Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320

Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320

Appellate Court of Illinois, Second District

March 2, 2018, Order Filed

No. 2-17-0168-U

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

Prior History:
[**1] Appeal from the Circuit Court of McHenry County. No. 15-LA-56. Honorable Thomas A. Meyer, Judge, Presiding.

Disposition: Affirmed.

Judges: PRESIDING JUSTICE HUDSON delivered the judgment of the court. Justices Schostok and Spence concurred in the judgment.

Opinion by: HUDSON

Opinion

PRESIDING JUSTICE HUDSON delivered the judgment of the court.

Justices Schostok and Spence concurred in the judgment.

ORDER

 [*P1] Held: Plaintiff validly waived any cause of action stemming from defendants alleged negligence and failed to identify facts from which willful and wanton conduct could be inferred; therefore, trial courts grant of summary judgment was proper.

 [*P2]
I. INTRODUCTION

 [*P3]
Plaintiff, Patricia Cizek, appeals an order of the circuit court of McHenry County granting summary judgment in favor of defendant, North Wall, Inc. (doing business as North Wall Rock Climbing Gym). For the reasons that follow, we affirm.

 [*P4]
II. BACKGROUND

 [*P5]
Defendant operates an indoor rock climbing gym; plaintiff was a customer at the gym when she was injured. Plaintiff and a friend, Daniel Kosinski, attended the gym. Plaintiff had never been climbing before. At some point, after having been climbing for a while, plaintiff became tired and jumped down or fell from the climbing [**2]
wall. Plaintiffs right foot landed on a mat, but her left foot landed on the floor. Plaintiffs left ankle broke.

 [*P6]
In her deposition (taken December 23, 2015), plaintiff testified as follows. She stated that she had been a member of a health club for 10 years, where she primarily swam and did yoga. Prior to February 14, 2013, plaintiff had no experience rock climbing or bouldering, though she had observed people rock climbing in the past. She agreed that she understood that rock climbing involved being at a height higher than the ground.

 [*P7]
On February 14, 2013, she attended respondents gym with Kosinski, a coworker. She characterized Kosinski as a good climber, experienced. Kosinski told her climbing was one of his hobbies. She did not think climbing would involve any risk because [k]ids were doing it. Further, climbing occurred at a gym, which she viewed as a safe zone. Also, based on what she saw on television, she believed she would be using a harness. She and Kosinski did not consume any alcohol prior to arriving at North Wall, and she was not taking any medication at the time.

 [*P8]
When they arrived, Kosinski paid the fee. Plaintiff signed and returned a waiver form. Kosinski [**3]
had climbed at North Wall before. At the time, plaintiff did not know whether Kosinski was a member at North Wall, though she later learned that he had been at the time she was injured. Plaintiff acknowledged that she did, in fact, read and understand the waiver form. She did not look at the back of the form, but she recalled that she was given only one sheet of paper. She was provided with a pair of climbing shoes.

 [*P9]
When she first arrived, she observed children in harnesses with ropers. There were two large green pads that covered most of the floor. Plaintiff did not recall seeing any bulletin boards or posters. She also did not recall seeing a black line running continuously around the parameter [sic] of the climbing wall. At the time of the deposition, she was aware that such a line existed. Beyond signing the waiver when she arrived, she had no further interaction with respondents staff. Plaintiff reviewed a number of pictures of the facility and testified that it had changed since her accident. She also identified a photograph taken in October 2013 that showed where she was injured.

 [*P10]
She and Kosinski then proceeded to the climbing wall. She asked, What about my harness? Kosinski [**4]
said that harnesses were more trouble than they were worth. Plaintiff stated that she kind of was dumbfounded. Plaintiff proceeded to climb without a harness. Kosinski went first. He told her to follow some yellow markers, as they were for beginners. While she watched Kosinski, she did not see a black, horizontal line on the wall. Prior to climbing, Kosinski placed a mat below the area in which he intended to climb. Plaintiff found climbing very difficult, explaining that [y]ou use your core. Plaintiff would shimmy down when she got sore. She added, [i]ts tough work getting up there, so I need[ed] to get down. She would jump down from two to three feet off the ground. Plaintiff made three or four climbs before she was injured.

 [*P11]
Large green mats covered almost the entire floor of the gym. There were also smaller black mats that could be placed in different locations by climbers. Kosinski was not near plaintiff when she was injured. Before being injured, plaintiff had moved to a new climbing area. She placed a black mat where she planned on climbing. A green mat also abutted the wall in that area. The black mat was three to six inches away from the wall.

 [*P12]
Plaintiff was injured [**5]
during her third attempt at climbing that day, and she did not feel comfortable climbing. She explained that she was not wearing a harness, but was trying to do her best. There was a part of the floor that was not covered by a green mat in this area, which is where plaintiff landed when she was injured. Plaintiff stated she jumped off the wall and when she landed, her right foot was on a green mat, but her left foot landed on the uncovered floor. She felt pain in her left ankle and could not put weight on it. Kosinski and an employee came over to assist plaintiff. Kosinski got plaintiff some ibuprofen. Plaintiff felt a little dizzy. An employee called the paramedics. The paramedics stated that plaintiffs ankle was broken. They assisted plaintiff to Kosinskis car, and he drove her to St. Alexius hospital. At the hospital, they x-rayed plaintiffs ankle and confirmed that it was broken. She was given some sort of narcotic pain killer, and her ankle was placed in a cast. Plaintiff was discharged and told to follow up with an orthopedic surgeon.

 [*P13]
She followed up with Dr. Sean Odell. Odell performed a surgery six days after the accident. He installed eight pins and a plate. Plaintiff [**6]
had broken both leg bones where they intersect at the ankle. She took Norco for months following the surgery. She engaged in physical therapy for years, including what she did at home. The hardware was removed in December 2013. Her ankle continues to be stiff, she has trouble with many activities, and she takes ibuprofen for pain several times per week.

 [*P14]
On cross-examination, plaintiff stated that she read the wavier form before she signed it (though, she added, she did not study it). Other climbers were climbing without ropes, and the only people she saw using ropes were children. She was not offered a rope or harness. Plaintiff still takes prescription pain killers on occasion. However, she does not like to take it due to its side effects.

 [*P15]
A discovery deposition of Daniel Kosinski was also conducted. He testified that he knew plaintiff from work. She was a travel agent that did all the travel arrangements for [his] company. He and plaintiff were friends, though they do not associate outside of work.

 [*P16]
Kosinski stated that rock climbing is one of his hobbies. He started climbing in 2008. He initially climbed at Bloomingdale Lifetime Fitness. They eventually offered him a job, and [**7]
he worked there for four or five years. His title was [r]ock wall instructor. He described bouldering as climbing without a rope. He stated that it is a little more intense. Generally, one climbs at lower levels, and there are mats, as opposed to ropes, for protection. He added that [t]heres not really much instruction [to do] in terms of bouldering. He explained, bouldering, theres just—okay, this is how high you can go and thats pretty much it. There was no bouldering line at Lifetime Fitness. However, they did have a rule that you should not climb above the height of your shoulders. A spotter is not typically required when bouldering.

 [*P17]
He and plaintiff went to North Wall on February 14, 2013. He was a member and had been there multiple times previously. When he first went to North Wall, he signed a waiver and viewed a video recording that concerned safety. Due to height considerations, Kosinski characterized North Wall as pretty much a dedicated bouldering gym. North Wall offers top rope climbing, which Kosinski said was often used for childrens parties.

 [*P18]
Kosinski believed he was aware that plaintiff did not have any climbing experience prior to their trip to North [**8]
Wall. He could not recall whether there were any safety posters displayed. He and plaintiff had a conversation about the risks involved in rock climbing. He also explained to her what bouldering entailed and that a rope was not used. He noted that plaintiff was shaky or nervous on her first climb. Kosinski told plaintiff that if she was not comfortable, she should come down. He did not recall a bouldering line at North Wall and believed it was permissible to climb all the way to the top when bouldering. He did not recall whether plaintiff had been provided with climbing shoes. Plaintiff was in better than average physical condition.

 [*P19]
When plaintiff was injured, she was climbing on a wall called Devils Tower. It was toward the back, right of the facility. During the climb on which plaintiff was injured, Kosinski observed that plaintiff was stuck at one point and could not figure out what to do next. He walked over to assist her. She was four or five feet off the ground. Plaintiffs left foot and hand came off the wall, and her body swung away from the wall (counterclockwise). She then fell and landed on the edge of a mat. Kosinski stated she landed half on the mat and was rotating [**9]
when she landed. After plaintiff landed, Kosinski went over to check on her. Plaintiff said she believed she had broken her ankle. He did not know whether plaintiff had applied chalk to her hands before, nor did he recall what she was wearing. It did not appear that plaintiff had control of herself before she fell off the wall and injured herself. It also did not appear to him that plaintiff was attempting to get down from the wall or that she deliberately jumped.

 [*P20]
Kosinski told an employee of respondents to call the paramedics. Kosinski recalled an employee offering plaintiff ice. Plaintiff declined a ride to the hospital in an ambulance, and Kosinski drove her there instead.

 [*P21]
Kosinski testified that he and plaintiff had never been romantically involved. He recalled that plaintiff used crutches following the injury and took some time off from work. According to Kosinski, she used crutches for quite a while.

 [*P22]
On cross-examination, Kosinski explained that a spotter, unlike a belayer, only has limited control over a climber. A spotter just direct[s] them to fall onto a mat and not hit their head. It would have been possible for plaintiff to use a rope while climbing (assuming one was [**10]
available). Kosinski stated that use of a rope might have prevented plaintiffs injury; however, it might also have caused another injury, such as plaintiff hitting her head on something. Kosinski agreed that he climbed twice a week or about 100 times per year. He did not recall an employee ever advising him about not climbing too high when bouldering. An automatic belayer might have lessened the force with which plaintiff landed and mitigated her injury. It was about 25 to 30 feet from the front desk to the place where plaintiff fell. The safety video new customers had to watch was about two minutes long. He did not observe plaintiff watching the video.

 [*P23]
Prior to climbing, Kosinski told plaintiff that climbing was a dangerous sport and that they would be climbing without ropes. He did not recall any employee of respondent testing plaintiff with regard to her climbing abilities. After refreshing his recollection with various documents, Kosinski testified that they had been climbing for about half an hour when plaintiff was injured. He agreed that plaintiff was an inexperienced climber.

 [*P24]
On redirect-examination, he confirmed that he was not present when plaintiff first checked in at North [**11]
Wall. He had no knowledge of what transpired between plaintiff and respondents employees at that point.

 [*P25]
Jason R. Cipri also testified via discovery deposition. He testified that he had been employed by respondent as a manager for two years, from 2012 to 2014. His immediate supervisor was Randy Spencer (respondents owner). When he was hired in 2012, Cipri was trained on office procedures, logistics, how to deal with the cash register, where to put the mail, and the use of a computer system. He was also trained on dealing with customers. Cipri started climbing in 2000 and had worked for respondent for about a year around the time of plaintiffs injury.

 [*P26]
Novice climbers were supposed to sign a waiver and view a video. Spencer trained Cipri to go over any and all safety procedures with new climbers. Cipri was trained to interact with the customers to decide and figure out their climbing ability. Three types of climbing occurred at North Wall: bouldering, top-rope climbing, and lead climbing (also known as sport climbing). Plaintiff was bouldering when she was injured. Bouldering does not involve the use of ropes. Cipri estimated about 90 percent (or at least the vast majority) of [**12]
the climbing at North Wall is bouldering. Cipri received very specific training regarding how to execute waiver forms. Customers were instructed to read the waiver form.

 [*P27]
There was a bouldering line on the climbing wall. People engaged in bouldering were not supposed to bring their feet above that line. The bouldering line is described in the waiver. However, Cipri explained, having a bouldering line is not common. He added, We all kind of thought it was cute, but it didnt really serve a purpose.

 [*P28]
Cipri was working as a manager on the day plaintiff was injured. He recalled that an employee named Miranda, whom he called a coach, came and told him that someone had been injured. He called the paramedics, as that was what plaintiff wanted. He brought plaintiff some ice. He described Kosinski (whom he initially called Eric) as a pretty novice climber. Cipri did not know whether plaintiff was above the bouldering line when she fell. Plaintiff did not appear intoxicated or smell of alcohol. She did not appear to have any injuries besides the one to her ankle. Plaintiff would not have been allowed to use a rope because you have to be certified and taken through a lesson to use the [**13]
ropes.

 [*P29]
To the left side of the customer-service counter, there were posters addressing safety and such. Cipri filled out an accident report concerning plaintiffs injury. Cipri denied that he was terminated by respondent and that the owner ever accused him of using drugs on the job. There was no manual on how to run North Wall, but there was an unofficial manual kept on the front desk. This was comprised of a couple of binders that concerned how to teach climbing, use of the telephone, memberships, employee conduct, and various rules. He did not recall anything specific relating to dealing with novice climbers. There was a copy of the Climbing Wall Association manual in a file-cabinet drawer; however, he never used it for anything. Cipri did not recall Spencer instructing him to use this manual. Spencer did train employees on climbing, particularly new hires. Cipri described Spencer as an absentee manager. He would come in early in the day, and Cipri typically would not see him.

 [*P30]
Aside from ascertaining a customers age and climbing experience, they did nothing else to assess his or her proficiency. They would show new climbers a video and explain the rules of the gym to them. [**14]
Cipri could not say whether a copy of a manual shown to him was the manual they were actually using when he worked for respondent. However, he stated various forms shown to him, including one concerning bouldering orientation, were not used when he was there. Spencer never told Cipri to get rid of any document; rather, he was adamant about keeping such material. Weekly inspections of the premises were conducted, but no records documenting them were maintained.

 [*P31]
On cross-examination, Cipri stated that his sister had been hired to rewrite the operations manual. One document stated, If the facility allows bouldering, the staff provides an orientation before novice climbers are allowed to boulder without assistance or direct supervision. Cipri testified that this was not generated by respondent, but they followed it. Employees working the counter were trained to have new customers watch a video, instruct them on safety procedures, and assess their abilities. To the left of the front door, posters from the Climbing Wall Association were displayed. There was also one near the back door. Cipri did not remember what they were about beyond that they concerned stable rules of the Climbing [**15]
Wall Association.

 [*P32]
Cipri did not witness plaintiffs accident, and he did not recall being present when she was checked in. He never had rejected a customer previously, but he had the authority to do so. He never encountered a situation where he felt it was necessary.

 [*P33]
On redirect-examination, Cipri agreed that beyond verbal questioning, they did not test new customers. They did not inspect or observe climbers while they were actually climbing to determine competency. They did orientate climbers and show them the video. Further, new climbers read the waiver forms. Climbers were instructed on general and bouldering safety rules. Cipri was aware of an earlier incident where a young boy cut his head while climbing. Cipri stated that it was arguable that climbing with a rope was more dangerous than bouldering because a person could get tangled in the rope. Cipri did not give plaintiff an orientation, and he had no recollection of anyone giving her one.

 [*P34]
Randall Spencer, respondents owner, also testified via discovery deposition. Spencer testified that North Wall is pretty much run by employees and he does not have much of a role anymore. The business is run by a manager, Eric Paul. [**16]
Spencer did not have an independent recollection of plaintiffs accident. Cipri was the manager at the time. There was another manager as well named Chuck Kapayo, who Spencer described as co-managing with Cipri. Anything Spencer knew about plaintiffs accident he learned from Cipri or another employee named Terri Krallitsch. Usually, two people worked at any given time, although, sometimes, only one would be present.

 [*P35]
Spencer identified the waiver form signed by plaintiff. However, he acknowledged that it was not the original. The purpose of the waiver was to inform a customer about the danger involved in rock climbing. Further, employees were trained to talk about the rules and safety items when [customers] first come into the gym. In addition, there were posters, four of which were visible at the entrance. The posters were produced by the Climbing Wall Association as part of their Climb Smart Program. Spencer added that they say [c]limbing is [d]angerous. One says Bouldering is Dangerous Climb Smart. These were the only ways customers were informed of the dangers of rock climbing. Customers are not tested as to their climbing proficiency, and they are not trained unless they [**17]
sign up for a class. Customers were told not to climb above the bouldering line when bouldering.

 [*P36]
Employees were instructed to follow the policies of the Climbing Wall Association. If an employee did not spend time with a new customer explaining the policies and procedures of bouldering, that would be a violation of company policy. This is true even if the new customer is accompanied by a more experienced climber.

 [*P37]
Spencer explained that bouldering is climbing without a rope. The bouldering line is a little bit over three feet from the floor. Climbers were to keep their feet below the bouldering line. The accident report prepared by Cipri states plaintiffs feet were six feet off the floor when she fell. The only equipment provided by respondent to plaintiff was climbing shoes. Respondent could have provided a harness, and plaintiff could have been belayed. They did not provide chalk to plaintiff.

 [*P38]
Spencer testified that the waiver form states that it is not intended to provide a description of all risks and hazards. He explained that this means it is possible to get hurt in a manner not described in the waiver. There was no formal training program for employees. Managers trained [**18]
new employees, and managers themselves came to respondent already having climbing experience. In 2013, respondent had no auto-belay system in place. Spencer testified that he fired Cipri because of suspected drug use.

 [*P39]
The released signed by plaintiff states, in pertinent part, as follows. Initially, it states that plaintiff is giving up any right of actions arising out of use of the facilities of North Wall, Inc. Plaintiff then acknowledged that the sport of rock climbing and the use of the facilities of North Wall, Inc., has inherent risks. It then states that plaintiff has full knowledge of the nature and extent of all the risks associated with rock climbing and the use of the climbing gym, including but not limited to the following:

1. All manner of injury resulting from falling off the climbing gym and hitting rock faces and/or projections, whether permanently or temporarily in place, or on the floor or loose. 2. Rope abrasions, entanglement and other injuries ***. 3. Injuries resulting from falling climbers or dropped items ***. 4. Cuts and abrasions resulting from skin contact with the climbing gym and/or the gyms devices and/or hardware. 5. Failure of ropes, slings, [**19]
harnesses, climbing hardware, anchor points, or any part of the climbing gym structure.

Plaintiff then waived any cause of action arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused.

 [*P40]
The trial court granted summary judgment in favor of defendant. It noted that case law indicates that a competent adult recognizes the danger of falling from a height. It next observed that the waiver plaintiff signed stated that she was releasing defendant from all manner of injury resulting from falling off the climbing gym. The trial court then rejected plaintiffs argument that this language was too general to be enforced. It further found that plaintiff had set forth no facts from which willful and wanton conduct could be inferred. This appeal followed.

 [*P41]
III. ANALYSIS

 [*P42]
We are confronted with two main issues. First is the effect of the waiver form signed by plaintiff. Second, we must consider whether plaintiffs count alleging willful and wanton conduct survives regardless of the waiver (an exculpatory agreement exempting liability for willful and wanton conduct would violate public policy (Falkner v. Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 604, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989))). [**20]
Plaintiffs brief also contains a section addressing proximate cause; however, as we conclude that the waiver bars plaintiffs cause of action, we need not address this argument.

 [*P43]
A. THE WAIVER

 [*P44]
The trial court granted summary judgment on all but the willful and wanton count of plaintiffs complaint based on plaintiffs execution of a waiver. As this case comes to us following a grant of summary judgment, our review is de novo. Bier v. Leanna Lakeside Property Assn, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773, 238 Ill. Dec. 386 (1999). Under the de novo standard of review, we owe no deference to the trial courts decision and may freely substitute our judgment for that of the trial court. Miller v. Hecox, 2012 IL App (2d) 110546, ¶ 29, 969 N.E.2d 914, 360 Ill. Dec. 869. Summary judgment is a drastic method of resolving litigation, so it should be granted only if the movants entitlement to judgment is clear and free from doubt. Bier, 305 Ill. App. 3d at 50. It is appropriate only where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmovant, show that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.
Id. Finally, it is axiomatic that we review the result to which the trial court arrived at, rather than its reasoning. In re Marriage of Ackerley, 333 Ill. App. 3d 382, 392, 775 N.E.2d 1045, 266 Ill. Dec. 973 (2002).

 [*P45]
Though we are not bound by the trial courts reasoning, [**21]
we nevertheless find ourselves in agreement with it. Like the trial court, we find great significance in the proposition that the danger of falling from a height is open and obvious to an adult. Ford ex rel. Ford v. Narin, 307 Ill. App. 3d 296, 302, 717 N.E.2d 525, 240 Ill. Dec. 432 (1999); see also Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448, 665 N.E.2d 826, 216 Ill. Dec. 568 (1996); Mount Zion Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 118, 660 N.E.2d 863, 214 Ill. Dec. 156 (1995) (In Illinois, obvious dangers include fire, drowning in water, or falling from a height.). Thus, for the purpose of resolving this appeal and in the absence of evidence to the contrary, we will presume that plaintiff was aware that falling off the climbing wall presented certain obvious dangers.

 [*P46]
We also note that, in Illinois, parties may contract to limit the liability for negligence. Oelze v. Score Sports Venture, LLC, 401 Ill. App. 3d 110, 117, 927 N.E.2d 137, 339 Ill. Dec. 596 (2010). Absent fraud or willful and wanton negligence, exculpatory agreements of this sort are generally valid. Id. An agreement may be also vitiated by unequal bargaining power, public policy considerations, or some special relationship between the parties (Id.); however, such issues are not present here. This court has previously explained that [a]n exculpatory agreement constitutes an express assumption of risk insofar as the plaintiff has expressly consented to relieve the defendant of an obligation of conduct toward him [or her].
Falkner, 178 Ill. App. 3d at 602.

 [*P47]
Agreements of this nature must be expressed in clear, explicit [**22]
and unequivocal language showing that such was the intent of the parties.
Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 1043, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986). That is, it must
appear that its terms were intended by both parties to apply to the conduct of the defendant which caused the harm.
Id., (quoting Restatement (Second) of Torts, Explanatory Notes
496B, comment d, at 567 (1965)). Nevertheless, “The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into.
Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Thus, an exculpatory agreement will excuse a defendant from liability only where an
injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.
Id. The foreseeability of the danger defines the scope of the release. Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211.

 [*P48]
Numerous cases illustrate the degree of specificity required in an exculpatory agreement necessary to limit a defendants liability for negligence. In Garrison, 201 Ill. App. 3d at 583, the plaintiff was injured when a weighted bar rolled off a grooved rest on a bench press and landed on his neck. The plaintiff alleged that the bench press was improperly designed and that the defendant-gym was negligent in providing it when it was not safe for its intended use. Id. [**23]
The plaintiff had signed an exculpatory agreement, which stated, inter alia:

It is further agreed that all exercises including the use of weights, number of repetitions, and use of any and all machinery, equipment, and apparatus designed for exercising shall be at the Members sole risk. Notwithstanding any consultation on exercise programs which may be provided by Center employees it is hereby understood that the selection of exercise programs, methods and types of equipment shall be Members entire responsibility, and COMBINED FITNESS CENTER [sic] shall not be liable to Member for any claims, demands, injuries, damages, or actions arising due to injury to Members person or property arising out of or in connection with the use by Member of the services and facilities of the Center or the premises where the same is located and Member hereby holds the Center, its employees and agents, harmless from all claims which may be brought against them by Member or on Members behalf for any such injuries or claims aforesaid.
Id. at 584.

The plaintiff argued that the agreement did not contemplate a release of liability for the provision of defective equipment. The trial court granted the defendants motion [**24]
for summary judgment based on the exculpatory agreement.

 [*P49]
The reviewing court affirmed. Id. at 586. It explained as follows:

Furthermore, the exculpatory clause could not have been more clear or explicit. It stated that each member bore the sole risk; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member.
Id. at 585.

It further noted that the defendant was aware of the attendant dangers in the activity and, despite the fact that plaintiff now alleges that the bench press he used was unreasonably unsafe because it lacked a certain safety feature, the injury he sustained clearly falls within the scope of possible dangers ordinarily accompanying the activity of weight-lifting.
Id.

 [*P50]
Similarly, in Falkner, 178 Ill. App. 3d at 603, the court found the following exculpatory clause exempted the defendant from liability following a parachute accident: The Student exempts and releases the [defendant] *** from any and all liability claims *** whatsoever arising out of any damage, loss or injury to the Student or the Students property while upon the premises or aircraft of the [defendant] or while [**25]
participating in any of the activities contemplated by this agreement. The plaintiffs decedent died during a parachute jump. The court placed some significance on the fact that the decedent had been a pilot in the Army Air Corp. Id.

 [*P51]
Another case that provides us with some guidance is Oelze, 401 Ill. App. 3d 110, 927 N.E.2d 137, 339 Ill. Dec. 596. There, the plaintiff had signed an exculpatory agreement stating, I hereby release SCORE Tennis & Fitness and its owners and employees from any and all liability for any damage or injury, which I may receive while utilizing the equipment and facilities and assume all risk for claims arising from the use of said equipment and facilities.
Id. at 118. The plaintiff, who was playing tennis, was injured when she tripped on a piece of equipment that was stored behind a curtain near the tennis court she was using while she was trying to return a lob. Id. at 113. The plaintiff argued that this risk was
unrelated to the game of tennis and thus outside the scope of the release. Id. at 120. However, the court found that the broad language of the release encompassed the risk, relying on the plaintiffs agreement to assume the risk for her use of the clubs equipment and facilities.‘”
Id.

 [*P52]
Finally, we will examine Calarco, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 103 Ill. Dec. 247. In that case, the plaintiff [**26]
was injured when weights from a Universal gym machine fell on her hand. Id. at 1038. The trial court granted summary judgment based on an exculpatory clause. Id. at 1038-39. The clause read:

“‘In consideration of my participation in the activities of the Young Mens Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the [defendant] and do hereby for myself, *** waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the [defendant].

I hereby do declare myself to be physically sound, having medical approval to participate in the activities of the [defendant].‘”
Id. at 1039.

The reviewing court reversed, finding that the language of the release was not sufficiently explicit to relieve the defendant from liability. Id. at 1043. It explained, The form does not contain a clear and adequate description of covered activities, such as use of the said gymnasium or the facilities and equipment thereof, to clearly indicate that injuries resulting from negligence in maintaining the facilities or equipment would be covered by the release [**27] .” (Emphasis added.) Id.

 [*P53]
In the present case, plaintiff waived any cause of action arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused. (Emphasis added.) This is remarkably similar to the language, set forth above, that the Calarco court stated would have been sufficient to shield the defendant in that case. Id. Likewise, in Garrison, 201 Ill. App. 3d at 585, the language that was found sufficient to protect the defendant stated that each member bore the sole risk; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member. Again, identifying the activity involved along with an expressed intent to absolve the defendant from any liability prevailed. Here, the activity was clearly defined and plaintiffs intent to waive any cause related to that activity was clear. Furthermore, plaintiffs injury was of the sort that a participant in that activity could reasonably expect. As Oelze, 401 Ill. App. 3d at 120, indicates, language encompassing assumption of the risk for her use of the clubs equipment and [**28]
facilities‘” is broad and sufficient to cover accidents of the sort that are related to the primary activity. See also Falkner, 178 Ill. App. 3d at 603. Here, falling or jumping off the climbing wall are things a climber can clearly expect to encounter.

 [*P54]
Plaintiff cites Locke v. Life Time Fitness, Inc., 20 F. Supp. 3d 669 (N.D. Ill. 2014), a case from the local federal district court. Such cases merely constitute persuasive authority (Morris v. Union Pac. R.R. Co., 2015 IL App (5th) 140622, ¶ 25, 396 Ill. Dec. 330, 39 N.E.3d 1156); nevertheless, we will comment on it briefly. In that case, the plaintiff suffered a heart attack and died during a basketball game at a gym operated by the defendant. Id. at 671. There was an automatic defibrillator on site, but no employee retrieved it or attempted to use it. Id. The plaintiff had signed a waiver, which included the risk of a heart attack. Id. at 672. However, the waiver did not mention the defendants failure to train its employees in the use of the defibrillator. Id. The Locke court held that by advancing this claim as a failure to train by the defendant, the plaintiff could avoid the effect of the waiver. Id. at 674-75.

 [*P55]
We find Locke unpersuasive. Following the reasoning of Locke, virtually any claim can be recast as a failure to train, supervise, or, in some circumstances, inspect. Allowing such a proposition to defeat an otherwise valid exculpatory agreement [**29]
would effectively write such agreements out of most contracts. See Putnam v. Village of Bensenville, 337 Ill. App. 3d 197, 209, 786 N.E.2d 203, 271 Ill. Dec. 945 (2003) (Limiting the disclaimer in the manner suggested by the plaintiffs would effectively write it out of the contract. Virtually every error in construction by a subcontractor could be recast and advanced against [the defendant] as a failure to supervise or inspect the project.). Here, plaintiff promised to release defendant from any liability resulting from her use of the climbing wall. Moreover, we fail to see how providing additional training to employees would have impacted on plaintiffs perception of an obvious risk. Allowing her to avoid this promise in this manner would be an elevation of form over substance.

 [*P56]
At oral argument, plaintiff relied heavily on the allegation that the spot where she landed was uneven due to the placement of mats in the area. As noted, one of plaintiffs feet landed on a mat and the other landed directly on the floor. According to plaintiff, the risk of landing on an uneven surface was not within the scope of the waiver she executed. This argument is foreclosed by two cases which we cite above. First, in Oelze, 401 Ill. App. 3d at 113, the plaintiff was injured while, during a game of tennis, she tripped on a piece [**30]
of equipment stored behind a curtain near the tennis court. This arguably dangerous condition was found to be within the scope of her waiver. Id. at 121-22. Furthermore, in Garrison, 201 Ill. App. 3d at 584, the plaintiff argued that an alleged defect in gym equipment rendered ineffective an exculpatory agreement which stated that the plaintiff bore the sole risk of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member.
Id. at 585. In this case, assuming arguendo, there was some unevenness in the floor due to the placement of the floor mats, in keeping with Oelze and Garrison, such a defect would not vitiate plaintiff
s waiver.

 [*P57]
In sum, the release here is clear, pertains to use of defendants climbing gym, and is broad enough to encompass falling or jumping from the climbing wall.

 [*P58]
B. WILLFUL AND WANTON CONDUCT

 [*P59]
In an attempt to avoid the effect of the exculpatory agreement, plaintiff also contends that defendant engaged in willful and wanton conduct. Conduct is willful and wanton where it involves a deliberate intention to harm or a conscious disregard for the safety of others. In re Estate of Stewart, 2016 IL App (2d),151117 ¶ 72, 406 Ill. Dec. 345, 60 N.E.3d 896. It is an aggravated [**31]
form of negligence.
Id. Plaintiff contends that defendant should have followed its own policies and evaluated her abilities. However, plaintiff does not explain what such an evaluation would have shown or what sort of action it would have prompted one of defendant
s employees to take that would have protected plaintiff from the injury she suffered. Plaintiff also points to defendants failure to advise her not to climb above the bouldering line. As the trial court observed, the risk of falling from a height is open and obvious to an adult. Ford ex rel. Ford, 307 Ill. App. 3d at 302. Plaintiff cites nothing to substantiate the proposition that failing to warn plaintiff of a risk of which she was presumptively already aware rises to the level of willful and wanton conduct. Indeed, how a defendant could consciously disregard the risk of not advising plaintiff of the dangers of heights when she was presumptively aware of this risk is unclear (plaintiff provides no facts from which an intent to harm could be inferred).

 [*P60]
In short, the conduct identified by plaintiff simply does not show a willful and wanton disregard for her safety.

 [*P61]
IV. CONCLUSION

 [*P62]
In light of the foregoing, the judgment of the circuit court of McHenry County [**32]
is affirmed.

 [*P63]
Affirmed.


Plaintiff loses snow tubing case in PA because their experts could not argue the actions of the defendant were gross negligence.

Association resource guide is used against the defendants to prove the plaintiff’s case.

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Ray M. Bourgeois and Mary Ann I. Bourgeois

Defendant: Snow Time, Inc. and Ski Roundtop Operating Corporation

Plaintiff Claims: negligence, gross negligence, recklessness, and loss of consortium

Defendant Defenses: failure to state a claim and release

Holding: For the defendant

Year: 2018

Summary

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Facts

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

The defendants filed a motion for summary judgment, which was granted and the plaintiff’s appealed.

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

The first issue the appellate court reviewed was the dismissal of the plaintiff’s claims for gross negligence. The appellate court held that “we find that Appellants did not establish a prima facie claim for recklessness or gross negligence

The court came to that conclusion because no one could state the standard of care needed to prove the actions of the defendant rose to the level of gross negligence.

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

The court first looked at the definition of recklessness and gross negligence.

The Pennsylvania Supreme Court, citing the Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The key point is the failure must be an intentional failure. The plaintiff must establish that the defendant consciously acted or failed to act. “Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.

To prove gross negligence Pennsylvania laws requires a deviation from the standard of care.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary standard of care.”

Normally the trier of fact, the jury must make this decision. However, Pennsylvania courts are allowed to decide this issue if the facts are “entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence.”

Normally, to prove the defendant’s duty, expert testimony is required to establish the standard of care that the defendant failed to meet and how the expert deviated from that standard of care.

The plaintiff hired to experts that provided opinions as to the actions of the defendant. The first expert opined that the actions of the defendant were beyond the standard of care, but never provided an opinion about what the standard of care was.

DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

The second expert did not set forth any standards of care.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

The simple negligence claims were barred by a release. The plaintiff argued on appeal that the release was void because it did not specifically name in the release one of the defendants. However, the court found that the language in the release, “and their owners” was sufficient to cover the defendant when not specifically named in the release.

There was a dissent in this case. The dissent argued the plaintiff should win because the warning on the mats used to decelerate the tubes stated that vinyl tubes were not to be decelerated by mats or other devices. The dissent also argued the opinions of the experts did provide enough information for a decision about the recklessness and gross negligence of the defendants.

In my view, Appellants have put forth enough evidence at this stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

So Now What?

The plaintiff was rendered a quadriplegic by the accident so a lot of money was at stake. The plaintiff did not hire experts correctly or did not explain what was needed from the experts. This first rule of pleading is proving your case legally on the paperwork and then prove it in the record. The plaintiff failed to do that.

The biggest hurdle was the association resource guide. The National Ski Area Association created a resource guide for tubing hills. The dissenting judge called it the standard of care. The resource guide did not contain any information on using devices to slow tubes. The resource guide said you should have a sufficient run out.

The court did not see the issue as using a mat to slow participants as a violation of the standard to use a run out.

That was the close one in this case.

What do you think? Leave a comment.

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Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

Bourgeois v. Snow Time, Inc.

 

 

Superior Court of Pennsylvania

August 14, 2018, Decided; August 14, 2018, Filed

No. 1086 MDA 2017

Reporter

2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

RAY M. BOURGEOIS AND MARY ANN I. BOURGEOIS, Appellants v. SNOW TIME, INC. AND SKI ROUNDTOP OPERATING CORPORATION

Notice: DECISION WITHOUT PUBLISHED OPINION

Prior History:  [*1] Appeal from the Order Entered June 19, 2017. In the Court of Common Pleas of York County Civil Division at No(s): 2015-SU-001900-71.

Judges: BEFORE: OTT, J., DUBOW, J., and STRASSBURGER,* J. Judge Ott joins the memorandum. Judge Strassburger files a dissenting memorandum.

Opinion by: DUBOWS

Opinion

MEMORANDUM BY DUBOW, J.:

Appellants, Ray M. Bourgeois and Mary Ann I. Bourgeois, appeal from the Order entered in the York County Court of Common Pleas granting the Motion for Summary Judgment filed by Appellees, Snow Time, Inc. and Ski Roundtop Operating Corporation.1 Appellants challenge the trial court’s finding that Appellants could not establish that Appellees acted recklessly or with gross negligence. After careful review, we agree with the trial court that Appellants failed to provide an expert report that articulated a relevant standard of care. As a result, Appellants failed to establish that Appellees had a duty to Appellants and, thus, acted recklessly or were grossly negligent in placing deceleration mats at the end of the tubing run. We affirm the Order of the trial court.

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen [*2]  mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Appellants filed a Complaint against Appellees on July 24, 2015, asserting claims for negligence, gross negligence, recklessness, and loss of consortium.

On February 14, 2017, Appellees filed a Motion for Summary Judgment, which the trial court granted on June 19, 2017.

This timely appeal followed. Appellants filed a court-ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial court filed a Pa.R.A.P. 1925(a) Opinion, incorporating its Opinion in Support of the Order granting the Motion for Summary Judgment.

Appellants raise the following issues for our review:

1. Did the trial court err in granting [Appellees’] Motion for Summary Judgment when it disregarded [Appellants’] liability expert reports, which support the conclusion that, based on the evidence of record, that in placing large rubber kitchen mats, folded in half, on the snow and in the path of its patrons who were traveling at high speeds, [Appellees] acted recklessly and/or with gross negligence? [*3] 

2. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, by holding that, as a matter of law, [Appellees] were not reckless and/or grossly negligent, in that the trial court disregarded genuine issues of material fact showing recklessness and/or gross negligence, including but not limited to the following:

(a) the manufacturer of the inner tube [Appellees] provided Mr. Bourgeois specifically warned [Appellees] not to place obstacles, such as large folded rubber kitchen mats, in the path of tubing participants;

(b) [Appellees] deliberately placed obstacles-large, heavy, folded kitchen mats that [Appellees] knew were not designed for snow tubing and which would cause tubing participants to come to an abrupt stop during high-speed conditions-directly in Mr. Bourgeois’s path;

(c) [Appellees] knew that folding the large mats made them obstacles as the mats were fixed heavy masses that protruded high off the surface of the snow;

(d) [Appellees] had actual and/or constructive knowledge of similar incidents involving the folded kitchen mats prior to Mr. Bourgeois’s catastrophic accident;

(e) [Appellees] acknowledged in their written warnings that their tubing runs-including [*4]  their use of large rubber mats to stop speeding tubing patrons-posed a risk of grievous injury or death to its patrons; and

(f) the risk of grave harm posed by the folded rubber kitchen mats to [Appellees’] snow tubing patrons was obvious and readily apparent to a reasonable person?

3. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, in that the trial court relied upon the testimony of [Appellees’] own employees-in contravention of the Nanty-Glo[]2 holding-to conclude as a matter of law that [Appellees] did not know or have reason to know that using folded kitchen mats to bring its fast-moving snow-tubing patrons to an abrupt stop did not pose a risk of serious bodily harm or death to its patrons?

4. Did the trial court err in granting [Appellees’] Motion for Summary Judgment as to [Appellee] Snow Time, Inc., when (a) the Release signed by Mr. Bourgeois did not name Snow Time as a signatory, and (b) there were genuine issues of fact that [Appellee] Snow Time directly participated and acted negligently with regard to Mr. Bourgeois?

Appellants’ Brief at 6-7.

Issues 1 and 2 – Summary Judgment

In their first two issues, Appellants argue that the trial court erred [*5]  in granting Appellees’ Motion for Summary Judgment by disregarding the conclusions of their experts that Appellees’ conduct was reckless and grossly negligent. Appellants’ Brief at 35, 42. In support, Appellants emphasize certain evidence and argue that the record contains genuine issues of material fact that make the grant of summary judgment inappropriate. Based on the following discussion, however, we find that Appellants did not establish a prima facie claim for recklessness or gross negligence and thus, the trial court did not err in granting summary judgment on these issues.

Our standard of review of the grant of a Motion for Summary Judgment is as follows. We “may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion.” Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (Pa. 2010). However, when there are no genuine issues as to any material fact and the only issue on appeal is a question of law, our standard of review is de novo.” Id.

In order to survive a motion for summary judgment, the non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 737 (Pa. 1998) (citation omitted). If the non-moving [*6]  party fails to establish one of the essential elements of her claim, the movant has valid grounds for summary judgment. Babb v. Ctr. Cmty. Hosp., 2012 PA Super 125, 47 A.3d 1214, 1223 (Pa. Super. 2012) (citation omitted).

It is well-established that when a trial court considers a motion for summary judgment that includes an expert report, the trial court must determine, inter alia, whether the expert sufficiently supports his conclusions in his expert report:

At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party. This clearly includes all expert testimony and reports submitted by the non moving party or provided during discovery; and, so long as the conclusions contained within those reports are sufficiently supported, the trial judge cannot sua sponte assail them in an order and opinion granting summary judgment. Contrarily, the trial judge must defer to those conclusions, and should those conclusions be disputed, resolution of that dispute must be left to the trier of fact.

Summers, supra at 1161 (citations omitted).

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial [*7]  court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the mats at the bottom of hills for snow tubers. . . . The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Appellant] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Ct. Op., 7/19/17, at 18-19. The trial court similarly found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. Appellants challenge these conclusions.

We first turn to the definitions of recklessness and gross negligence. The Pennsylvania Supreme Court, citing the [*8]  Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012), citing
Restatement (Second) of Torts § 500 (emphasis added). Therefore, an element of recklessness is the failure of the defendant to do any act that he has a duty to do for the plaintiff.

That failure, however, must be an intentional failure. In other words, a plaintiff must establish that a defendant consciously acted or failed to act. Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.” Id.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary [*9]  standard of care.” Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671, 679 (Pa. Super. 1991).

Generally, it is for the jury to determine whether a party acted grossly negligent. Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616, 621 (Pa. Super. 1984). However, a court may decide this question as a matter of law where the case is entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence. Id.

Expert testimony is often required to opine about a defendant’s duty to the plaintiff, i.e., the standard of care that defendant failed to meet. In particular, an expert must opine about the relevant standard of care, the manner in which defendant’s actions deviated from the standard, and the manner in which that deviation caused the plaintiff’s harm. See Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (Pa. 2003) (medical expert report must describe standard of care so as to establish duty, breach of duty, and causation). See also Zokaites Contracting Inc. v. Trant Corp., 2009 PA Super 35, 968 A.2d 1282, 1287 (Pa. Super. 2009) (in a professional negligence action, expert testimony is required to establish the “relevant standard of care applicable to the rendition of the professional services” and that the defendant’s conduct fell below that standard); Truax v. Roulhac, 2015 PA Super 217, 126 A.3d 991, 997-99 (Pa. Super. 2015) (discussing plaintiff’s use of an engineer’s expert testimony to establish the elements of negligence in a premises liability action).3 If the expert fails to provide the required information, a trial [*10]  court may conclude that the report is insufficient as a matter of law. Id.

We now turn to the theory of Appellants’ case. Appellants allege in their Complaint, inter alia, that Appellees’ use of folded deceleration mats at the base of its tubing run was reckless and grossly negligent because the use of the mats caused Appellant’s snow tube to stop suddenly and unexpectedly, resulting in the serious injuries that Appellant sustained. Appellants assert the same theory on appeal by arguing that Appellees engaged in reckless and grossly negligent conduct when they placed “large, heavy rubber mats in [Appellant’s] path … and that the mats could bring [Appellant] to an abrupt, immediate stop.”4
See Appellants’ Brief at 36.

In support of Appellants’ response to Appellees’ Motion for Summary Judgment, Appellants presented two expert reports that concluded that Appellees engaged in reckless and grossly negligent conduct. Neither expert, however, set forth a relevant standard of care and, thus, the duty that Appellees failed to meet.

Appellants’ first expert, Mark DiNola, is an expert in the field of ski and snow tubing risk management. When addressing Appellees’ standard of care, he did so generally [*11]  and failed to articulate a specific standard of care or industry standard for the use of deceleration mats in a tubing run-out area. In particular, DiNola first concluded generally that Appellees’ “decision to use deliberately deployed folded anti-fatigue rubber mats as a deceleration device constitutes an extreme departure from the ordinary standards of conduct for a tubing park operator.” DiNola Report, 3/15/17, at 40 (emphasis added). DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

In another portion of the report, however, DiNola discusses a standard of care set forth in National Ski Areas Association’s “Tubing and Operations Resource Guide.”5 That “standard of care,” however, addresses the length of a tubing run-out, not a standard of care for the use of mats as deceleration devices. Thus, this portion of the expert report does not sufficiently articulate the applicable standard of care or conduct to support Appellants’ theory of this case.

The second expert report, written by Gordon Moskowitz, [*12]  Ph.D., a mechanical and biomechanical engineering expert, does not set forth any standards of care for tubing operators. Thus, this report is not relevant to the determination of whether Appellees engaged in reckless or grossly negligent conduct in failing to meet a standard of care by using folded rubber mats in the deceleration area.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

Issue 3 – Nanty-Glo Rule

In their third issue, Appellants claim that the trial court erred in concluding, solely based on Appellees’ employees’ testimony, that Appellees were not aware of the risk of harm posed by their use of anti-fatigue mats in the deceleration areas of the tubing run. Appellants’ Brief at 55.

The Nanty-Glo Rule limits the trial [*13]  court’s use of affidavits or depositions to decide motions for summary judgment. The Rule provides that a trial court, when ruling on a motion for summary judgment, may not rely solely upon the moving party’s own testimonial affidavits or depositions, or those of its witnesses, to determine that no genuine issue of material fact exists. Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916, 918 (Pa. Super. 1992) (citation and footnote omitted).

Before applying the Nanty-Glo Rule, however, the trial court must first determine whether the plaintiff has alleged sufficient facts to establish a prima facie case:

Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the fact-finder by resolving any material issues of fact. It is only when the third stage is reached that Nanty-Glo comes into play.

DeArmitt v. New York Life Ins. Co., 2013 PA Super 161, 73 A.3d 578, 594-95 (Pa. Super. 2013) (citation omitted and emphasis added).

As discussed above, the trial court properly found as a matter of law that Appellants’ experts had not opined about a relevant standard of care [*14]  and, thus, Appellants could not establish facts sufficient to make out a prima facie case of recklessness or gross negligence. Accordingly, Appellants have not demonstrated the applicability of the Nanty-Glo Rule. This third issue, thus, warrants no relief.

Issue 4 – The Release of Snow Time, Inc.

Lastly, Appellants contend that the trial court erred in dismissing the negligence claim against Snow Time, Inc. because the Release at issue did not specifically name or identify Snow Time, Inc. Appellants’ Brief at 61. We disagree.

The Release at issue states, in pertinent part, that Appellants release from negligence claims Appellee Ski Liberty Operating Corporation and its owners:

In consideration of being allowed to use the tubing area at Liberty, Whitetail or Roundtop, I HEREBY AGREE NOT TO SUE AND TO RELEASE, SKI LIBERTY OPERATING CORP., WHITETAIL MOUNTAIN OPERATING CORP. AND SKI ROUNDTOP OPERATING CORP., AS WELL AS THEIR OWNERS, AGENTS AND EMPLOYEES FROM ANY AND ALL LIABILITY RELATED TO INJURY, PROPERTY LOSS OR OTHERWISE RELATED TO MY USE OF THE TUBING FACILITY, REGARDLESS OF ANY NEGLIGENCE ON THE PART OF THE SAME. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE SAME, FROM ANY CLAIM FOR LIABILITY [*15]  RELATED TO INJURY AS A RESULT OF MY OR MY CHILD’S USE OF THE FACILITIES, REGARDLESS OF ANY NEGLIGENCE, RECKLESSNESS OR IMPROPER CONDUCT.

Release (emphasis added).

It is undisputed that Appellee Snow Time, Inc. owns Appellee Ski Roundtop Operating Corporation. Although the Release does not specifically name Appellee Snow Time, Inc., the Release still covers Appellee Snow Time, Inc. because the Release clearly and unambiguously covers the owner of Ski Roundtop Operating Corporation.

Moreover, Appellants do not otherwise contend that the Release is ambiguous. They raise no claims as to the Release’s general validity, conspicuity, or enforceability. Further, Appellants cite no authority to support their implication that unless the Release specifically names an owner, the term “owner” does not apply to it.

We agree with the trial court that the Release applied to Appellee Snow Time, Inc., as the owner of Ski Roundtop Operating Corporation. Therefore, the Release applied to general negligence claims against Appellee Snow Time, Inc. and Appellants’ claim to the contrary is without merit.

Based on the foregoing, we affirm.

Order affirmed.

Judge Ott joins the memorandum.

Judge Strassburger files a [*16]  dissenting memorandum.

Date: 8/14/18

Dissent by: STRASSBURGER

Dissent

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

In this case, the learned Majority holds that the trial court correctly concluded that Appellants could not establish a claim for recklessness or gross negligence as a matter of law at the summary judgment stage.1 Because I believe a reasonable jury could find that the facts constitute gross negligence and/or recklessness, I respectfully dissent. See Albright v. Abington Mem’l Hosp., 548 Pa. 268, 696 A.2d 1159, 1164 (Pa. 1997) (holding that a court may only take issue of gross negligence away from jury and decide the issue as a matter of law “if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence“).

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final [*17]  run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

Trial Court Order Granting Summary Judgment,2 6/19/2017, at 2-3.

What the trial court refers to as “deceleration mats” are actually rubber anti-fatigue mats commonly used as a walking surface in commercial kitchens. Spahr Deposition, 7/14/2016, at 25; Weeden Deposition, 7/20/2016, at 64-65; Whitcomb Deposition, 9/1/2016, at 95-96. The Resort inherited some of the mats from another resort. Whitcomb Deposition, 9/1/2016, at 96. When the Resort needed additional mats, Matt Weeden, the manager of the tubing park at the Resort, testified that he attempted to match the mats in use and “asked [the Resort’s] food and beverage guy where he got his and basically shopped around and compared the mats and figured out exactly what they were and ordered them.” Weeden Deposition, 7/20/2016, at 65. The mats are [*18]  not specifically designed for snow tubing. Id. Appellees used the mats to assist the snow tube rider to slow down at the bottom of the hill and to minimize collisions between a snow tube and people walking around at the bottom of the hill. Reichert Deposition, 7/13/2016, at 34-35; Whitcomb Deposition, 9/1/2016, at 81, 89.

The vinyl snow tubes used by the Resort have a written warning stating that the product is designed to be used on hills with no obstacles with adequate room to stop. Appellants’ Brief in Opposition to Motion for Summary Judgment, 3/16/2017, at Exhibit E. Appellees never conducted any studies as to the effect of a vinyl tube encountering a rubber mat. Whitcomb Deposition, 9/1/2016, at 96. In 2004, Appellees added elevation to the snow-tubing hill in order to create a more fun experience for their customers. Whitcomb Deposition, 9/1/2016, at 53-54. When they did so, they extended the runout “a little bit,” because making the hill higher resulted in the riders traveling faster down the hill and a farther distance at the bottom. Id. at 54-56.

Two of the safeties3 testified that they are aware that the speed that riders travel depends on various factors, including weather conditions, [*19]  the time of day, and the number of people going down a slope at a time. For example, riders went faster when it was colder. Spahr Deposition, 7/14/2016, at 34; Reichert Deposition, 7/13/2016, at 35-37. Nevertheless, the Resort did not measure speed other than by observation. The safeties and tubing supervisors determined when and how to use the mats depending on their observations of how the lanes were running, the speed riders were moving, and where the tubes were stopping, but there were no formal policies or procedures about when and how to use the mats. Reichert Deposition, 7/13/2016, at 35-38, 45; Whitcomb Deposition, 9/1/2016, at 98. The mats sometimes lay flat; sometimes they were folded. One of the tubing safeties observed that folded mats usually slowed down the rider more than flat mats due to an increase in friction. Reichert Deposition, 7/13/2016, at 36.

Appellants obtained the opinions of two experts. The first, Mark A. Di Nola, is an expert in ski and snow tubing risk management. The second, Gordon Moskowitz, Ph.D., is a an expert in mechanical and biomechanical engineering.

Di Nola opined that Bourgeois was severely injured as a direct result of Appellees’ deliberate actions, [*20]  which include the following:

[1.] [Appellees’] conscious decision to employ an operationally reckless company policy mandating the deployment of deliberately placed folded anti-fatigue rubber mats at the bottom of the tubing hill as deceleration devices with explicit knowledge that the deliberately deployed folded anti-fatigue rubber mats were not designed or tested for use as deceleration devices[.]

[2.] [Appellees’] conscious decision to attempt to transfer the increased risks to their guests rather than make the tubing experience safer for consumers by eliminating the increased risk as they did only after [Bourgeois’s] tragic incident, placing their corporate financial needs over the needs of their guests.

[3.] [Appellees] consciously deployed snow tubes and provided them to their patrons in a manner that directly violated the manufacturer’s warning label by using the tubes on hill with deliberately placed obstacles that were set out in an attempt to offset the fact that the hill did not provide adequate room to stop.

[4.] [Appellees’] conscious decisions described above increased the risk of serious bodily injury to riders over and above those inherent in the activity of snow tubing [*21]  in the Commonwealth of Pennsylvania.

[5.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and constitute an extreme departure from the ordinary standards of conduct for a ski area in the Commonwealth of Pennsylvania.

[6.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and are a proximate cause of [Bourgeois’s] injuries.

Di Nola Report, 3/15/2017, at 41-42.

Moskowitz opined, inter alia, that

***

2. The use of folded anti-fatigue mats as a deceleration device would expose tube riders to the likelihood of their tube encountering a sudden abrupt stop, particularly when the mats were folded with the ‘nubs’ exposed to the surface of the tube.

3. The stopping effect of a tube encountering a folded anti-fatigue mat with nubs exposed should have been readily apparent to [Appellees] well before [Bourgeois’s] accident of February 17, 2013.

4. Tube riders who travelled head [] first (on their stomachs) on ‘fast’ days would be subject to a greater [*22]  risk of suffering injuries similar to those experienced by [] Bourgeois.

***

6. Arranging the mats in a folded position enhances the risk of a sudden tube stop.

7. The variations in weather … would have resulted in [Bourgeois’s] tubing experience being significantly faster at or around 3:00 p.m. when his accident occurred than [on Bourgeois’s previous runs down the hill].

Moskowitz Report, 3/14/2017, at 20. Moskowitz also opined that Appellees

knew or should have known that tubers traveling at a high rate of speed would find their tube brought to an abrupt stop when it encountered a folded mat, with that risk increasing further when the mat was folded with the nubs exposed to the bottom of the tube. Analysis indicates that a tube and rider in the prone position with [Bourgeois’s] physical measurements, facing forward and traveling at approximately 15 mph would enter into a flipping motion upon contact with a folded mat due to the resulting friction and the fold. [B]ased upon the known weather conditions and [Bourgeois’s] weight, his speed at the point of encountering the folded mat was well in excess of this speed.

Id. at 16.

After discovery closed, Appellees moved for summary judgment, arguing, [*23] 
inter alia, that Appellants failed to support claims for reckless conduct, because Appellants used the mats in a matter customary to the industry without incident up until the incident. Appellees’ Motion for Summary Judgment, 2/14/2017, at ¶¶ 28-41; Appellees’ Memorandum of Law in Support of Motion for Summary Judgment, 2/14/2017, at 17-20 (pagination supplied). Appellees later argued that the record also did not support a claim of gross negligence. Appellees’ Reply Brief in Support of Motion for Summary Judgment, 3/31/2017, at 24. Appellees contended that Appellants’ expert, Moskowitz, attributed Bourgeois’s injuries to a “confluence of … interlinked events” and thus, Appellees would have no way of knowing or any reason to have known such events could have arisen to cause harm. Id. Appellants opposed Appellees’ motion for summary judgment by presenting the evidence referenced supra.

As the Majority recounts, the trial court stated the following regarding its determination that Appellants failed to set forth evidence support their claims of gross negligence and recklessness:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the [*24]  mats at the bottom of hills for snow tubers. … The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Bourgeois] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Court Order Granting Summary Judgment, 6/19/17, at 18-19.

The trial court further found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. at 19. See also id. at 22-23 (discussing gross negligence).

Noticeably absent from the trial court’s discussion is any mention of Appellants’ expert reports. “At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party.” Greely v. W. Penn Power Co., 2017 PA Super 33, 156 A.3d 276, 282-84 (Pa. Super. 2017). This includes all expert reports. In fact, this Court has held that when a trial court’s opinion does not reflect consideration of the non-moving party’s expert reports, this is error as it signals [*25]  a failure to consider all evidence of record in a light most favorable to the non-moving party. Id.

The Majority simply ignores the trial court’s failure to consider Appellants’ expert reports and undergoes its own analysis of the reports. It concludes that neither expert set forth a relevant standard of care and thus, the duty that Appellees failed to meet. Majority Memorandum at 8-10. The Majority dismisses the Moskowitz report entirely as irrelevant, and rejects the Di Nola report as conclusory. Id.

However, in my view, both experts satisfactorily assisted Appellants in establishing gross negligence and recklessness. Woven throughout the reports are detailed references to the way that Appellees grossly deviated from the standard of care. One cannot seriously dispute that Appellees owe their patrons, who are riding on a vinyl tube without a steering or stopping mechanism down a steep snow-covered hill on a course that Appellees designed, a duty to ensure that the patrons are able to stop safely without serious injury at the bottom. One hardly needs an expert to establish that placing a stationary object, which is designed for an entirely different use, in the path of a fast-travelling [*26]  snow tube rider in the hopes of slowing down the rider could instead, under certain foreseeable conditions, cause the rider to stop abruptly and eject the rider in a manner resulting in serious injury. This is particularly the case when Appellees have not conducted or reviewed studies to determine the effect of placing the mat in the rider’s path under various conditions. Further, a jury could find that risk of serious injury was substantially increased without a standardized method to measure riders’ specific speeds, assess conditions, or arrange the mats. Moreover, not only were the mats used by Appellees not designed for the purpose for which Appellees used them, they used the snow tubes in a manner that was contradicted expressly by the warning on the label – a label, by the way, which was illegible on Appellant’s tube.

The trial court states “[t]here is no evidence that [Appellants] were made aware of the risks of folding the deceleration mats and no evidence that any other incidents happened on the day Plaintiff suffered his injury[,] which would have put [Appellants] on notice that the mats were a problem. Trial Court Order Granting Summary Judgment, 6/19/2017, at 20 (emphasis [*27]  added). However, Appellants need not prove that Appellees actually were aware of the risks, just that Appellants had reason to know of facts which would lead a reasonable person to realize that the person’s conduct creates an unreasonable risk of physical harm to another and that such risk is substantially greater than that which is necessary to make the person’s conduct negligent. Tayar, 47 A.3d at 1200-01.4

In my view, Appellants have put forth enough evidence at this [*29]  stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

End of Document


The one group of people who never sign a release and to whom you have no defenses are spectators. Here a spectator was injured during a bicycle race.

In this case, the plaintiff attempted to bring in USA Cycling, Inc. Spectators are always at risk, and defendants have little they can do to keep from getting sued except fencing in most cases.

Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063; 2018 NY Slip Op 33177(U)

State: New York: Supreme Court of New York, Kings County

Plaintiff: Steven Levine

Defendant: USA Cycling, Inc. & Kissena Cycling Club

Plaintiff Claims:

Defendant Defenses: Sponsor, now in control of event

Holding: For the defendants

Year: 2018

Summary

Plaintiff Cyclists riding inside the race course was injured when a racer struck him. The plaintiff sued the club that put on the event and USA Cycling, Inc. that sanctioned the event. USA Cycling moved for summary judgment arguing it owed no duty to the plaintiff because it had no control over and did not do anything other than sanction the race.

Facts

In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event when he collided with another cyclist who was a participant in the bike race.

As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention….

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

The defendant USA Cycling was brought into the case to possibly add money to the pot that might be available to the defendant. USA Cycling argued that because they did not own, control or have anything to do with the race other than to sponsor the race for a fee, they could not be held liable for anything that happened.

The court distilled the plaintiff’s claims and the defendant’s defenses into a single argument:

At issue in this matter, is whether defendant USA Cycling owed a duty to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.

USA Cycling argued the following:

… USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.

Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.

It USA Cycling did not owe the defendant a duty, then there was no negligence. The court defined negligence under New York law as:

To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In the absence of a duty, there is no breach and without a breach there is no liability

So, the issue is, did USA Cycling’s involvement in the race rise to the level that it owed a duty to the plaintiff.

The plaintiff argued the involvement was much more than just providing insurance for the race.

They [USA Cycling] collect some fees to compensate for sanctioning the event and provide insurance for the event.

The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.

The court found the actions of USA Cycling did not rise to the level to create a duty to the plaintiff.

USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.

The court found USA Cycling had no control over the race. This lack of control could not create a duty to the plaintiff.

This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.

So Now What?

Spectators are necessary to any event. They “pay” for the event by either just being there so advertisers can sell to them or paying to enter the facility. Although the facts in this case are slightly different, other cyclists riding, the issues are still the same. Spectators are not a group of people that the event sponsors, owners; officials can create protection from litigation.

If a spectator gets hurt, there is little available to stop their claims.

Here the news was that USA Cycling had so little involvement in the race, they were able to successfully argue they owed no duty to the plaintiff. This argument is similar in all states; however, the definition of duty in each state and the type of involvement could make this difficult in some jurisdictions.

What do you think? Leave a comment.

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Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs,


Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)

Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)

Supreme Court of New York, Kings County

December 4, 2018, Decided

515257/15

Reporter

2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U) **

[**1] STEVEN LEVINE, Plaintiff(s), -against-USA CYCLING, INC. & KISSENA CYCLING CLUB, INC., Defendant(s). Index No: 515257/15

Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

Core Terms

Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs

Judges: [*1] Present: Hon. Judge Bernard J. Graham, Supreme Court Justice.

Opinion by: Bernard J. Graham

Opinion

DECISION / ORDER

Defendant, USA Cycling, Inc. (“USA Cycling”) has moved, pursuant to CPLR §3212, for an Order awarding summary judgment to the defendant and a dismissal of the plaintiff’s, Steven Levine, (“Mr. Levine”) complaint upon the grounds that the defendant was not negligent, and thus not liable for plaintiff’s injuries as they owed no duty to the plaintiff. The plaintiff opposes the relief sought by the defendant, USA Cycling, and maintains that the latter was negligent in that they had a greater involvement than just sanctioning the race in which the plaintiff was injured, and they failed to properly supervise, maintain and control the race in which the plaintiff who was not a participant in the race was seriously injured.

[**2] Background:

In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event [*2] when he collided with another cyclist who was a participant in the bike race.

As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention, an action was commenced on behalf of the plaintiff by the filing of a summons and complaint on or about December 21, 2015. Issue was joined by the service of a verified answer by USA Cycling on or about March 15, 2016. The plaintiff served a response to defendant’s Demand for a Verified Bill of Particulars dated March 24, 2016. Depositions of the plaintiff, as well as Todd Sowl, the chief financial officer of USA Cycling, were conducted on September 27, 2016.

In October 2016, the plaintiff moved to amend their complaint to add Kissena Cycling Club Inc., (“Kissena Cycling Club”) as an additional defendant. Kissena Cycling Club did not appear nor answer the complaint, but a default judgment had not been sought against said party.

In April 2017, plaintiff commenced a separate action against Kissena Cycling Club under index # 507066/2017. Plaintiff then filed a Note of Issue in the underlying action on July 25, 2017.

Defendant’s contention (USA Cycling, Inc.):

The defendant, in [*3] moving for summary judgment and a dismissal of the plaintiff’s complaint, maintains that the relief sought herein should be granted because in the absence of a [**3] duty to the plaintiff there cannot be a breach and without a breach they cannot be liable for negligence.

The defendant maintains that USA Cycling merely sanctioned the event that was run by Kissena Cycling Club. They issued a permit to allow Kissena Cycling Club to use the name of USA Cycling during the event.

Defendant asserts that there is no evidence to support an argument as to the existence of a principal-agent relationship between USA Cycling and Kissena Cycling Club nor was there any evidence of control by USA Cycling or consent by USA Cycling to act on its behalf. In addition, there is no written agreement between the two entities.

In support of defendant’s motion, is the affidavit of Todd Sowl in which he stated that USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent [*4] company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.

Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.

[**4] Plaintiff’s contention:

In opposing the motion of USA Cycling for summary judgment, plaintiff maintains that USA Cycling was sufficiently involved with the cycling event that caused plaintiff’s injuries that would result in their owing a duty to the plaintiff. Plaintiff contends that USA Cycling was negligent in their failure to properly operate, supervise, maintain, manage and control the bicycle race.

The plaintiff asserts that USA Cycling by its chief operating officer, Mr. Sowl, [*5] in both his deposition and his supporting affidavit stated that his organization sanctioned the cycling event in Prospect Park. They collect some fees to compensate for sanctioning the event and provide insurance for the event.

The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.

The plaintiff asserts that negligence cases by their very nature do not lend themselves to summary dismissal since the issue of negligence is a question for jury determination. The plaintiff maintains that the proof submitted by USA Cycling does not satisfy their initial burden of establishing the absence of a material issue of fact.

Discussion:

This Court has considered the submissions of counsel’ for the respective parties, the arguments presented herein, as well as the applicable law, in making a determination with respect to the motion by defendant, USA Cycling, for summary judgment and a dismissal of plaintiff’s action.

[**5] At issue in this matter, is whether defendant USA Cycling owed a duty [*6] to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.

The moving party in a motion for summary judgment bears the initial burden of demonstrating a prima facie entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate the absence of any material issue of fact (Drago v. King, 283 AD2d 603, 725 NYS2d 859 [2nd Dept. 2001]).

In support of USA Cycling’s motion for summary judgment, the defendant offers the deposition testimony of Todd Sowl, as well as Charles Issendorf, the event director of Kissena Sports Project Inc. d/b/a Kissena Cycling Club, who was deposed on June 14, 2018 in the related action, as well as case law which examined whether a party under similar circumstances would have been found to be negligent and thus liable to an injured party.

To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644 [1981]. In the absence of a duty, there is no breach and without a breach there is no liability (see Light v. Antedeminico, 259 A.D.2d 737, 687 N.Y.S.2d 422; Petito v. Verrazano Contr. Co., 283 A.D.2d 472, 724 N.Y.S.2d 463 [2nd Dept. 2001]).

In determining whether USA Cycling had a duty to the plaintiff, this Court examined the role of USA Cycling and specifically [*7] its involvement in this race, as well as that of the Kissena Cycling Club. The Court further considered the deposition testimony of Todd Sowl as well as Charles Issendorf.

USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While [**6] they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.

This lack of control over the event by USA Cycling and by contrast the control exhibited by the Kissena Cycling Club is further demonstrated through the deposition testimony of Charles Issendorf. [*8] Mr. Issendorf as the race director for Kissena Cycling Club has been organizing races for fourteen years. Mr. Issendorf characterized his club as more of a social club where its members race together. There are generally thirty races conducted between the months of March and September with the venues being in both Prospect Park and Floyd Bennett Field which is also situated in Brooklyn, New York. Mr. Issendorf testified that he obtains the permit for the subject race directly from the representatives of Prospect Park. Mr. Issendorf is instructed to have certain safety measures implemented at all races. He sets up the course by putting out the safety measures which includes the safety signs that are needed for the race. He also organizes the race marshals, and the pace and follow motorcycles to ensure that there is a motorcycle in both the front and back of each group.1 Mr. Issendorf further testified that Prospect Park has rules in terms of the placement of safety cones and signs that are needed, as well as the race marshals. Kissena Cycling club provides what could be characterized as “lawn signs” and Mr. Issendorf personally places these signs in the grass along the bike route. There [*9] are also traffic safety cones throughout the course that contain a sign which bear the words “caution, bicycle [**7] race”, that are placed there by Mr. Issendorf. The signs are generally situated one hundred meters apart and they are placed at crosswalks, entrances to the park, as well as at high traffic areas where there is a concentration of people. As to the course, the two lanes to the right of a double white line is where the participants are allowed to race. To the left of the double white line is the location of the pedestrian or the recreation lane. There are written instructions on the website of the club which states that at all times the participants are not allowed to enter the pedestrian or recreation lane. The race organizers also make use of a portable PA system at the race in which the chief referee warns the riders to stay to the right of the white right lane, and if they were to cross into the recreation lane it would result in their disqualification.

This Court finds that while USA Cycling sanctioned the race of June 14, 2014, the plaintiff has not sufficiently refuted the assertion and proof offered by USA Cycling that the latter did not organize, direct, control, supervise [*10] or select the venue nor did they have any employees or agents at the cycling event, and thus, had no duty to the plaintiff. Courts have addressed situations that are akin to the case at bar. The Court in Chittick v. USA Cycling Inc., 54 AD3d 625, 863 NYS2d 679 [1st Dept. 2008]), in finding that an award of summary judgment and a dismissal of the action against USA Cycling was warranted, in which spectators were injured during a bicycle race when struck by the rear pace vehicle, determined that USA Cycling had no duty to prevent any negligence involved therein. The Court in Chittick determined that USA Cycling merely sanctioned the race by lending its name to the race. The fact that USA Cycling provided the rule book to the organizer of the race did not impose a duty upon them to enforce any of the rules thereon. There was also no inference drawn as to the existence of a principal-agency relationship between USA Cycling and the race organizer.

[**8] The Court in Megna v. Newsday, Inc., 245 AD2d 494, 666 NYS2d 718 [2nd Dept. 1997], in granting summary judgment to the defendant, determined that the defendant merely sponsored the race in which the injured plaintiff had participated. It was determined that the defendant owed no duty of care to the plaintiff as the defendant was not in any way involved in the design, layout, maintenance [*11] or control of the race course, and was not in a position to assume such control (see also Mongello v. Davos Ski Resort, 224 A.D.2d 502, 638 N.Y.S.2d 166 [2nd Dept. 1966]; Johnson v. Cherry Grove Island Management Inc., 175 AD2d 827, 573 NYS2d 187 [2nd Dept. 1991]).

This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.

Conclusion:

The motion by defendant, USA Cycling, Inc. for summary judgment and a dismissal of plaintiff’s complaint is granted.

[**9] This shall constitute the decision and order of this Court.

Dated: December 4, 2018 [*12]

Brooklyn, New York

ENTER

/s/ Bernard J. Graham

Hon. Bernard J. Graham, Justice

Supreme Court, Kings County


Release for a health club which had a foam pit included language specific to the injury the plaintiff suffered, which the court used to deny the plaintiff’s claim.

Argument made that the word inherent limited the risks the release covered and as such did not cover the injury the plaintiff received.

Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

State: Illinois, Appellate Court of Illinois, Second District

Plaintiff: Kamil Macias

Defendant: Naperville Gymnastics Club

Plaintiff Claims: negligent in its failure to properly supervise the open gym, train participants, and warn participants of hazards and dangers accompanied with activities and use of equipment in the open gym

Defendant Defenses: Release

Holding: For the Defendant

Year: 2015

Summary

Plaintiff was injured jumping headfirst into a foam pit at the defendant’s gym. The plaintiff had signed a release relieving the defendant of liability, which was upheld by the trial court and the appellate court.

For the first time, the plaintiff argued the release was limited by the language in the release because it used the term inherent in describing the risks. Inherent limits the risks, to those that are part and parcel of the activity and the injury that befell the plaintiff was a freak accident.

Facts

The plaintiff went to the defendant club during open hours when the public could attend with a friend. He paid an admission fee and signed a release. The club had a foam pit. The plaintiff watched other people jump into the pit then tried it himself. He jumped off the springboard and instead of landing feet first he landed head first in the pit.

The plaintiff broke his neck requiring extensive surgery and rehabilitation.

The defendant club filed a motion to dismiss based upon the release signed by the plaintiff. The trial court denied the motion to dismiss because the release was ambiguous.

During discovery, the plaintiff admitted he did not see the rules of the gym but did understand the risks of landing in the pit head first.

Walk around all pits and trampolines,” and he stated that he understood what this meant. The rules also stated: “Do not play on any equipment without proper supervision,” and “Do not do any gymnastics without proper supervision,” and plaintiff stated that he understood what these meant. Plaintiff also stated that he did not see a sign painted on the wall in the gym titled, “Loose foam pit rules.” That sign stated: “Look before you leap,” “No diving or belly flops,” and “Land on feet, bottom or back only.” Plaintiff acknowledged that he understood what these meant

After discovery, the defendant club filed a motion for summary judgment based on the additional information collected during discovery. The trial court granted that motion, and this appeal was dismissed.

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

The appellate court looked at contract law in Illinois.

The primary objective in construing a contract is to give effect to the parties’ intent, and to discover this intent the various contract provisions must be viewed as a whole. Words derive meaning from their context, and contracts must be viewed as a whole by examining each part in light of the other parts. Id. Contract language must not be rejected as meaningless or surplusage; it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly.

A release is a contract. For the release to be valid and enforceable, it should:

…contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. In this way, the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution.

The court found the injury suffered by the plaintiff fell within the scope of the possible injuries of the release and contemplated by the plaintiff upon signing the release.

Two clauses in the release stated the plaintiff was in good physical health and had proper physical condition to participate. The plaintiff argued these clauses made the release ambiguous; however, the appellate court did not find that to be true.

Here is the interesting argument in the case.

I have repeatedly stated that releases that limit releases to the inherent risk are limited in their scope. The plaintiff made that argument here.

Plaintiff argues that the use of “inherent risk” language throughout the release creates an ambiguity as to whether the language covers only dangers inherent in gymnastics and not freak accidents. We also reject this argument. As previously stated, the release specifically lists landing on landing surfaces as an inherent risk. Thus, there is no ambiguity as to whether plaintiff’s injury was covered by the release.

The plaintiff also argued his injury was not foreseeable because:

… (1) he lacked specialized knowledge of gymnastics and, in particular, foam pits, to appreciate the danger and foresee the possibility of injury, and (2) his injury was not the type that would ordinarily accompany jumping into a foam pit.

The argument on whether the injury was foreseeable is not whether the plaintiff knew of the risk but:

The relevant inquiry is not whether [the] plaintiff foresaw [the] defendants’ exact act of negligence,” but “whether [the] plaintiff knew or should have known” the accident “was a risk encompassed by his [or her] release.

The court found the injury the plaintiff received was on that was contemplated by the release.

Thus, the issue here is whether plaintiff knew or should have known that the accident was a risk encompassed by the release which he signed. As previously determined, the language of the release in this case was specific enough to put plaintiff on notice. In discussing inherent risks in the sport of gymnastics and use of the accompanying equipment, the release lists injuries resulting from landing on the landing surfaces, which includes injuries to bones, joints, tendons, or death.

The plaintiff also argued the release violated public policy because the release was presented to “opened its gym to the unskilled and inexperienced public” when it opened its gym to the public.

The court struck down this argument because the freedom to contract was greater than the limitation on damages issues.

The appellate court affirmed the trial court’s granting of the summary judgment for the defendant based on the release.

So Now What?

The inherent risk argument here was made but either not effectively argued by the plaintiff or ignored by the court. However, for the first time, the argument that the word inherent is a limiting word, not a word that expands the release was made in an argument.

What do you think? Leave a comment.

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Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

Kamil Macias, Plaintiff-Appellant, v. Naperville Gymnastics Club, Defendant-Appellee.

No. 2-14-0402

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

March 10, 2015, Order Filed

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

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Du Page County. No. 11-L-1418. Honorable Judges Hollis L. Webster and John T. Elsner, Judges, Presiding.

DISPOSITION: Affirmed.

CORE TERMS: gym, pit, landing, summary judgment, foam, exculpatory clause, gymnastics, release agreement, surface, inherent risk, jumping, discovery, ambiguity, exculpatory, deposition, injury resulting, public policy, risk of injury, physical condition, releasing, ambiguous, sport, bones, supervision, de novo, springboard, encompassed, notice, undersigned, climbing

JUDGES: JUSTICE BURKE delivered the judgment of the court. Presiding Justice Schostok and Justice Zenoff concurred in the judgment.

OPINION BY: BURKE

OPINION

ORDER


Held: Release agreement for the gym was sufficiently clear, explicit, and unequivocal to show intent to protect facility from liability arising from use of its “foam pit”; it was proper for the gym to raise the issue it had raised in the section 2-619 motion in a summary judgment motion as it alleged new facts which were developed during discovery that affected the validity of the release; affirmed.

[*P2] Plaintiff, Kamil Macias, filed a complaint against defendant, Naperville Gymnastics Club (the Club), for injuries he received after jumping off a springboard and landing head first into a “foam pit.” The trial court denied the Club’s motion to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), but it later granted the Club’s motion for summary judgment based on a liability release agreement signed by plaintiff. Plaintiff raises several issues on appeal concerning the release and the effect of the earlier [**2] section 2-619 motion to dismiss. We affirm.

[*P3] I. BACKGROUND

[*P4] On January 15, 2011, plaintiff came to the Club with his friend. The Club offers “open gym” hours where members of the Club and the general public can attend. Plaintiff, who was not a member of the Club, paid a $10 admission fee and he signed a liability release agreement.

[*P5] A foam pit was located in the gym. After seeing participants jumping into the pit, plaintiff jogged up to a springboard in front of the pit, jumped onto the board and into the pit. While attempting to jump feet first, plaintiff’s body moved in the air, causing him to land head first, striking the bottom of the pit. Plaintiff immediately lost all feeling in his body below the neck. He remained in the pit covered by pieces of foam until he was extracted by the Naperville Fire Department. At the time, plaintiff was 20 years old, about 6 feet tall, and weighed 310 pounds. As a result of the accident, plaintiff suffered a broken neck, requiring extensive surgery and rehabilitation. Plaintiff filed a complaint alleging the Club was negligent in its failure to properly supervise the open gym, train participants, and warn participants of hazards and dangers accompanied with activities [**3] and use of equipment in the open gym.

[*P6] The Club filed a section 2-619(a)(9) motion to dismiss (735 ILCS 5/2-619(a)(9) (West 2010)), alleging that plaintiff signed a two-page liability release agreement that contained an exculpatory clause releasing the Club from liability for any acts of negligence.

[*P7] The trial court found the release ambiguous and denied the section 2-619(a)(9) motion without prejudice. In denying the motion, the judge stated that she felt it was inappropriate to dismiss the suit at that point, that there was case law on both sides of “these exculpatory clauses,” and the judge agreed that it was something that could be developed through discovery. She further stated, “But I think it’s something that is better suited for a summary judgment motion if the facts do bear that out from the defense’s perspective.”

[*P8] During discovery, plaintiff was questioned by defense counsel and testified to the following:

“Q. Okay. That first part of the form it says, ‘To gain admission to the activity areas of [the Club], all parts of this form must be read, understood, and signed.’ Do you see that?

A. Yes.

Q. And did you understand what that means?

A. Yes.

* * *

Q. Did you understand this to be an agreement on January 15th, 2011[,] between you and [the [**4] Club]?

A. Had I read this agreement I would have understood.

* * *

Q. And you understand that [the release] means that when you sign it that you’re agreeing to not bring any lawsuit against [the Club]?

A. Correct.

Q. And if you had read it on January 15th of 2011, that’s what you would have understood it to mean?

A. Correct.

* * *

Q. And you agree that the sport of gymnastics is a risky sport?

A. Correct.

Q: And you would have felt the same on January 15th, 2011[,] before your accident?

A. Yes.”

[*P9] At the entrance to the gym was a closed door with a window pane in it. Plaintiff did not recall seeing a sign on the door entitled, “Rules of the Gym.” Plaintiff reviewed the rules at his deposition and admitted that it said to “Walk around all pits and trampolines,” and he stated that he understood what this meant. The rules also stated: “Do not play on any equipment without proper supervision,” and “Do not do any gymnastics without proper supervision,” and plaintiff stated that he understood what these meant. Plaintiff also stated that he did not see a sign painted on the wall in the gym titled, “Loose foam pit rules.” That sign stated: “Look before you leap,” “No diving or belly flops,” and “Land on [**5] feet, bottom or back only.” Plaintiff acknowledged that he understood what these meant.

[*P10] After discovery, the Club filed a motion for summary judgment, arguing that plaintiff’s claim was barred by the exculpatory clause of the release signed by plaintiff. The motion included the deposition testimony and that (1) plaintiff denied being given any verbal instructions and denied seeing the warning signs or rules posted in the gym before he was injured, and (2) plaintiff admitted that he would have understood the terms of the liability release, had he read it. Following argument, the trial court granted the Club’s motion for summary judgment. This timely appeal follows.

[*P11] II. ANALYSIS

[*P12] A. Standard of Review

[*P13] Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2010). The motion should be denied if there are disputed facts, but also if reasonable people could draw different inferences from the undisputed facts. Wood v. National Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585, 755 N.E.2d 1044, 258 Ill. Dec. 225 (2001). We review an order granting summary judgment de novo. Pielet v. Pielet, 2012 IL 112064, ¶ 30, 978 N.E.2d 1000, 365 Ill. Dec. 497.

[*P14] We review the parties’ [**6] liability release agreement in accordance with well-established contract principles. Joyce v. Mastri, 371 Ill. App. 3d 64, 74, 861 N.E.2d 1102, 308 Ill. Dec. 537 (2007). The primary objective in construing a contract is to give effect to the parties’ intent, and to discover this intent the various contract provisions must be viewed as a whole. Kerton v. Lutheran Church Extension Fund, 262 Ill. App. 3d 74, 77, 634 N.E.2d 16, 199 Ill. Dec. 416 (1994). Words derive meaning from their context, and contracts must be viewed as a whole by examining each part in light of the other parts. Id. Contract language must not be rejected as meaningless or surplusage; it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly. Id.

[*P15] In order for an exculpatory clause to be valid and enforceable, it should contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. Calarco v. YMCA, 149 Ill. App. 3d 1037, 1040, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986). In this way, the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution. Neumann v. Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 827, 500 N.E.2d 1011, 102 Ill. Dec. 910 (1986). The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract [**7] was entered into. Schlessman v. Henson, 83 Ill. 2d 82, 86, 413 N.E.2d 1252, 46 Ill. Dec. 139 (1980). It should only appear that the injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff. Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Further, when interpreting a contract containing an exculpatory clause, the court must interpret the scope of the exculpatory provision in the “context of the entire agreement.” Shorr Paper Products, Inc. v. Aurora Elevator, Inc., 198 Ill. App. 3d 9, 13, 555 N.E.2d 735, 144 Ill. Dec. 376 (1990). We review the interpretation of an exculpatory agreement or release of liability authorization de novo. Stratman v. Brent, 291 Ill. App. 3d 123, 137, 683 N.E.2d 951, 225 Ill. Dec. 448 (1997).

[*P16] In Garrison, a member of a health club who was injured when lifting weights on a bench press brought suit against the club and the manufacturer of the press. The trial court entered summary judgment in favor of the club, and the plaintiff appealed. The First District Appellate Court held that the exculpatory clause could not have been more clear or explicit, as it stated that each member bore the “sole risk” of injury that might result from the use of weights, equipment, or other apparatus provided and that the selection of the type of equipment to be used would be the “entire responsibility” of the member. The court found that the injury the plaintiff sustained clearly fell within the scope of possible dangers [**8] ordinarily accompanying the activity of weightlifting. Id. at 585. The court observed that the injury was of a type that would normally be contemplated by the parties at the time the contract was made and, therefore, the court held that it clearly fell within the parameters of the exculpatory clause. Id. See also Hussein v. L.A. Fitness International, LLC, 2013 IL App (1st) 121426, 987 N.E.2d 460, 369 Ill. Dec. 833; Neumann v. Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 500 N.E.2d 1011, 102 Ill. Dec. 910 (1986).

[*P17] Similar to Garrison and the cases cited above, the release agreement in the present case is clear and specific regarding the risks it covers and the release of the Club’s negligence. It specifically references the inherent risk of injury resulting from landing on landing surfaces, and plaintiff acknowledged in his deposition that this phrase includes the foam pit in which he was injured. The agreement also releases the Club from any and all claims, including those caused by its negligence. Furthermore, plaintiff’s signature certified that he recognized the dangers inherent with climbing and jumping activities and that he voluntarily assumed the risks.

[*P18] Nevertheless, plaintiff raises several arguments regarding the validity of the release and the effect of the earlier section 2-619 motion.

[*P19] B. Ambiguity of the Release

[*P20] 1. First Clause

[*P21] The first clause of the release, which is typed in capital letters, states: [**9]

“BY SIGNING THIS DOCUMENT YOU ACKNOWLEDGE THAT UNSUPERVISED USE OF ANY AREA OF FACILITY IS STRICTLY PROHIBITED AND COMPLETELY AT THE RISK OF THE PARTICIPANT AND THAT THE RULES [OF] EACH AREA BEING UTILIZED ARE UNDERSTOOD PRIOR TO PARTICIPATION!”

Plaintiff asserts that this clause is ambiguous as to whether supervision and a full understanding of the rules of the Club is a condition precedent to releasing defendant from liability. We agree that the first clause, standing alone, might be construed as stating that supervision and a full understanding of the rules of the Club is a condition preceding releasing the Club from liability. However, case law teaches that we must review the language of the release in its entirety in order to interpret the parties’ intent.

[*P22] The release contains a “Covenant Not to Sue for Injury or Damages,” which provides, in relevant part:

“Notice: This is a legally binding agreement. By signing this agreement, you waive your right to bring a court action to recover compensation or to obtain any other remedy for any injury to yourself *** however caused arising out of use of the facilities of [the Club].

I hereby acknowledge and agree that the sport of gymnastics [**10] and the use of the accompanying equipment has INHERENT RISKS. I have full knowledge of the nature and extent of all of the risks inherent in gymnastics and the use of the facilities of the gym, including but not limited to:

***

5. Injuries resulting from landing on the landing surfaces; and

6. Injuries to bones, joints, tendons, or death.

[*P23] The section of the release agreement entitled “Release Indemnification Liquidation Damages and Agreement to Arbitrate” states, in relevant part:

“In consideration of my use of the GYM, I the undersigned user, agree to release on behalf of myself *** [the Club] *** including but not limited to a claim of NEGLIGENCE.”

[*P24] The clause of the release immediately preceding plaintiff’s signature provides that “the undersigned recognize[s] the dangers inherent with climbing and jumping activities,” and the undersigned is “assuming the hazard of this risk upon myself because I wish to participate. I realize that I am subject to injury from this activity and that no form of pre-planning can remove all of the danger to which I am exposing myself.”

[*P25] In reading the release in its entirety, it is clear that the first clause of the release cannot be construed as plaintiff argues. The [**11] release contains no such limitations as it covers a number of activities, including “[i]njuries resulting from landing on the landing surfaces” (i.e. the “foam pit”), releasing the Club from negligence, and “the dangers inherent with climbing and jumping activities.”

[*P26] 2. Physical Condition Clause

[*P27] Two clauses of the release request the participant to agree that he or she is in good physical health and proper physical condition to participate. Plaintiff cites Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986), and Macek v. Schooner’s Inc., 224 Ill. App. 3d 103, 586 N.E.2d 442, 166 Ill. Dec. 484 (1991), for the proposition that these types of clauses render the release ambiguous, as it is unclear whether the release only applies to injuries resulting from a participant’s physical ailments. In other words, the release does not apply to participants without physical ailments.

[*P28] We fail to follow the logic of plaintiff’s argument. However, the cases relied on by plaintiff are readily distinguishable. In Calarco, the plaintiff had been injured when metal weights from an exercise machine fell on her hand, breaking her bones. The plaintiff had agreed “to hold free from any and all liability the [defendant] *** for damages which [the plaintiff] may have or which may hereafter accrue to [the plaintiff] arising out of or connected with [the plaintiff’s] participation [**12] in any of the activities of the [defendant].” We held that the exculpatory clause in the membership application for the defendant’s facility was insufficient to protect the defendant from liability as a matter of law because the clause did not adequately describe the covered activities to clearly indicate that defendant’s negligence would be covered by the release. Calarco, 149 Ill. App. 3d at 1043-44. We further noted that the statement immediately following the alleged exculpatory language contained a declaration of physical health by the signer, and that the combination of the two provisions further complicated the interpretation of the release. Id.

[*P29] In Macek, the plaintiff participated in an arm wrestling contest with a machine that broke his arm. The court held that summary judgment was inappropriate because the release did not specify the covered activities but rather merely indicated that damages for “all injuries suffered” are waived. The court found further that the line immediately following the exculpatory language regarding the signer’s physical condition provided additional ambiguity. Id. at 106.

[*P30] In both Calarco and Marek, the releases did not specify the covered activities and did not specifically cover the defendants’ [**13] negligence. Both courts held that the physical condition clause simply added to the ambiguity of the release. However, contrary to Calarco and Marek, the release in this case clearly covers the activities in question and specifically releases defendant from liability for its negligence.

[*P31] 3. Inherent Risk Language

[*P32] Plaintiff argues that the use of “inherent risk” language throughout the release creates an ambiguity as to whether the language covers only dangers inherent in gymnastics and not freak accidents. We also reject this argument. As previously stated, the release specifically lists landing on landing surfaces as an inherent risk. Thus, there is no ambiguity as to whether plaintiff’s injury was covered by the release.

[*P33] C. Forseeability

[*P34] Plaintiff argues that his injury was not foreseeable because (1) he lacked specialized knowledge of gymnastics and, in particular, foam pits, to appreciate the danger and foresee the possibility of injury, and (2) his injury was not the type that would ordinarily accompany jumping into a foam pit.

[*P35] A plaintiff who expressly consents to relieve a defendant of an obligation of conduct toward the plaintiff assumes the risk of injury as a result of the [**14] defendant’s failure to adhere to the obligation. Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 576, 474 N.E.2d 729, 85 Ill. Dec. 769 (1984). The doctrine of assumption of risk presupposes, however, that the danger which causes the injury is such that it ordinarily accompanies the activities of the plaintiff, and that the plaintiff knows or should know both the danger and the possibility of injury prior to its occurrence. Id. at 576. The standard is a subjective one geared to a particular plaintiff, and the determination ordinarily will be made by a jury. Id. at 576-77.

[*P36] “The foreseeability of a specific danger defines the scope.” Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211. “The relevant inquiry *** is not whether [the] plaintiff foresaw [the] defendants’ exact act of negligence,” but “whether [the] plaintiff knew or should have known” the accident “was a risk encompassed by his [or her] release.” Hellweg v. Special Events Management, 2011 IL App (1st) 103604, ¶ 7, 956 N.E.2d 954, 353 Ill. Dec. 826.

[*P37] Thus, the issue here is whether plaintiff knew or should have known that the accident was a risk encompassed by the release which he signed. As previously determined, the language of the release in this case was specific enough to put plaintiff on notice. In discussing inherent risks in the sport of gymnastics and use of the accompanying equipment, the release lists injuries resulting from landing on the landing surfaces, which includes [**15] injuries to bones, joints, tendons, or death. Plaintiff agreed that the foam pit was a landing surface and that some of the possible injuries that he could sustain at the gym from gymnastics activities included injuries to his bones, and he admitted at deposition that he had not read the release and that, had he read the release, he would have understood it to mean that he could not sue the gym for any injuries he sustained. Based on these facts, plaintiff should have known the risks of injury associated with the activity of jumping into the foam pit. Plaintiff participated in open gym, which reasonably contemplates participating in the use of the accompanying equipment. Plaintiff could have reasonably presumed that, should he jump from a springboard into the foam pit, he might land on his head. It is entirely foreseeable that, if plaintiff accidently fell on his head, he would be hurt by “landing on the landing surfaces,” a risk encompassed by the release agreement. See Oelze v. Score Sports Venture, 401 Ill. App. 3d 110, 121, 927 N.E.2d 137, 339 Ill. Dec. 596 (2010). Although plaintiff suffered a serious injury, we are bound by the release agreement. Accordingly, we find the trial court properly granted summary judgment on the basis that the release barred plaintiff’s negligence [**16] claim.

[*P38] D. Public Policy

[*P39] Plaintiff next argues that it would be against public policy to enforce the release in this case because the Club opened its gym to the unskilled and inexperienced public. Plaintiff does not cite any cases in support of this argument. In fact, the only case he cites, Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 930 N.E.2d 578, 341 Ill. Dec. 368 (2010), is inapposite to his position.

[*P40] Several cases have rejected plaintiff’s argument in the fitness club setting. See, e.g., Kubisen v. Chicago Health Clubs, 69 Ill. App. 3d 463, 388 N.E.2d 44, 26 Ill. Dec. 420 (1979); Owen v. Vic Tanny’s Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (1964). Had plaintiff, an adult, read the release and disagreed with it, he could have simply refused to participate in open gym. “While exculpatory or limitation of damages clauses are not favored and must be strictly construed against a benefitting party [citation] the basis for their enforcement is the strong public policy favoring freedom of contract.” Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co., 226 Ill. App. 3d 507, 512, 589 N.E.2d 1034, 168 Ill. Dec. 634 (1992). There does not seem to be any reason in this case to depart from the strong public policy of allowing parties to freely enter into contracts.

[*P41] E. Section 2-619 Motion to Dismiss

[*P42] The Club filed a section 2-619 motion, alleging that plaintiff signed a two-page liability release that contained an exculpatory clause, which released the Club from liability for any acts of negligence. The trial court found the release was ambiguous and denied the motion. However, [**17] the court recognized that disputed facts might affect the validity of the release and indicated that the Club was free to raise the issue again in a summary judgment motion after facts surrounding the execution of the release were developed in discovery.

[*P43] Citing Makowski v. City of Naperville, 249 Ill. App. 3d 110, 117-18, 617 N.E.2d 1251, 187 Ill. Dec. 530 (1993), plaintiff acknowledges that a trial court may allow a party to reassert a defense after previously ruling on the merits only when new evidence is presented. Plaintiff claims that the summary judgment motion did not allege new facts but simply relied on the language of the release as it did in the Club’s section 2-619 motion. We disagree.

[*P44] The Club did allege additional facts in its summary judgment motion that were developed during discovery that affected the validity of the release. Those facts included plaintiff’s acknowledgment that he understood the meaning of the terms of the release, that he understood the inherent risks, and that he understood that the risk of “landing on landing surfaces” would include the foam pit where he was injured. He also testified that had he read the release he would have understood its language to mean that he could not sue the gym for any injuries he sustained. Since we review a summary judgment motion [**18] de novo (Pielet, 2012 IL 112064, ¶ 30), this evidence tends to defeat plaintiff’s ambiguity arguments.

[*P45] III. CONCLUSION

[*P46] For the reasons stated, we affirm the judgment of the Circuit Court of Du Page County granting the Club’s motion for summary judgment.

[*P47] Affirmed.