Older Nevada Supreme Court Decision holds releases are only proof of assumption of the risk if the release meets the assumption of risk requirements.Posted: June 18, 2018
In Nevada to Assume the Risk, the plaintiff must voluntarily expose themselves to the risk and have actual knowledge of the risk.
State: Nevada, Supreme Court of Nevada
Plaintiff: Sherri Renaud
Defendant: Convention Center Ltd. dba Flyaway,
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: For the Plaintiff
Nevada Supreme Court holds a release is only proof of assumption of the risk and is NOT absolute proof. The defendant still must prove the plaintiff voluntarily assumed and have knowledge of the risk.
The good news is this decision has not been used in any additional Nevada decisions or a decision in any other state.
Plaintiff went to the defendant’s business wanting to experience a free fall simulator. Before participating, she signed a release.
After the plaintiff was injured and sued, the defendant filed a motion for summary judgment based on the release signed by the plaintiff. The motion was denied because it did not prove the plaintiff voluntarily assumed and understood the risks.
Analysis: making sense of the law based on these facts.
Under Nevada’s law, Assumption of the risk has a two-prong test to be proved.
First, there must have been voluntary exposure to the danger.
Second, there must have been actual knowledge of the risk assumed.
The plaintiff argued, and the Supreme Court agreed with her argument that she did not fully understand the risks of simulated free fall. That waiver of the facts, that can be interpreted in more than one way is enough to eliminate a motion for summary judgment.
So Now What?
Who knows why the Nevada Supreme Court made this decision. However, this shows the reason why you list the possible risks of your activity in your release. A pure legal document as a release can only be used as that, a pure legal release.
If the release is thrown out for any reason, if you have listed the risks of the activity in the release, you can argue it should be used to prove assumption of the risk.
Here when the court decides that a release is not longer a contract not to sue, but attempted proof of assumption of the risk, it becomes critical.
Copyright 2018 Recreation Law (720) 334 8529
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Sherri Renaud, Appellant, v. 200 Convention Center Ltd. dba Flyaway, Respondent
Supreme Court of Nevada
102 Nev. 500; 728 P.2d 445; 1986 Nev. LEXIS 1623
December 4, 1986, Filed
PRIOR HISTORY: [***1] Appeal from a summary judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
DISPOSITION: Reversed and remanded.
PROCEDURAL POSTURE: Appellant challenged a decision of the Eighth Judicial District Court, Clark County (Nevada), which granted respondent summary judgment in appellant’s negligence action.
OVERVIEW: Appellant filed a negligence claim against respondent for injuries she sustained while utilizing its free-fall simulator. Respondent had required that appellant sign a liability release form. The release purported to exculpate respondent of any liability for negligence that might occur while appellant was on its premises. The trial court granted respondent’s motion for summary judgment. On appeal, the court reversed and remanded. The court noted that appellant had denied appreciation of the risks associated with the free-fall simulator. The court held that, because there was a dispute as to whether appellant knowingly and voluntarily assumed the risks associated with the simulator, the matter was not appropriate for a determination as a matter of law.
OUTCOME: The court reversed the decision of the trial court, which granted respondent summary judgment in appellant’s negligence action, and remanded for further proceedings.
CORE TERMS: matter of law, simulator, summary judgment, actual knowledge, free-fall, genuine issues, fact finder, risks associated, voluntarily assumed, essential element, utilizing
COUNSEL: Albert D. Massi and Allen A. Cap, Las Vegas, for Appellant.
Dickerson, Miles, Pico & Mitchell and Shirley D. Lindsey, Las Vegas, for Respondent.
Jonathan C. Reed, Las Vegas, Nevada Trial Lawyers Association, Amicus Curiae.
JUDGES: Mowbray, C.J., Springer, J. Gunderson, J. Steffen, J. and Young, J.
OPINION BY: PER CURIAM
[*500] [**446] Sherri Renaud filed a negligence claim against Flyaway for [*501] injuries she sustained while utilizing its free-fall simulator. Flyaway had required that Ms. Renaud sign a liability release form. The release purported to exculpate Flyaway of any liability for negligence that might occur while Ms. Renaud was on its premises. A motion for summary judgment was brought by Flyaway for the sole purpose of determining the validity of the signed release. The district court granted the motion, thereby barring further prosecution of the lawsuit. Because we agree with Ms. Renaud that genuine issues of fact exist, the order of the district court granting summary judgment in favor [***2] of Flyaway is reversed.
It is well established that [HN1] summary judgment is appropriate only “where it is quite clear what the truth is, and where no genuine issue remains for trial.” In re Hilton Hotel, 101 Nev. 489, 492, 706 P.2d 137, 138 (1985). The moving party bears the burden of demonstrating that judgment as a matter of law is appropriate. Id. Additionally, upon review, all evidence is considered in a light most favorable to the non-moving party. Id.
Here, Flyaway (in its motion for summary judgment) successfully urged the trial court to accept the signed release as conclusive evidence that Ms. Renaud relieved Flyaway of liability for any injuries that she might sustain while utilizing the free-fall simulator. The determination that the release was valid indicated that Ms. Renaud assumed the risk of the injuries that she sustained. We do not agree that the release itself was sufficient to establish such a fact as a matter of law.
[HN2] Assumption of the risk is based on a theory of consent. In Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961), this court asserted that in order for a litigant to have assumed the risk, two requirements must be met. [***3] First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed. Id. at 73, 358 P.2d at 894. “A risk can be said to have been voluntarily assumed by a person only if it was known to him and he fully appreciated the danger.” Id. at 71-72, 358 P.2d at 894, quoting Papagni v. Purdue, 74 Nev. 32, 35, 321 P.2d 252, 253 (1958). As elucidated in Sierra, the essential element of the defense is the actual knowledge of the danger assumed. 77 Nev. at 71, 358 P.2d at 894.
Ms. Renaud denied appreciation of the risks associated with the free-fall simulator. Because actual knowledge of the risks assumed is an essential element of this defense, such a matter [*502] must be reserved for the fact finder. It is necessary to evaluate all the circumstances as they existed at the time the release was obtained. Considerations should include (but are not limited to) the following: the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing.
Thus, because there was a dispute as to whether Ms. Renaud [***4] knowingly and voluntarily assumed the risks associated with the simulator, the matter was not appropriate for a determination as a matter of law. E.g., Pacific Pools Constr. v. McClain’s Concrete, 101 Nev. 557, 706 P.2d at 849 (1985). See also O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla.Dist.Ct.App. 1982) (a signed liability waiver was deemed not sufficient as a matter of law to show that appellant subjectively understood the risks inherent in horseback riding and actually intended to assume those risks). Here, it is necessary for the fact finder to hear testimony and assess credibility. Accordingly, we reverse the ruling of the district court and remand the case for further proceedings consistent with this opinion. In light of our disposition, we decline to reach the other contentions raised on appeal.
New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.Posted: June 1, 2015
Plaintiff’s claims were dismissed because the plaintiff failed to present enough evidence to support any elements of his claim for his injuries skydiving.
State: New Jersey, Superior Court of New Jersey, Appellate Division
Plaintiff: Joseph Dare and Patricia Dare
Defendant: Freefall Adventures, Inc., John Ed-Dowes, Warren Acron and Eric Keith Johnson, Defendants-Respondents.
The plaintiff was injured when he attempted to avoid colliding with another sky diver. The co-participant had left the airplane first and was lower than the plaintiff; therefore, the co-participant had the right of way.
The plaintiff had been jumping from this site with the defendant for two years, which totaled 137 jumps, including every week the six months before the accident.
Prior to jumping the plaintiff signed a release. The release was five pages long and included an indemnity agreement. The plaintiff also signed a release for Cross Keys Airport, Inc.
The plaintiff sued his co-participant sky diver, as well as the jump facility for his injuries.
The plaintiff denied that it was the cause of his injury; however, he had made arrangements to have his wife photograph him during the jump. In order to allow his wife the opportunity to photograph him, he had to steer through buildings towards the concession trailer where his wife was located.
The defendants filed a motion for summary judgment, which was granted because the plaintiff failed to establish a prima facie case of negligence.
Prima facie, Latin for first look, which legally means the plaintiff, could not establish any facts or sufficient facts to support its claims. A plaintiff must show enough to the court to establish the very basics supporting the elements in its claim.
The defendant had argued that based on the release it should be awarded its attorney fees and costs also; however, the trial court did not grant this motion.
Analysis: making sense of the law based on these facts.
The court first looked at the standard of care between participants in a sporting event.
…the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” The Court’s determination was grounded on two policy considerations; the promotion of vigorous participation in athletic activities, and the avoidance of a flood of litigation generated by voluntary participation in games and sports.
The reckless standard is a greater standard than the negligence standard. That means the acts of the co-participant to be liable for the injuries of another participant must be beyond negligent acts.
The applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a “contact” or “noncontact” sport. The recklessness or intentional conduct standard of care articulated in Crawn was not meant to be applied in a crabbed fashion. That standard represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities.
Another reason for the application of the reckless standard rather than the negligence standard is the concern that the lower standard would create a flood of lawsuits for any sporting injury.
Recklessness under New Jersey law “entails highly unreasonable conduct, involving “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”
“The standard is objective and may be proven by showing that a defendant ‘proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position.'”. “Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”
The court also felt that a failure on the part of the plaintiff to provide expert testimony as to what standard of care was for skydiving doomed the plaintiff’s claims.
skydiving requires the training and licensing of participants. According to the record, it involves knowledge and conduct peculiar to the activity, including an understanding of wind direction and velocity, proper diver spacing, control of descent, and avoidance of ground hazards.
The appellate court upheld the trial courts dismissal of the plaintiff’s claims against the other co-participant sky diver. The court then looked at the plaintiffs’ claims against the defendant sky diving operation. The court found that the recklessness standard did not apply to the facility.
Consequently, the question here was whether, under the ordinary duty owed to business invitees, considering the nature of the risks associated with skydiving and the foreseeability of injury, plaintiff’s risk of injury was materially increased beyond those reasonably anticipated by skydiving participants as a result of the manner by which Freefall operated its facility. Plaintiffs failed to demonstrate such a material increase in risk.
For the plaintiff to make a claim against the defendant facility, he would have to prove that facility materially increased the risks over that of a normal sky-diving facility. Again, the plaintiff failed to prove that or provide enough evidence to proceed with his claims.
There was absolutely no evidence presented that Freefall failed to supervise the divers on the day of plaintiff’s accident. The record established that the loading of the aircraft, its operation, and the jumps themselves, were uneventful. Nothing suggests that Freefall personnel knew or should have known that plaintiff, or any other diver, was in peril because of the conduct of other participants. Moreover, Freefall had no way of controlling plaintiff’s, Johnson’s, or any other jumper’s maneuvering of their parachute canopies during the descent. Both plaintiff and Johnson were trained and licensed sky-divers. It is undisputed that once airborne, it was their duty alone to proceed with due care.
Plaintiff also claimed the landing zone of the defendant facility was not in accordance with regulatory minimums; however, he never stated what those minimums were or how the defendant’s facility failed to meet those minimums.
The appellate court upheld the dismissal of the plaintiff’s claims.
We conclude that the recklessness standard applied to Johnson and the ordinary negligence standard applied to Freefall, and, based on the evidentiary material submitted, summary judgment was properly granted to all defendants.
The court then looked at the indemnification provisions in the release which the court called “fee shifting provisions.”
The court looked at how other states had handled fee shifting provisions in sky-diving cases. New Jersey had not looked at the issue in skydiving, but had examined the issue in other cases, which had found the provisions were void.
The court reiterated that the plaintiff’s claim had been dismissed based on the plaintiff’s failure to present a prima facie case, not based on the release. The fee shifting provisions were part of the release. Under New Jersey law, “that sound judicial administration is best advanced if litigants bear their own counsel fees.” Even when fee shifting provisions are allowed, they will be strictly construed.
Essentially, the fee-shifting clause in Freefall’s release/waiver may be construed as an indemnification agreement, whereby plaintiff has agreed to pay counsel fees incurred by Freefall in defending plaintiffs’ suit, even if the cause of plaintiff’s injuries was Freefall’s own negligence. Such agreements, of course, must also be strictly construed against the indemnitee.
Reviewing construction law and finding no recreational case law where a fee shifting provision had been upheld the court determined the provisions were void as a violation of public policy.
Against this backdrop, we conclude that the fee-shifting provision in Freefall’s agreement is void as against public policy. It obviously runs counter to our strong policy disfavoring fee shifting of attorneys’ fees.
The deterrent effect of enforcing such a fee-shifting agreement offends our strong policy favoring an injured party’s right to seek compensation when it is alleged that the injury was caused by the tortious conduct of another.
The court also justified its decision by saying that because skydiving was regulated boy by the FAA and the New Jersey Department of Transportation it would be wrong to allow recovery of attorney fees by the defendant when the plaintiff argued the regulations had been violated, Even though the plaintiff’s arguments had no proof.
The defendant also attempted to argue the plaintiff’s complaint was frivolous which under a New Jersey statute would have allowed the defendant to recover their attorney fees defending a frivolous claim. However, the court found there were enough bases in the plaintiff’s complaint that it did not meet the frivolous claim threshold.
So Now What?
As stated in several other cases, indemnification clauses, even when well written, as you might assume from a five-page release, rarely result in recovery of attorney fees.
This also shows that the length of the release is not a deterrent, whether the release is effective in some court. Some people balk at a release over one page. However, when stopping a multi-million dollar claim a few pieces of paper are not a big issue.
Have your release written so that it protects you and all possible co-defendants and maybe includes a well-written indemnification clause.
What do you think? Leave a comment.
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