the plaintiff did not plead gross negligence.

This is a car/bike accident case during a triathlon. The plaintiff was cycling in a triathlon with several other cyclists. The defendant Bae, driver pulled out in front of the cyclists resulting in a collision. The course was not closed to traffic.

The defendant car driver brought in as third party defendants the race organizer, William Fiske d/b/a Fiske Independent Race Management (Fiske), the race charity Boys and Girls Clubs of Metrowest, Inc. (BGC) and the triathlon association sanctioning body USA Triathlon, Inc., (USTA).

The third party defendants were brought in for “contribution.” Contribution is defined in Massachusetts as:

Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom contribution is sought could have been held liable in tort.”

For the defendant, Bae to enable to enforce contribution against the third party defendants she must show that the third party defendants could be held liable at trial in tort. Any defenses available to the third party defendants against the original plaintiff will also be a defense to the contribution claim of the defendant Bae.

Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred.

Fiske was the person who put the triathlon together. Even though Fiske was operating as Fiske Independent Race Management, the court indicated that Fiske was not a corporation or company (LLC). USTA sanctioned the race, including providing liability insurance and standards, according to the court, on how the race should be run.

The defendant Bae argued that the third party defendants should be liable for failing to “a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred.”

The court determined that USTA was:

…the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

In that position, USTA created regulations for running triathlons which the court quoted:

2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.

Fiske did not follow any of the guidelines offered by the USTA.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

Summary of the case

The defense raised by the third party defendants was “release.” The plaintiff signed a release to join the USTA and receive a license. The plaintiff also signed an application which contained language similar to that of a release when she entered the race.

Under Massachusetts law, the enforceability of a release is a question (issue) of law to be decided by the court. “Massachusetts law favors the enforcement of releases.”

There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted.

Nor does the word negligence have to be found in the release. Releases, like all other states, do not bar claims of gross negligence. Neither the plaintiff nor the defendant complained of any gross negligence. The court, however, stated that even though not pled, gross negligence could be found later against Fiske. If that was the case, then the releases signed by the plaintiff did not bar the claim against Fiske. “While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.” The court found that the actions of Fiske could rise to the level of gross negligence.

The basis of that finding was Fiske did not follow the guidelines or regulations of the governing body, the USTA in running the race. “As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence.”

To some extent, the court must have thought that Fiske’s failure to follow the standards of the USTA was very egregious to raise the issue of gross negligence in the case.

The court quoted the regulations cited above as evidence that what Fiske did when ignoring the industry standards was sufficient to void the release because it raised the possibility that Fiske was grossly negligent.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

The court further defined negligence and gross negligence under Massachusetts law.

Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.”

The court’s justification for not letting Fiske out of the case and for allowing the possibility of a claim for gross negligence was interesting.

While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against the third-party defendants has been made.

Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants.

The court then looked at the allegations against the USTA.

In order for Lautieri to establish that USTA owed him a duty of care at the time the accident occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” or that USTA voluntarily, or for consideration, assumed a duty of care to Lautieri. This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet.

There was no evidence that showed USTA participated or was supposed to participate in the planning, operation, supervision or running of the race. USTA did not even have a representative of USTA attend the race. Consequently, because there was no duty and USTA created no duty to the plaintiff the release barred the claims of the third party defendant.

The court’s discussion of the Boys and Girls Club was shorter.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members.

USTA and the Boys and Girls Club were dismissed from the lawsuit.

So Now What?

The “release” or as identified by the court, application, was extremely weak. If the release had identified the course as being an open course, not closed to cars, this might have changed the outcome of the case for Fiske. No matter, the document was too weak not to create problems rather than resolve them in this case.

However, even if the release was stronger, it might not have gotten Fiske out of the case because of the court raised allegations of gross negligence. The USTA created regulations for running a race. By requesting and receiving sanctioning for the race, Fiske knowingly or unknowingly, became burdened or bound by those regulations. The court called them standards, regulations and guidelines throughout the decision, but the simple fact is they were a noose around the third party defendant’s neck.

You cannot look at your industry and not understand the standard of care in the industry or not find and follow the guidelines the industry is creating.

These “regulations” are fairly simple and appear to be commons sense. However, they substantially increase the cost of running an event. Closing a street requires government paperwork, government employees and usually help from law enforcement. All significantly increase the cost of running the event.

However, the regulations more importantly are proof that if an industry association creates regulations, standards, guidelines or rules, they are the standard of care against which members of the same industry will be judged in court.

For more articles on how standards created by an association are used to harm association members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Plaintiff uses standards of ACCT to cost defendant $4.7 million

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

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Release saves riding school, even after defendant tried to show plaintiff how to win the case.

As an expert you just can’t state facts, you have to prove your facts.

Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218

Plaintiff: Nicole Azad

Defendant: Mill Creek Equestrian Center, Inc.

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Release

Holding: for the defendant

This is a horseback riding case. The plaintiff was a beginner rider taking lessons from the defendant. The defendant’s instructor placed her in the jumping ring for training. Another horse in the ring spooked, which spooked the horse the plaintiff was riding. The plaintiff’s horse jumped the ring fence. The plaintiff fell off breaking her leg.

The plaintiff had signed a release before starting the lessons. The release was well labeled stating on each page that it was a release. The release also had a notice right above the signature line indicating the signor was giving up their legal rights.

The release, however, specifically stated that it did not prevent claims for gross negligence.

The plaintiff sued for negligence and after getting educated by the defendant, for gross negligence. The trial court dismissed the case after the defendant filed a motion for summary judgment. The plaintiff appealed.

Summary of the case

On appeal the plaintiff claimed:

…there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.

The court first looked at the validity of the release against a case argued by the plaintiff that found a release was insufficient. The court then only compared the release in this case to the arguments made in the case raised by the plaintiff.

The release was a two-page document. On the first page, it contained a titled, “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” On all other pages, it stated, “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, there was a statement that the signer was aware of the legal issues and acknowledgement of the legal issues.

The court found the release worked to stop claims of ordinary negligence but not gross negligence.

The court then reviewed California law on the duty owed by instructors in sports.

By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. A person does not consent to a breach of a duty by another that increases the risks inherent in the sport.  “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .'”

A sports instructor must intentionally injury a student or engages in conduct that is totally outside the range of ordinary activity to be liable. Other than those two issues, the participant assumes the risk of the sport.

… a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.’

In this case, the plaintiff had not raised any issues or facts, other than statements of the plaintiff’s expert witness who could support a claim of gross negligence. The plaintiff’s expert alleged the actions of the defendant were grossly negligent but did not demonstrate any facts showing an “extreme departure from the ordinary standard of conduct.” The court also pointed out the plaintiff stated the instructor was inadequately trained but not support her statement with proof.

The court in stating there was not proof of gross negligence stated:

Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity.

The court upheld the dismissal of the plaintiff’s complaint.

So Now What?

This release had 2 great points. The title and the heading on each page said this is a release. I’ve continuously stated that you cannot hide your release in other documents. It must be presented as a release to the signor and must plainly set forth the signor is giving up their legal rights.

However, don’t help the plaintiff sue you? Here the release said this document is no good if you prove I was grossly negligent. So what did the plaintiff need to do, prove gross negligence to win.

The facts of the case were pretty tame, and the injury to the plaintiff was relatively minor.

The court did look at what it would take to prove gross negligence from reviewing other cases. One was having a manual and showing an extreme departure from the manual.

If you write it down as the “way,” you better follow it.

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Louisiana does not allow the use of a release so great training of its patrons saved this climbing wall.

Education saves the day.

Ravey v. Rockworks, LLC, Et Al. 12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720

Plaintiff: Carl Ravey

Defendant: Rockworks, LLC, Colony Specialty Ins. Co.

Plaintiff Claims:

1. There is an increased duty to provide training and supervision when minors are involved in an inherently dangerous activity.

2. There are genuine issues of material fact regarding the adequacy of training received by the plaintiff party prior to engaging in a hazardous activity and regarding the adequacy of the supervision provided after training.

Defendant Defenses:

Holding: For the Defendant

The more you educate your guests the greater your success at a great trip and a win in court.

This case was based on a Civil Air Patrol Group (CAP) going to a climbing gym as part of its training. The CAP is composed of adults and minors; the plaintiff in this case was an adult in the group. The group went to the defendant’s climbing facilities as part of its training.

The participants paid the individual fees and then attended a 15-20-minute group training with an employee of the climbing wall. After the group training, the participants received training in pairs as belayer and climber. After that training, the belayer and climber were supervised. The plaintiff had climbed 5-6 times before he fell. The belayer was using a GriGri and held the brake open. The belayer released the break lever catching the plaintiff but not before he broke his leg.

The belayer for the plaintiff was 14 at the time of the accident.

The plaintiff brought a suit for negligence, which was dismissed after the defendant filed a motion for summary judgment.

Summary of the case

The first issue was whether the defendant owed the plaintiff a heightened duty of care because a minor was belaying him and/or because climbing is an inherently dangerous activity. The court then looked at what is required to prove negligence in Louisiana: “….a plaintiff must prove five separate elements: (1) duty, (2) breach, (3) cause-in-fact, (4) scope of duty/scope of risk, and (5) actual damages.”

The elements are basically the same as in any other state; they are just further identified and broken down into five requirements rather than the normal four in Louisiana. Most other states define negligence as duty, breach of duty, injury, damages proximately caused to the breach.

The court also explained the elements of duty in Louisiana.

Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law–statutory, jurisprudential, or arising from general principles of fault–to support his claim. The duty owed to an invitee “is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger

This duty necessarily includes a general responsibility to ensure that their members know how to properly use gym equipment.

The court did state that rock climbing is an “unreasonably dangerous activity” that requires a heightened duty upon the part of the gym owner. However, proof of that is evidenced of failing to provide the required supervision which has causation with the lack of supervision and the accident. Gyms are not the insurers of the safety of the patrons.

To prove negligence on the part of Rok Haus [defendant], Ravey [plaintiff] must show both a failure to provide reasonable training and supervision under the circumstances, as well as proof of a causal connection between this lack of reasonable training/supervision and the accident.

The defendant owed the plaintiff a duty of reasonable care. That was met, in the eyes of the court by the plaintiff.

The equipment was visually inspected prior to usage and was functioning properly after the incident. Ravey and Kelley [plaintiff and belayer] were given proper instructions on how to climb the wall and use the equipment properly. Ravey and Kelley were also observed using the equipment to lower climbers properly before they were allowed to climb and belay by themselves. During the time the group was climbing prior to the accident, two Rok Haus [defendant] employees observed the group to ensure they were using the gym’s equipment properly. Ravey made five or six successful climbs on the wall of the gym prior to the accident.

The next issue was whether the trainings the plaintiff and belayer received were adequate. Again, the court referred to the same set of facts.

The belayers must then operate the rope and the Grigri under the supervision of an instructor. After demonstrating an ability to belay the instructor, the belayers are allowed to belay volunteer climbers in the group under the supervision of the instructor.

This safety training session lasted approximately fifteen to twenty minutes. The members of the Civil Air Patrol group were individually instructed in safe climbing and belaying techniques and were observed operating the equipment properly before being allowed to climb and belay on their own. After receiving their safety training in the proper methods of belaying, Ravey, Kelley, and the rest of the Civil Air Patrol group climbed for forty-five minutes to an hour. During this time, two supervisors were present who observed the group to ensure that they were using the gym’s equipment properly. Ravey made five or six climbs on the wall prior to his accident.

The court stated that rock climbing involved substantial risk as a recreational activity. However, that risk was no different from weight lifting or swimming. The duty of the gym owner is to provide a “sound and secure” environment for undertaking any risk activity. There is no requirement to insure against any accident or injury.

The plaintiff could not point to any authority stating that a 14-year-old could not belay or any fact indicating the gym had not provided enough training. Consequently, the court upheld the dismissal of the complaint.

So Now What?

Here the climbing gym won because they had thoroughly trained the participants in climbing, belaying and the procedures of the gym. It also helped that the plaintiff had been belayed successfully 5-6 times prior to the incident which caused his injury.

The plaintiff also could not point out anything that the gym had done or failed to do that contributed to the injury. The training showed the participants how to belay; the belayer simply failed to use the belay device properly.

Education is what will save you. The more you educate your guests the more fun they will have. The more you educate your guests the safer they will be. The more you educate your guests the more prepared they will be. The more you educate your guests, the greater the chance you can prove you did not do anything wrong. The more you educate your guests the more you can prove your guests knew and undertook the risks.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

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News Week of June 3, 2013

Update on what is happening outside with a legal and risk management slant

Legal

Minors and Releases

PowerPoint presentation I gave on the legal issues of minor’s and releases. Where can a parent sign away a minor’s right to sue and where that will not work.

See http://rec-law.us/ZORtCW

 

Good News ASI was dismissed from the lawsuit

Bad news, the post-accident investigation proved the college was negligent according to the court.

This is a follow-up to the article, I wrote Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. The original article was about a motion to dismiss which the defendant safety audit company lost.

This article is the result of a motion for summary judgment filed on behalf of the defendant auditor which the court granted.

See http://rec-law.us/131HKWH

 

Paddlesports

Chart if you don’t know.

Infographic: How to pick the perfect campsite on a paddling trip. Of course you missed dinner and got attached by bugs by the time you followed this. Memorize it and enjoy the trip.

See http://rec-law.us/18CDJxY

 

Cycling

Cycling v. Smoking

Cyclists don’t get sick, smokers cost employers $5.8 K a year $3K in lost time and $2K in health care costs.

See http://rec-law.us/11l0sHn

 

Infographic title is The complete guide to interval training. Graphic helps you choose which types of training and why.

See http://rec-law.us/ZOQq6f

 

Bike share programs work

Does bike share programs work. This infographic would seem to indicate it does. Although no city has the breath of Paris, it is amazing how successful the program is in many US cities.

See http://rec-law.us/16GCgqW

 

Bike commuting is growing in the US

Infographic of where bike commuting is growing. Portland of course is through the roof, 443%, San Fran at 258% is impressive. There are a lot of places with large growth that the whole concept would seem to be foreign. Looking good.

See http://rec-law.us/11AN80h

 

Whose city is it?

Video of a man who is determined to stop bike theft in NYC. How, he buys and installs his own bike rack on the sidewalk. This is awesome. He dresses up, puts out cones and everyone ignores him because he looks like a city worker.

But he got caught and had to remove it.  This is the stupid part. A perfectly good bike rack has to be removed because it probably is not on some city bureaucrat’s planning map.

See http://rec-law.us/19t3Ia7

 

Cycling saves money

Study out of the #UK shows that people who commute to work by bike have half the sick days. Cyclists have 2.4 sick days per year compared to the national average of 4.5 sick days.

See http://rec-law.us/11EI4rT

 

Bike shop owners are old white males

Bike shop owners are white males

NBDA (National Bicycle Dealers Association) report shows that “89% of bike shop owners are men, 96% are white, 66% are baby boomers (age 48 to 67) and 26% Gen X (age 26-47).”

See http://rec-law.us/131chny

 

Cycling is Growing

However growth is in the women and minorities community! “League of American Bicyclists and the Sierra Club also reports that people of color are playing a key role in shifting transportation demand toward safer, more equitable and more accessible bicycling in their communities.”

See http://rec-law.us/16vPmHn

 

Mountaineering

New National Alpine Club being formed in Kazakh

New Alpine club is being formed, the Kazakh Alpine Club. In most European countries alpine clubs hold a lot of power, some are supported by their governments.

See http://rec-law.us/11GVCZM

 

Environment

Beautiful surf shots….if you can ignore the ocean pollution.

See http://rec-law.us/11hSygR

 

Golf Courses going Green

Golf courses are recognizing they are green oasis and working to be better at protecting our world. They are saving money doing it also.

See http://rec-law.us/13jqqOr

 

Google Street View finds the Galapagos

#Google street view finds the Galapagos Islands. The Galapagos are extremely fragile and over run. Will this help or hurt?

See http://rec-law.us/11pkPpV

 

Private effort to create massive park

Money raising is on-going to create the largest park in the US. The 500,000 acre American Prairie Reserve has raised 20% of the funding and received several gifts of land. The plan is to put a large segment of the US prairie back to what it was.

See http://rec-law.us/11mVv3I

 

This a very interesting article on many fronts

The main story is a woman fell hiking in the Pyrenees mountains of France. She fell over 1000’. When rescuers found her body it had been devoured by vultures, Bones, clothes and shoes were the only thing left.

Why is just as interesting. Because of mad cow disease, all dead livestock must be incinerated. Vultures are finding it difficult to feed with no livestock carcasses.

Another result is the vultures are attacking animals now and farmers are saying they should be killed for threatening livestock. As well as the vultures are spreading their range across Europe and being found in areas they did not formerly habitat.

See http://rec-law.us/18Gxycl

 

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Release for bicycle tour wins on appeal but barely

Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)

If the release were written properly, the appeal would not have occurred; maybe the lawsuit would not have occurred.

The decision from the Florida Court of Appeals looks at a release sued by the defendant bicycle tour company. An accident occurred when the front wheel fell off the bike injuring the plaintiff.

There are few facts in the decision. It is not clear if it was purely a bike rental or was a bike tour that included bikes. It appears it was a tour. Nor does the case describe how the wheel fell off or the injuries of the plaintiff.

At the trial court, the case went to trial with a jury decision for the defendant.

The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters.

Post-trial the plaintiff filed several motions to have the jury verdict reversed for a new trial. A new judge granted the motion for a new trial finding the release at issue failed to contain specific unambiguous language needed under Florida’s law for a release to be valid.

The defendant appealed.

Summary of the case

The plaintiff’s argument on appeal was the language of the release at issue did not have the necessary language. However, the court found the argument and the cases cited by the plaintiff to not be similar to the release at question.

Releases are valid under Florida’s law: “… waivers or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal.”

The release in question used the word negligence and relieved the defendant of all liability.

So Now What?

The entire release quoted by the court consisted of one paragraph. It is not clear if the release was longer or contained any other language; however, based on how the court quoted the release it does not appear to be.

The release squeaked through after spending thousands of dollars to defend and probably three or more years of time.

If you have your release properly written it is going to be much longer than one paragraph. That length may add three or more years to your life that do not contain litigation.

Plaintiff: Mark Schecter and Karen Schecter

 

Defendant: Travent, Ltd.

 

Plaintiff Claims: Negligence

 

Defendant Defenses: Release

 

Holding: For the defendant. The release was sufficient to stop the claims.

 What do you think? Leave a comment.

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In Nebraska a release can defeat claims for gross negligence for health club injury

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

Manufacturer of the health club equipment was able to squeak out a win by making sure the equipment met the applicable standards when the treadmill was manufactured.

This case is a health club fitness which is interesting because it covers several legal issues in ways that most courts will not. It also points out some simple things you can do to keep yourself out of court or losing in court.

A husband and wife, plaintiffs, joined a health club. After five weeks at the club the wife, went to get on a treadmill. She did not notice it was running and upon stepping on the treadmill she was thrown backwards into an elliptical trainer. The plaintiff had an injured hand and chest from the accident.

The area around the treadmill was allegedly, not well lit, however the plaintiff had not complained about the lighting. When she stepped on the treadmill she looked at the control panel but did not look at the belt. The treadmill was in a row of treadmills and the treadmills on either side of the treadmill in question were running. The plaintiff also said the treadmill area was loud.

The plaintiff had been using treadmills for 21 years. She had been using treadmills at the defendants approximately five times a week for five weeks and had used the treadmill in question 10 to 15 times. When she joined the defendant health club she received instructions from a trainer, but she stated she did not need instructions on how to operate a treadmill. The plaintiff also had a treadmill at home.

When the plaintiff and her husband joined the defendant health club she signed two documents which contained releases. The first was titled Membership agreement what had a release that included the word negligence in the language of the contract. The second form was a health history questionnaire which was signed by the plaintiff and also included release language.

The plaintiff and her husband sued the manufacturer of the treadmill, Precor, and the health club, Lakeside Wellness Center for her injuries. She claimed both defendants were negligent and were grossly negligent. Precor was allegedly negligent in making a treadmill without proper safety features and the health club was liable for not providing adequate lighting around the treadmill. There was also a claim that the health club had modified the treadmill belt so that it was unsafe.

The trial court granted both of the defendant’s motions for summary judgment. The plaintiff appealed saying the trial court erred in:

(1) granting summary judgment in favor of Lakeside and Precor;

(2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and

(3) holding that Palmer assumed the risk of using the treadmill.

Summary of the case

The court first looked at the issue of the release. The court ignored the issues of whether the release worked against negligence and reviewed the issues of releases and claims of gross negligence. However before starting its analysis, it dismissed Precor’s argument that it was a third party beneficiary of the release.

A third party beneficiary of a contract is usually identified as someone who is not named in the agreement, but obvious to all parties that they are to receive benefits of the agreement. An example would be a contract between a health club and a supplier of fitness equipment. The third party beneficiaries of that agreement would be the membership of the health club. When the third party beneficiary is not obvious in the agreement then the third parties as usually not construed as beneficiaries and do not have an interest in the contract.

In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.

Here the court found that the agreement between a member and the health club did not identify the defendant manufacture by name or by any other identification. Because of that, the manufacturer could not be a third party beneficiary of the release.

Court then went back to the issue of the claim of gross negligence. Under Nebraska law gross negligence is defined as

Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

Under Nebraska law the court could rule on whether the allegations of the complaint give rise to gross negligence. Here the court found the allegations did not. Inadequate lighting and the installation of a new belt on the treadmill did not meet the level needed to prove gross negligence.

Precor, the making of the treadmill in its motion to the trial court presented an affidavit stating that at the time the treadmill was made the treadmill “met or exceeded the voluntary guidelines set by the American Society for Testing and Materials” The affidavit included photographs of the treadmill to show what handrails existed and the fact that treadmill came with a clip that could be attached to the user’s clothing. If the clip was pulled it would disconnect and stop the treadmill. The treadmill was also made 7 years prior to the accident.

The plaintiff hired an expert who stated that the treadmill “should” have various safety features that were not on the treadmill. The court took note that the plaintiff’s expert did not say the treadmill had to have, did not speak in absolutes with regard to the safety features. Because the plaintiff’s expert was hesitant or could not be explicit on what was missing the court held that Precor was not negligent.

A third defense was raised on appeal, assumption of the risk, by the defendants. Because the court had dismissed the claims raised by the plaintiff already, the court did not get into that defense.

So Now What?

Obviously the better your release the greater your chances of winning. However there are several other issues here that you should pay attention too.

The plaintiff claimed that her injury was due to the fact the new belt on the treadmill did not contain markings that would indicate the treadmill was moving. If you replace or repair something, make sure you use equipment that meets the manufactures specs when you bought the machine or better. If the manufacturer had markings on the treadmill belt that indicated that the belt was moving you need to install a replacement belt that has similar markings.

Moreover, if you have the opportunity, whether or not the original belt was marked, to install a belt with markings, why not.

The assumption of the risk defense was not discussed by the court in its analysis, but was definitely part of the facts. In this case the defense team was able to elicit a lot of treadmill experience from the plaintiff. Many times, after an accident, the plaintiff will change their story. Getting experience or history up front is always safer.

And why not!

Why not include in your release language that protects everyone you can from litigation. There was a claim by the husband that one of the people running on the treadmill next to the one at issue had left that treadmill on. In some states, that would be enough to bring that other gym member into the suit. Write your release to keep you out of a lawsuit, also write it to keep everyone associated with your or that you benefit from out of the lawsuit. Just because you might not be named as the negligent party, you can still be brought in by the person who is named as the defendant. Protect you, your employees, other guests, visitors, volunteers, sponsors, and manufacturers dependent on what you do.

How many new customers are going to sign up as members if the word gets out you allowed one of them to be sued for an accident to another member.

If you do hear of problems from your guests or members, you need to respond. One issue that would have made the outcome different in this case would be a stack of “accident forms” or complaints about the lighting. If the plaintiff could prove that the lighting was bad because other people had complained about it or blamed it for their injuries, then I believe this would have had a different outcome. Don’t collect paperwork, solve problems.

 

Plaintiff: April Palmer

 

Defendant: Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc.

 

Plaintiff Claims: Negligence and Gross Negligence

 

Defendant Defenses: Release, Assumption of the Risk

 

Holding: for the defendants

 

What do you think? Leave a comment.

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Hawaii’s deceptive trade practices act sends this case and release back to the trial court

Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

Court agrees that the issue of not finding out that you had to sign a waiver until the time of the activity might be a deceptive practice.

This is a very interesting case. A couple booked several activities through a third party booking agency. The activity in question was a horseback ride. The plaintiffs had booked the ride several months in advance of the ride and upon showing up, were handed a release.

Upon arriving at the defendants, the plaintiff read the waiver and signed it and passed it on to her husband. The husband signed it, testifying in his deposition that he relied on his wife to read such documents.

The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it; they were waiving legal rights in return for being allowed to participate in the ride.

Of note was a statement made by the court that no guest of the defendant had ever refused to sign the waiver.

During the ride, one horse kicked the plaintiff in the shin causing her an injury. She and her husband sued for negligence, gross negligence and for unfair and deceptive practices.

The defendant responded with the plaintiff assumed the risk, the release barred the plaintiff’s claims and the ranch had done nothing to bring it into the purview of the Hawaiian Deceptive Trade Practices Act. (HRS §§ 480-2 and 480-13)

The trial court had granted the defendant’s motion for summary judgment, and the decision was appealed.

Summary of the case

The court spent the most time on the issue that booking a ride several months in advance and not finding out that a waiver had to be signed on arrival was a deceptive practice.

…they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply.

The plaintiffs did not argue that the waiver was deceptive, only the fact that they were not informed that a waiver had to be signed. If the practice was found to be deceptive, then the waiver would be void.

The Courbats do not allege that the waiver itself is deceptive; rather, they urge that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void.

After analyzing the fact the court found that there was an issue: “…whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.

However, if the trier of fact (jury) finds that a failure to warn the plaintiff was not deceptive, then the waiver would be valid.

The court then looked at the wavier to determine if met Hawaiian law. The court found that if the plaintiff signed the wavier, then the plaintiff was bound by its terms. Waivers, exculpatory contracts, are valid if they are “knowingly and willingly made and free from fraud.”

Waivers can be voided for three reasons in Hawaii.

“‘exculpatory clauses will be held void if the agreement is

(1) violative of a statute,

(2) contrary to a substantial public interest, or

(3) gained through inequality of bargaining power.'”

The court then looked at what was a public interest and found a public interest had the following characteristics:

[1] It concerns a business of a type generally thought suitable for public regulation.

 [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30]  a matter of practical necessity for some members of the public.

 [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

 [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive ad-vantage of bargaining strength against any member of the public who seeks his services.

 [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

 [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.

Recreational activities are unsuitable for public regulation; therefore, they do not violate the Hawaiian public interest definition that would void a release.

…while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.

Contracts of adhesion are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.

Because the plaintiffs had time to read and review the waiver, there was no coercion.

The court reviewed one final issue, waivers under Hawaiian law, like most other states do not stop claims for gross negligence or willful misconduct.

Consequently, the case was sent back for a jury to determine if the acts of the defendant, by and through its booking agency, acted deceptively or if the acts of the defendant were grossly negligent. If so the plaintiff would win the suit. If the acts of the defendant were not deceptive or the defendant was not grossly negligent the defendants would win at trial.

There was a dissent which found that the acts were not deceptive by law.

So Now What?

It is so easy to avoid most of the issues that were part of this appeal. One some signs up for a trip or activity, whether through you or a third party, they must be informed that they are going to sign a release.

It is that easy. Put it on the receipt, put it on the website, put it on the paperwork, in the brochure; put it everywhere. If you are in a state where the release is valid you will not go through the time, cost and expense of this type of litigation.

Every state has a deceptive trade practice’s statute. The statutes are enacted to protect consumers from dishonest businesses. The court did not examine the facts in light of an intentional act; just the practice alone was deceptive.

Don’t learn the act, just inform your guests.

 

Plaintiff: Lisa Courbat and Steven Courbat

 

Defendant: Dahana Ranch, Inc.

 

Plaintiff Claims: negligence, gross negligence, violation of the Hawaiian Deceptive Trade Practices statute.

 

Defendant Defenses: assumption of the risk, release, did not violate the deceptive practices act

 

Holding: reversed and sent back for trial

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Georgia does not have a lot of skiing, but you can rent skis there.

Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312

Release for renting skis stops litigation over failing of the binding to release.

In this case, the plaintiff rented skis from the defendant in Georgia. The plaintiff completed the rental agreement which included a fairly well written release. The rental company from the decision, asked the proper questions to calculate the DIN setting which in this case was 5 ½.

The plaintiff took the rented equipment on a ski trip. He made several runs, falling “uneventfully” the first day. None of those falls released the plaintiff from the bindings. On the last run while attempting to stop he fell releasing one binding but not the other. The leg in binding that failed to release suffered the classic skiing injury, torn ligaments in the plaintiff’s knee.

After the injury, the ski rental shop tested the binding which the test showed the binding passed.

The plaintiff sued for “breach of warranty, breach of contract, and negligence” and the plaintiff’s spouse sued for loss of a consortium. The defendant used the defense of release, and the trial court granted the defense motion for summary judgment.

Summary of the case

The first area of the law the court spoke to was the fact the relationship between the plaintiff and the defendant were bailor-bailee. Normally, this term is applied to someone in possession of another’s property. A valet is the bailee of your car when you hand over the keys. You are the bailor, the legal owner who has given temporary possession to another.

Once the court determined the relationship between the parties, then the court could conclude that the relationship was governed by the rental agreement.

The court then found that the plaintiff had failed to produce any evidence of negligence upon the part of the defendant. Then in a footnote, the court found that if the plaintiff had found evidence of negligence, the plaintiff still would have been bound by assumption of the risk. The court then went back to release and stated that even if negligence had been shown, the release would have prevented the suit.

“…in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy.”

The court then concluded the release did just that.

The remaining claims of the plaintiff were dismissed based on the analysis or the release.

The court finished with this line.

It is difficult to envision how the waiver language here could have been any clearer.

So Now What?

Get a good release written. Have your clients sign the release. Make sure your equipment meets the standards of the industry and maybe if you are faced with this issue, you will see this short and sweat answer to any litigation.

 

Plaintiff: Mr. and Mrs. Benford, no first name was ever given

 

Defendant: RDL, Inc. d/b/a Rocky Mountain Ski Shop

 

Plaintiff Claims: breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium

 

Defendant Defenses: Release

 

Holding: For the defendant on the release

 

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If you really are bad, a judge will figure out a way to void your release

Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423

Appellate court sends back to trial court on issue that release did not protect against Gross Negligence, and the deceased did not have time to read the release.

I guess I knew that these contests happened. I grew up in a rural community where we had greased pig contests, but nothing like this. The plaintiff entered a contest where he went into a rodeo and stood in a white circle. There were other participants also standing in circles. A bull was released into the ring. The last person standing in a white circle won. Prize money was $50.00. The contest was called the “Ring of Fear.” The bull struck the deceased bursting his liver.

$50.00?

The plaintiff’s spouse sued. The deceased prior to entering the ring signed a release. The release was comprehensive but apparently had all participant signatures on one form. Allegedly, the deceased was not given any time to read the release.

Prior to the bull being released into the ring, the bull was allegedly provoked by jabbing him with a wooden object and beating sticks against the bull’s cage. (I’m guessing PETA is not big in this part of Kentucky…….)

The trial court dismissed the complaint based on the release signed by the deceased. The plaintiff appealed.

Summary of the case

The appellate court first looked at the Kentucky Farm Animals Activities Act (FAAA) KRS 247.401 through KRS 247.4029. The court found the statute was applicable to the facts in this case. The court also found that the warnings found in the act provided immunity to defendants who posted the warnings. Failure to post the warnings did not create a claim of negligence per se or strict liability as the plaintiff argued. Failing to post the warnings simply failed to provide the immunity under the statute.

The court also found that the FAAA allowed farm animal event sponsors to sue the act if they posted the warning signs.

The court found that the FAAA had no duty to reduce or eliminate the inherent risks found in farm animal activities. The court also found that act did not protect sponsors that intentionally mistreat or aggravate a farm animal. That would be the antithesis of the purpose of the act.

The court then looked at the issue of the release and stated,

While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. [Emphasize added]

Although not a definitive statement on the issue, it appears that under Kentucky law, a release will protect a defendant against a claim of gross negligence.

Releases in Kentucky will be upheld if they meet the following tests if:

(1) it explicitly expresses an intention to exonerate by using the word “negligence;” or

(2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or

(3) protection against negligence is the only reasonable construction of the contract language; or

(4) the hazard experienced was clearly within the contemplation of the provision.

From a legal point, this is an extremely broad language about how a release will be interpreted by the courts.

The court then examined the release and found no language the court could interpret that could be used to say the release was going to stop a gross negligence claim. The court also found that intentionally mistreating the bull would “at the very least constitute gross negligence.”

The court followed up by stating that infuriating a bull would constitute willful of wanton conduct which “a party may not contract away any liability through a release.”

Finally, the court looked at a laundry list of additional issues raised by the plaintiff:

..that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it.

The court stated that those were all factual issues to be resolved by a trier of fact.

So Now What?

Although the issue that a release in Kentucky may protect against gross negligence is great as well as the broad language that can be used in a release in Kentucky, the last two issues mentioned by the court allow numerous ways to void releases in Kentucky and place a burden upon the business or program operating in Kentucky and using a release.

That is requiring an outfitter to see if a guest has the sufficient skills, ability and desire to undertake the activities and making sure the person signing a release has sufficient time to read the release.

Solving the problems of the Defendant

First, I would have raised an assumption of risk argument, although I am not sure of the status of A/R in Kentucky. However, I believe that it is pretty obvious that you can get gored by a bull in a ring. The deceased and the plaintiff were going to the event for a rodeo so it had to have been obvious, to some extent.

Second by having separate releases rather than one sign-up sheet, the argument that the deceased did not have time to read the release could have been diffused if not eliminated. If each person has a sheet of paper, then there is no rush to get all the signatures on one sheet of paper.

Still to be resolved

The issue that the defendant did not enquire as to the ability of the participant to participate in the Ring of Fire is an open-ended opportunity for every lawsuit in Kentucky to go to trial.

How are you going to determine the requirements for a participant to undertake an activity? No matter what system, test or determination you make, you did not do a good job if someone is hurt or injured on your trip. Nor can you use medical information to determine if someone can participate because unless you are a physician, that would require diagnosis which you cannot do.

The only solution you can come up with to create a system so the participants can self-determine if they are able to participate. Show a video or create a checklist.  Make sure your release states that the person has watched the video, seen your website and reviewed the checklist and understands it is their responsibility to determine if they are able to participate in the activity.

This could be a nightmare in Kentucky.

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Camp not liable for soccer injury because camp adequately supervised the game

Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547

Both defendants and plaintiff’s need to understand the standard of care, the limit of liability the defendant will be held accountable too.

In this case from New York, a 13-year-old,  called an infant by the court, sued a summer camp for an injury to his leg. While attempting to kick the ball, he and another camper collided and the other camper fell on the plaintiff’s leg. The plaintiff sued the camp for the injury. The defendant filed a motion for summary judgment, which was denied. The defendant appealed the motion and the appellate court overturned the lower court and dismissed the case.

An infant from a legal perspective is not a baby. An infant is anyone under the age of 18, not an adult.

Young player dribbling

The sole issue was the standard of care, the level of supervision the camp owed to the plaintiff. The court held the standard of care a camp or school owed was not an insurer of the safety of the camper but only liable for foreseeable injuries. Even then those foreseeable injuries must be caused by an absence of adequate supervision.

Schools or camps are not insurers of the safety of their students or campers, as they “cannot reasonably be expected to continuously supervise and control all of their movements and activities” Rather, schools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision.

The lack of adequate supervision must relate to the injury. A failure to supervise, which created the foreseeable injury must be the cause of the accident. Additionally, that accident must be one that can be supervised. If the accident occurs in such a manner that supervision could not intervene, then there can be no liability.

Moreover, even if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained “Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the … defendant is warranted”

There was also an issue that the expert witness did not discuss all the issues necessary to prove the camp was liable for the injury. The expert report stated the camp should have provided shin guards, and that shin guards were required. However, the expert did not state that the type of game being played by the plaintiff, an informal summer camp game was held to the same rules as high school games.

So

The plaintiff’s complaint did not seem to contemplate the level of supervision required from a camp. Like schools, camps are not required to keep kids safe. They are required to do the following.

·        Keep kids safe from foreseeable risks

·        Adequately supervise kids.

The first is the hardest. Kids can get hurt any and always.  Consequently, foreseeable is very hard. However, the easiest way to see foreseeable and for the plaintiff to prove foreseeable is if the accident had occurred previously at your camp or any camp. If you keep track of injuries and accidents, you better do something about each and every one of the reports. A report is proof of foreseeability of a risk.

That is a great reason to attend your trade association meeting or conference. You can learn from other members of your industry or your insurance carrier of the accidents they have had. If you have a similar program, you have been given a gift, you have identified foreseeable before a plaintiff has.

Kids Soccer Burien

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Marshall v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marshall v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marvin Marshall and Christine Marshall, Plaintiffs-Appellees, v Boyne USA, Inc., Defendant-Appellant.

No. 301725

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 928

May 15, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-091822-NF.

CORE TERMS: half pipe, terrain, skiing, ski, jump, skied, hit, inhere, hazard, trail, sport, downhill, feet, Safety Act SASA, ski resort, skier, slope, top, morning, timing, reversing, booth, edge

JUDGES: Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ. HOEKSTRA, P.J., (concurring).

OPINION

Per Curiam.

Defendant appeals by leave granted from the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand.

In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend, Randy. They skied several trails that morning, and also skied in the terrain park. Plaintiff was familiar with and had skied in terrain parks, which he described as having “jumps and different obstacles[.]” Plaintiff saw a warning sign at the entrance to the terrain park, but he did not read it.

The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skiers ski inside of the half pipe. On the morning of February 5, plaintiff saw the half pipe in the terrain park, but he did not ski into it. Plaintiff skied in an area just to the right of the half pipe.

After lunch, plaintiff and his friend went into the terrain park for a second time. They entered the terrain park from the left side this time. [*2] Plaintiff skied down the terrain park and hit the edges of a series of jumps. When plaintiff was halfway down the hill, Randy yelled to him and plaintiff stopped. Randy said that there was a good jump to their right that would be “good to hit.” Randy went first, and plaintiff followed. Plaintiff proceeded laterally across the hill (to the right, if one is facing downhill). Plaintiff “came almost straight across because there was enough of an incline . . . [he] didn’t have to come downhill much.”

Plaintiff successfully navigated the jump, which caused him to go up into the air about 12 to 15 feet. He landed and came to a stop by turning quickly to the right and power-sliding to a stop. As he looked around for Randy, plaintiff felt his feet go over the edge of the half pipe. He slid down the side a little bit, and then hit the bottom. Plaintiff shattered his left calcaneus (heel) and the top of his tibia, and broke his hip and right arm. He also fractured his left eye socket where his pole hit his head when he fell.

Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, [*3] arguing that plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket. The trial court denied the motion, concluding that there remained issues of fact. Thereafter, we granted defendant’s motion for leave to appeal. We review the trial court’s decision de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 23; 664 NW2d 756 (2003).

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Anderson, 469 Mich at 26. Among the risks assumed are “variations in terrain.” MCL 408.342(2). Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that [*4] defendant complied with this requirement. Rather, plaintiffs argue that defendant breached a duty not imposed by the statute: to mark the half pipe itself. But Anderson makes clear that when SASA resolves a matter, common-law principles are no longer a consideration. Anderson, 469 Mich at 26-27. By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law. Anderson, 469 Mich at 25-26.

Accordingly, defendant was entitled to summary disposition by application of SASA. In light of this conclusion, we need not consider whether defendant was also entitled to summary disposition under the liability waivers.

Reversed and remanded to the trial court with instructions to enter an order of summary disposition in defendant’s favor. We do not retain jurisdiction. Defendant may tax costs.

/s/ David H. Sawyer

/s/ Henry William Saad

CONCUR BY: HOEKSTRA

CONCUR

Hoekstra, P.J., (concurring).

Although I join with the majority in reversing, I write separately because my reason for reversing differs from that of the majority.

In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26; 664 NW2d 756 (2003), [*5] the Supreme Court concluded that if a hazard inheres in the sport of skiing, it is covered by the Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., unless it is unnecessary or not obvious.

Here, it is undisputed that the half pipe, like the timing booth in Anderson, inheres to the sport of skiing and is a necessary installation in a terrain park. But unlike the timing booth in Anderson, plaintiff, in my opinion, makes an arguable claim that the half pipe was not obvious to persons skiing cross-hill. It appears that this argument persuaded the trial court to deny defendant’s motion for summary judgment.

But even assuming a fact question exists regarding whether the half pipe was not obvious, plaintiff admitted to actual knowledge of the location of the half pipe from having observed it earlier that same day while skiing. When skiing, a plaintiff is required by the SASA to “maintain reasonable control of his speed and course at all times,” MCL 408.342 (emphasis added). I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after [*6] executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

/s/ Joel P. Hoekstra


Summer Camp, Zip line injury and confusing legal analysis in Washington

A 200' Mammoth Deluxe zip line installed over ...

A 200′ Mammoth Deluxe zip line installed over a pond. (Photo credit: Wikipedia)

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

Facts, no prepared defense and the plaintiff will get to go to trial.

In this case, I think the parents of a child who was attending the summer camp opted to ride the camp zip line. The zip line had two ropes that attached the rider to the haul line. The adult plaintiff when getting ready to ride wrapped one rope around his fingers. When he launched, the rope tightened almost severing his fingers.

The defendant filed a motion for summary judgment. However, the analysis by the court did not read like the normal decisions on motions for summary judgment and started out by denying part of the plaintiff’s argument.

Summary of the case

The plaintiff argued the summer camp, landowner, owed him a duty of ordinary care. The court found this really did not apply to this case, and the duty was a duty to disclose rather than a duty of ordinary care. However, the court allowed this argument to proceed.

Under Washington’s law, the duty of ordinary care is defined as:

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.

The court then argued that the plaintiff was arguing the wrong legal issues because the plaintiff was arguing the plaintiff was a landowner; however, the injury did not occur on the land.

Because the injury the plaintiff received was based on the acts of the plaintiff, wrapping a rope around his hand, there was no violation of a duty by the defendant.

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  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?

A. If someone asked me?

Q. Yes.

A. Yes.

Because the plaintiff admitted that if he thought  about it, he would have realized that his actions would injure his hand, the defendant did not owe him a greater duty than it had done.

The plaintiff then stretched with two additional causes or claims. The first was the defendant had violated a state statute because the zip line was not inspected by the state. However, the statute that the plaintiff tried to apply, the amusement ride statute, did not include zip lines in its definitions until after the plaintiff’s accident. The statute at the time the plaintiff was injured did not apply to zip lines.

The next argument is farther out there, and exponentially scarier. The plaintiff argued that a zip line should be classified as a common carrier. A common carrier under most state interpretations are airlines, trains, buses, etc. Those types of transportation, carriers for hire, where the customer pays to be moved from one place to the next owe their customers the highest degree of care. The transportation must be for the purpose of movement, not amusement. The scary part is a common carrier owes the highest degree of care to its customers.

This definition means that a common carrier is liable in most situations for any injury to its passengers.

However, the court did not find a zip line was a common carrier. Thankfully.

So Now What?

The obvious issue that was missed, was the camp should have been using a release. An adult is on the property having fun; an injury will occur.

A motion for summary judgment is used when the legal arguments against a claim are sufficient to eliminate that claim. In most cases, this ends the lawsuit as long as all claims are ruled in favor of the defendant. Here the one claim, no matter how sketchy is probably going to allow the plaintiff to recover some amount of money.

Based on the ruling, the plaintiff will get his day in court or be paid not to go to court. A slip when someone is loading a zip line, no release and a traumatic injury add up to a big lawsuit.

What do you think? Leave a comment.

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Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Derek Dearnley and Vicky Dearnley, his wife, Plaintiffs-Appellants, v. Mountain Creek, its agents, servants and employees, Defendant-Respondent.

Docket no. A-5517-10T1

Superior Court of New Jersey, Appellate Division

2012 N.J. Super. Unpub. LEXIS 527

February 29, 2012, Argued

March 12, 2012, Decided

Notice: not for publication without the approval of the appellate division.

Please consult new jersey rule 1:36-3 for citation of unpublished opinions.

Prior History: [*1]

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-540-09.

CORE TERMS: season, summary judgment, ski area, unconscionability, unconscionable, affirmative defenses, resort, Law Division, contract of adhesion, exculpatory provisions, releasor’s, surgery, ski, pass holder, bold, tort liability, de novo, contracting party’s, public policy, sliding scale, unenforceable, snowboarding, exculpatory, non-moving, favorable, equitable, adhesion, binding, bargain, quod

COUNSEL: Evan D. Baker argued the cause for appellants (Law Offices of Rosemarie Arnold, attorneys; Mr. Baker, of counsel and on the brief).

Samuel J. McNulty argued the cause for respondent (Hueston McNulty, P.C., attorneys; Mr. McNulty, of counsel and on the brief; John F. Gaffney and Stephen H. Shaw on the brief).

JUDGES: Before Judges Harris and Koblitz.

OPINION

PER CURIAM

Plaintiffs Derek Dearnley and Vicky Dearnley appeal from the June 16, 2011, summary judgment dismissal of their six-count complaint. Plaintiffs sought tort remedies for injuries suffered by Mr. Dearnley while snowboarding at defendant Mountain Creek Resort, Inc.’s ski area in Vernon. We affirm.

I.1

1 This appeal arises from the motion court’s grant of summary judgment in defendant’s favor. Accordingly, we present the evidence in the light most favorable to plaintiffs. See Durand v. The Nutley Sun, N.J. , (2012) (slip op. at 3 n.1) (citing G.D. v. Kenny, 205 N.J. 275, 304 (2011) (citations omitted); R. 4:46-2(c)).

Between 1998 and 2010, Mrs. Dearnley was employed by defendant in its retail department. As part of her compensation benefits, [*2] she and her family members were entitled to apply for, and obtain, a free season pass to use defendant’s facilities at its Vernon ski resort. On November 25, 2008, because her husband desired to take advantage of this benefit for the 2008-2009 winter season, Mrs. Dearnley applied for, and obtained, the pass. She signed, on his behalf, a document entitled, “Season Pass Contract, Student Ski & Ride Voucher Program, Rules and Conditions of Sale, Release of Liability and Indemnity Agreement” (the 2008 agreement). The 2008 agreement contained exculpatory provisions purporting to release tort claims before they occurred. For example, the pass holder “fully release[d] Mountain Creek FROM ANY AND ALL LIABILITY for personal injury, death or property damage arising out of or resulting from [the pass holder’s] participation in this sport, MOUNTAIN CREEK’S NEGLIGENCE, conditions on or about the premises and facilities or the operations of the ski area” (capitalization in the original). The outcome of this appeal, however, does not turn on this language.

On January 4, 2009, Mr. Dearnley was snowboarding at the Mountain Creek ski area when he suffered an accident that he attributes to defendant’s [*3] negligence and breach of its duties under N.J.S.A. 5:13-1 to -11 (the Ski Act). As a result of the accident, Mr. Dearnley incurred serious injuries, which required immediate emergency surgery to stabilize his back by the implantation of metal rods and screws. According to his answers to interrogatories, Mr. Dearnley ultimately spent approximately six weeks in the hospital, had to endure three surgeries, and underwent weeks of physical therapy and rehabilitation.

On October 13, 2009, plaintiffs filed their personal injury and per quod complaint against defendant in the Law Division, Sussex Vicinage. Defendant’s answer listed ten affirmative defenses, but did not assert that the 2008 agreement’s exculpatory provisions barred the action.

Two months later, on December 21, 2009, while his wife was still employed by defendant, Mr. Dearnley applied for a season pass for the 2009-2010 winter season. He was presented with, and signed, a two-page document entitled, “Mountain Creek Resort, Inc. 2009-’10 Season Pass Wavier” (the 2009 agreement). In bold, capitalized print at the top of the first page, the 2009 agreement stated, “RELEASE, WARNINGS AND DISCLAIMERS ON SKIING.”

At the top of the second [*4] page, to which Mr. Dearnley affixed his signature, the following appeared in bold typeface:

I FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST MOUNTAIN CREEK RESORT, INC. THIS RELEASES ALL CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE AND THOSE NOT MENTIONED IN THIS RELEASE. THIS RELEASE APPLIES TO CLAIMS RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.

The 2009 agreement also stated in bold typeface: “I AM AWARE THAT THIS CONTRACT IS LEGALLY BINDING AND THAT I AM RELEASING LEGAL RIGHTS BY SIGNING IT.”

During discovery, the 2008 and 2009 agreements were exchanged between the parties’ attorneys. Upon the realization of what Mr. Dearnley had signed, plaintiffs filed a motion “for an Order barring the affirmative defenses related to two adhesion contracts.” Defendant filed a cross-motion seeking (1) summary judgment, (2) permission to file an amended answer, and (3) denial of plaintiffs’ motion.

On April 29, 2011, Judge Edward V. Gannon heard oral argument. The judge granted defendant’s motion to amend its answer to permit the pleading of (1) release and (2) accord and satisfaction as affirmative defenses. The judge noted that the 2009 agreement [*5] was executed after both the filing of plaintiffs’ complaint and defendant’s answer, and therefore could not have been contemplated by the first exchange of pleadings. Reciprocally, he denied plaintiff’s motion to bar the affirmative defenses. Finally, he reserved decision on what he called “a matter of first impression with regard to this particular type of release.”

On June 16, 2011, Judge Gannon entered an order granting summary judgment dismissing plaintiffs’ complaint with prejudice. He explained his decision in a thorough ten-page statement of reasons, taking pains to carefully explicate the two agreements and then analyze them under the lens of applicable law. This appeal ensued.

II.

Orders granting summary judgment pursuant to Rule 4:46-2 are reviewed de novo, and we apply the same legal standard employed by the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). In performing our appellate function we consider, as did the motion court, “‘whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in [*6] favor of the non-moving party.'” Advance Hous., Inc. v. Twp. of Teaneck, 422 N.J. Super. 317, 327 (App. Div. 2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. granted, N.J. (Jan. 24, 2012).

Similarly, when the legal conclusions of a motion court’s Rule 4:46-2 summary judgment decision are reviewed on appeal, “‘[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]’ and, hence, an ‘issue of law is subject to de novo plenary appellate review.'” Estate of Hanges v. Metro. Prop. Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010)).

Judge Gannon dismissed plaintiffs’ claims based upon the release contained in the 2009 agreement, which was personally executed by Mr. Dearnley months after his injuries and surgeries, months after he hired a lawyer, and months after he filed suit. From our review of the undisputed factual record, we are satisfied that this case does not present any novel or first impression issues. Rather, it revolves around an ordinary release —- not exculpatory —- clause and is governed [*7] by familiar principles of contract interpretation. As Judge Gannon stated,

Invalidating the agreed upon waiver would signal judicial mistrust of our citizen’s ability to intelligently enter contracts, in which benefits derive from the assumptions of burdens. In this case, Mr. Dearnley surrendered his right to maintain this suit in exchange for the benefits afforded to season pass holders. A contracting party’s assumption of a substantial burden is no basis for interfering with our citizens’ right to freely contract.

We affirm substantially for the reasons expressed by Judge Gannon, and add only the following brief comments.

Plaintiffs condemn the 2009 agreement as a contract of adhesion, fraught with unconscionabilty, and contrary to public policy. We emphasize that our review is limited to the 2009 agreement, not the 2008 agreement. We are not concerned with defendant’s efforts to exculpate itself from tort liability before an invitee becomes injured at its ski area. Instead, we parse Mr. Dearnley’s release of a claim after it allegedly accrued.

We begin our analysis of the enforceability of the release contained in the 2009 agreement with recognition of the deep-seated principle that [*8] contracts will be enforced as written. Vasquez v. Glassboro Serv. Ass’n, Inc., 83 N.J. 86, 98-100 (1980). Ordinarily, courts will not rewrite contracts to favor a party, for the purpose of giving that party a better bargain. Relief is not available merely because enforcement of the contract causes oppression, improvidence, or unprofitability, or because it produces hardship to one of the parties. Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223 (2005). A court cannot “‘abrogate the terms of a contract unless there is a settled equitable principle, such as fraud, mistake, or accident, allowing for such intervention.'” Id. at 223-24 (quoting Dunkin’ Donuts of America, Inc. v. Middletown Donut Corp., 100 N.J. 166, 183-84 (1985)).

Rational personal and economic behavior in the modern post-industrial world is only possible if agreements between parties are respected. The reasonable expectations created by mutual assent ought to receive the protection of the law and courts should not be encouraged to fashion a better arrangement for a party because of a gaffe to which the other party is not privy. In other words, avoidance of a contract is a very stern [*9] remedy that requires clear evidence demonstrating that the consequences of the mistake are so grave that enforcement of the contract would be unconscionable. That formidable threshold has not been surmounted here.

Notwithstanding the foregoing, a contract provision that is procedurally and substantively unconscionable can be set aside. See Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006), cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). “[P]rocedural unconscionability . . . ‘can include a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process[.]'” Ibid. (quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564-66 (Ch. Div. 2002). A contract of adhesion, presented by the drafting party to the other party on a take-it-or-leave-it basis, as here, typically involves “some characteristics of procedural unconscionability[.]” Id. at 16. The determination “that a contract is one of adhesion, however, ‘is the beginning, not the end, of the inquiry’ into whether a contract, or any specific term therein, [*10] should be deemed unenforceable based on policy considerations.” Id. at 28 (citing Rudbart v. N. Jersey Dist. Water Supply Comm., 127 N.J. 344 (1992)).

Substantive unconscionability essentially refers to the inclusion within a contract of “harsh or unfair one-sided terms.” Id. at 15 (citing Sitogum, supra, 352 N.J. Super. at 564-66). It is also described as “‘the exchange of obligations so one-sided as to shock the court’s conscience.'” B & S Ltd., Inc. v. Elephant & Castle Intern., Inc., 388 N.J. Super. 160, 176 (Ch. Div. 2006)(quoting Sitogum, supra, 352 N.J. Super. at 565).

Generally, courts must undertake “a careful fact sensitive examination into [claims of] substantive unconscionability.” Id. at 16 (footnote omitted). “When making the determination that a contract of adhesion is unconscionable and unenforceable, we consider, using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).

The release provisions of the 2009 agreement are not the analytical equivalent of its exculpatory provisions. “The law does not favor exculpatory [*11] agreements because they encourage a lack of care.” Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247 (App. Div. 2004). For that reason, courts closely scrutinize attempts to contract in advance to release tort liability. “‘[C]ourts have not hesitated to strike limited liability clauses that are unconscionable or in violation of public policy.'” Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2004) (quoting Lucier v. Williams, 366 N.J. Super. 485, 491 (App. Div. 2004)).

The subject release does not call forth any of the foregoing concerns. Mr. Dearnley’s 2009 agreement with defendant neither eroded defendant’s duty of care nor did it incentivize negligence. Each of the contracting parties gained or gave away something of value. There was no coercion, duress, fraud, or sharp practices afoot. Public policy is not offended by requiring a non-incapacitated adult to honor the type of promise given here. See Raroha v. Earle Fin. Corp., 47 N.J. 229, 234 (1966) (holding that in the absence of fraud, misrepresentation or overreaching by the releasee, in the absence of a showing that the releasor was suffering from an incapacity affecting his ability to understand the meaning of [*12] the release and in the absence of any other equitable ground, it is the law of this State that the release is binding and that the releasor will be held to the terms of the bargain he willingly and knowingly entered).

Judge Gannon properly calibrated the “sliding scale” of our unconscionabilty jurisprudence and correctly determined that the 2009 agreement’s release was enforceable. Mr. Dearnley’s releasor’s remorse is an insufficient basis to return this matter to the Law Division for trial.2

2 Mrs. Dearnley’s claims are entirely derivative of her husband’s and consequently her per quod action must fall in the wake of Mr. Dearnley’s release. See Ryan v. Renny, 203 N.J. 37, 62 n.1 (2011) (noting that “the viability of [that claim] is subject to the survival of [her husband]’s claim” (quoting Sciarrotta v. Global Spectrum, 194 N.J. 345, 350 n.3 (2008)).)

Affirmed.

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Bossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992

Bossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992

Vittoria M. Bossi, Plaintiff and Appellant, v. Sierra Nevada Recreation Corporation et al., Defendants and Respondents.

C042558

Court of Appeal of California, Third Appellate District

2004 Cal. App. Unpub. LEXIS 1992

March 4, 2004, Filed

Notice: [*1] not to be published in official reports California rules of court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for the purposes of rule 977.

Prior History: Calaveras. Super. Ct. No. CV25839.

Disposition: Affirmed.

Judges: Davis, J. We concur: BLEASE, Acting P.J., SIMS, J.

Opinion By: Davis

Opinion: Despite executing a comprehensive release and covenant not to sue before rappelling to the floor of Moaning Cavern, attorney Vittoria Bossi brought this action for the injuries she sustained during an uncontrolled descent. The jury returned a verdict in favor of the defendants Sierra Nevada Recreation Corporation and two of its employees (Eric Gutierrez and Bruce Brand). The jury also returned a verdict for over $ 100,000 in damages on Sierra Nevada Recreation Corporation’s cross-complaint for the plaintiff’s breach of her covenant not to sue. The plaintiff filed a timely appeal. n1

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 We dismissed the defendants’ purported cross-appeal from certain nonappealable orders.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*2]

On appeal, the plaintiff challenges the exclusion of the deposition testimony of an unavailable witness, the admission of lay testimony interpreting the release and covenant, and the trial court’s refusal to instruct on assumption of the risk. In a conclusory one-paragraph argument, the plaintiff also contends we must reverse the judgment against her for the breach of the covenant not to sue because she has “clearly demonstrated” that the defendants breached their duty toward her. We shall affirm.

BACKGROUND

The plaintiff’s arguments on appeal do not require us to relate the entirety of the testimony in this matter. Center stage in this case is the release and covenant not to sue. It contains acknowledgments that rappelling is an activity with “inherent dangers that no amount of . . . caution . . . can eliminate”; that she “expressly and voluntarily assumes all risk of death[ and] personal injury . . . including the risk of passive or active negligence of the released parties; or . . . defects or hazards in the equipment”; that she “forever releases, waives, discharges and covenants not to sue Sierra Nevada Recreation . . . for any and all loss or damage, or from any [*3] and all liabilities . . . for injuries and damages arising out of participation . . . on the Rappel . . ., including . . . losses caused by the passive or active negligence of the released parties or . . . defects or hazards in the equipment”; that “this Release . . . extends to all acts of negligence by the Releasees . . . and is intended to be as broad . . . as is permitted by the laws of the State of California”; and that “I have read this Release . . ., fully understand its terms, understand that I have given up substantial rights . . ., and intend my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law.”

The plaintiff, a lawyer since 1991, initialed all of the paragraphs except the last one (regarding reading the document and intending an unconditional relinquishment of any negligence claim), and signed it. She had previously rappelled into Moaning Cavern in 1991 and 1994.

On the date of the accident in July 1998, defendant Eric Gutierrez was acting as a belay person on the cavern floor (among other duties). His function was to slow the fall of rappelers. After he helped people who had just descended, Nicole Hamilton relieved [*4] him at the belay post. As Gutierrez walked toward the stairs, he heard the sound of rope sliding rapidly through the rappelling apparatus. He saw the plaintiff descending quickly, bouncing off the rock face. He grabbed the line, which had swung in his direction, and took up the slack. Although this slowed the fall, plaintiff still hit the floor.

In its special verdict, the jury found that the defendants did not intentionally or negligently misrepresent any facts to the plaintiff, that the plaintiff executed a written agreement releasing the defendants from all liability, that the plaintiff breached a contract with Sierra Nevada Recreation Corporation, and that this breach resulted in damages of over $100,000.

DISCUSSION

Before trial, the plaintiff filed a declaration in which she asserted that Nicole Hamilton was no longer available as a witness because she now was living in Oregon and had started a new job, the demands of which precluded her from appearing at trial. The plaintiff moved to admit her deposition testimony pursuant to Code of Civil Procedure section 2025, subdivision (u). In denying the motion, the trial court cited a criterion [*5] for admission pursuant to Evidence Code section 1291, which requires a defendant to have had an interest and motive at the time of the deposition similar to that at trial. It found that the defendants did not have any indication that their employee would be unavailable at the time of trial.

On appeal, the plaintiff focuses solely on whether the witness was unavailable, relying on Chavez v. Zapata Ocean Resources, Inc. (1984) 155 Cal. App. 3d 115, 118, 201 Cal. Rptr. 887 (where the parties stipulated to unavailability) and Nizinski v. State Bar (1975) 14 Cal.3d 587, n2 590, 121 Cal. Rptr. 824 (deponent more than 150 miles from court). The defendants claim the trial court did not abuse its discretion (People v. Waidla (2000) 22 Cal.4th 690, 717) under Evidence Code section 1291 in excluding the deposition.

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n2 We note both parties have incorrectly cited this case as appearing at “14 Cal. App. 3d 560.”

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Evidence Code section 1291, however, is inapplicable. It apples only to depositions taken in another action, not the same action, the use of which is covered “comprehensively” in the discovery statutes. (Recommendation Proposing an Evidence Code, 7 Cal. Law Revision Com. Rep. (1965) p. 250; 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 262, p. 980.)

We need not belabor the question of whether the trial court might have properly exercised its discretion in resolving the criteria of unavailability and diligence (e.g., Code Civ. Proc., § 2025, subds. (u)(3)(B)(iv), (u)(3)(B)(v)); plainly, this was not the basis of its ruling, so we have no way of discerning the result of a properly informed exercise of its discretion. Nor need we determine whether the deposition was admissible as a matter of law under some other provision (e.g., id., subd. (u)(3)(A) [witness more than 150 miles from court]). The short answer is the utter harmlessness of excluding the deposition at trial.

The plaintiff does not at any point suggest the deposition included any evidence relevant [*7] to the validity of the release that she had executed before rappelling. Instead, the plaintiff adverts only to the relevance of the deposition to the issue of whether the defendants had increased the risk of the activity. As we explain subsequently, this issue is relevant only in cases involving an implied assumption of the risk. An effective release that manifests an express assumption of the risk is a complete defense to a negligence action. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 (Allan).)

II

In her brief, the plaintiff asserts the trial court erred in permitting “several” witnesses “over objection” to testify regarding their opinion of the effect of an unspecified release that they signed before rappelling into Moaning Cavern. Her citation to the record, however, is to the testimony of two witnesses, n3 and the plaintiff does not in either instance voice an objection to the topic.

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n3 According to Webster’s Collegiate Dictionary, “several” refers to “an indefinite number more than two and fewer than many.” (Webster’s 10th Collegiate Dict. (2001) p. 1070.)

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*8]

If an appellant does not provide a citation to the record in support of an argument, we are not obliged to independently search through the transcripts to find the facts on which the argument rests. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Here, defendants have represented in their brief that plaintiff never objected. Plaintiff did not file a reply contesting that assertion. Absent any proof that plaintiff registered an objection to this testimony, the issue is waived on appeal. (Evid. Code, § 353, subd. (a).)

III

The plaintiff initially offered an instruction stating the abstractly correct proposition that the defendants had a duty (under the doctrine of “assumption of the risk”) not to increase the risks inherent in a sport. Without providing any citation to the record, the plaintiff contends that the trial court refused to instruct on assumption of the risk (also without providing the basis for the court’s ruling), for which reason she withdrew the proposed instruction. The defendants do not dispute this account. [*9]

The plaintiff’s argument grows out of a misreading of Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, where, in an appeal from summary judgment for the defendant, we first found that the release was ambiguous as to whether it applied on the day that the plaintiff was skiing (id. at pp. 363-364), and then held that there was conflicting evidence about whether the defendant had increased the risk of recreational skiing through a failure to warn recreational skiers that it had modified the ski run with jumps for a racing event later that day (id. at pp. 365-367). Solis does not provide any support for the plaintiff’s proposition that she was entitled to a special instruction on the “increased risk” limit on assumption of the risk where there was a threshold issue of a valid release.

Rather, the plaintiff’s posture is akin to the appellant’s in Allan, supra: “All Allan’s discussion of . . . assumption of the risk . . . is essentially beside the point for one very fundamental reason: Knight v. Jewett[ (1992)] 3 Cal.4th 296 [Knight], and its discussion of . . . assumption of [*10] the risk, referred to implied assumption of the risk. Here, it is beyond dispute that Allan signed an express assumption of the risk, which warned him in no uncertain terms that he could . . . suffer serious injury. Knight itself recognized that express assumption of the risk remains a complete defense in negligence actions.” (51 Cal.App.4th at p. 1372; see also Knight, supra, 3 Cal.4th at p. 308, fn. 4; Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1217-1218; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1729-1730.) Since the jury in the present case upheld the validity of the execution of the release, plaintiff’s complaint about the alleged instructional error is moot.

IV

The entirety of the plaintiff’s attack on the judgment on the cross-complaint against her for breach of the covenant not to sue rests on the viability of her claim of negligence. Having failed to demonstrate any basis for invalidating the judgment enforcing the release, she has failed to provide a basis for reversing the judgment on the cross-complaint.

DISPOSITION

The judgment is affirmed.

DAVIS, J.

We [*11] concur:

BLEASE, Acting P.J.

SIMS, J.

Jim Moss\r\nJHMoss@Earthlink.net\r\n


‘TIS THE SEASON FOR INJURIES…. possibly Leading to the season of lawsuits!

Several news reports have described lawsuits between skydivers who collide. In one case, one skydiver had logged 1800 jumps when he was hit in midair and injured by another skydiver. The injuries ended his skydiving and work career. A judge ruled the skydiver (and friend) who hit the Plaintiff (the injured skydiver) was negligent and awarded the Plaintiff $748,000. See Skydiver Wins Lawsuit Against Teammate. Yet skydivers hit each other every once in a while. See Skydivers injured in midair collision and YouTube has several videos of skydivers colliding.

The accident occurred when an eight-man team including the Plaintiff and Defendant, ended a formation and broke apart to open their chutes. The Plaintiff and Defendant where both members of the team and had been practicing these maneuvers. The Defendant’s elbow hit the plaintiff in the head, knocking the Plaintiff unconscious and tangling the chutes. The Defendant was able to free himself from the tangled chutes and landed safely. The Plaintiff was not and fell suffering broken bones and brain injuries.

The lawsuit seems to be full of folly. (A politically correct term in this case.) Immediately what comes to mind is that someone with 1800 jumps knows, understands and assumes the risk of an injury. The judge did not see it this way. For this discussion, however, a different point needs to be discussed. Does your release protect your customers from this type of lawsuit?

Your customers can be involved in lawsuits in three ways:

  1. As the Plaintiff – the person initiating the lawsuit.
  2. As a witness to the incident which caused the lawsuit.
  3. Rarely do we think of our customers as a Defendant in the lawsuit. However as rare as we may think it is, it is more common then you would imagine. (Co-participant liability)

Numerous articles have discussed the first case, i.e. as a Plaintiff, previously in this newsletter and it will continue to be our focus, however, the 2nd and 3rd ways your clients can be sued are also important. That your clients may be brought into a lawsuit as either a witness or a defendant is also quite important to you and can have a tremendous impact on your business. Some examples of how your clients can be involved as witnesses or defendants follow.

Having your customers called as witnesses can create significant public relations problems: You have six customers in a boat. One is injured and sues another customer. You have four other customers who are subpoenaed as witnesses. I can foretell that you now have six angry former customers. There is not much you can do which will appease everyone involved, except to end the lawsuit quickly; assuring the other witnesses they are not going to be brought into the suit as parties. (“Parties” is the term that defines Plaintiffs and Defendants).

In the 3rd scenario, your customer could be sued in part because you can’t and the injured person is looking for money: The future plaintiff walks into an attorney’s office and describes his injuries and the accident to an attorney. The attorney, after discovering a release, (and realizing he cannot sue the outfitter) decides to sue the person who caused the injury, your customer. Your customer fell off the raft, knocking the injured person into the water; or started the avalanche while backcountry skiing; or the youth who while playing falls on a tent injuring the occupants inside.

For whatever reason, your customer is now in a precarious situation. They may or may not be liable for the injuries. In the latter instance, they are upset over lost time and money. If they are liable for the injuries, they may be confused as to why someone would sue them for an accident while recreating. Either way, they may be mad at you for not helping them out of a bad situation.

Worse, the defendant/customer may not have insurance to cover the cost of the defense or any judgement. Normally homeowner’s insurance will cover this type of claim, however not all homeowner’s policies may cover this and not everyone has homeowner’s (or condor or renter’s) insurance.

Other than moral support, you cannot provide much help – except from your own pocket. Your insurance policy is only available if you or your employees are the named defendants. No matter what you may want to do, you are paying your own bills for attending the courtroom drama, (which is nothing like TV, in real life, the main problem is always keeping the judge and jury awake!).

However, your insurance company should be paying your attorney to be their. There are probably going to be several issues that could lead to problems if your attorney is not on top of the case.

Bad press is also going to accompany any lawsuit between your clients. The press will jump on this and wonder why you are not involved. The defendant client will bring in the press to ask the question of why you have not been named as a defendant as well. Either way, from the sideline you appear uncaring or apathetic while your clients beat each other up in court.

But this can be prevented. When your release is being written, make sure the “people” covered by the release includes everyone. Not just the employees, but Directors, Officers and Agents of the corporation, employees, managers and owners of the business, and “OTHER PARTICIPANTS.” This is a very simple solution to what can be a disastrous affair.

EXAMPLE

You are running a Mountaineering course and one climber slips, fails to self-arrest and slams into another climber. Besides sixteen puncture wounds from the crampon points, the injured participant has a broken ankle and no insurance. There is a question as to who failed to keep the tension between the falling client and the guide who was first on the rope. Did the guide slow down, did the student speed up or did they both fail to be observant.

You and the client who fell are sued.

In the normal scenarios the insurance company lawyer files a motion. Based on the release, the company is dismissed leaving a very angry student to stand alone for the damages.

In scenario #2, you are not dismissed from the suit. Your defense is to try to blame the client who fell. You now have a very mad student and a bad reputation in the industry.

Scenario #3: The falling client with no money forms an alliance with the injured client to testify against you and leave you holding an empty money bag.

Scenario #4: Your release defends both you and the falling student thus protecting that student from liability. You have a good witness on your side rather than one running to offer their cooperation to the opposition and between the release, assumption of risk, and the guide and client as witnesses you have a good defense.

The simple inclusion of language protecting everyone in the lawsuit can keep your and your clients coming back for more accidents in the wilderness.

Here, the release covering everyone shows the witnesses they are not going to be drug into the suit. Also, the release helps your clients understand the suit should end quickly. However your clients feel, whether the injured party needs money or is wrong, NO ONE wants to be involved in litigation.

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