Moore v. Waller, et al., 930 A.2d 176; 2007 D.C. App. LEXIS 476
Richard J. Moore, Appellant, v. Terrell Waller and Square 345 Limited Partnership T/A Grand Hyatt Hotel, Appellees.
DISTRICT OF COLUMBIA COURT OF APPEALS
930 A.2d 176; 2007 D.C. App. LEXIS 476
June 20, 2006, Argued
August 2, 2007, Decided
PRIOR HISTORY: [**1]
Appeal from the Superior Court of the District of Columbia. (CA-1522-04). (Hon. Michael L. Rankin, Trial Judge).
COUNSEL: John P. Fatherree for appellant.
Terrell Waller, Pro se.
Rocco P. Porreco for appellee, Square 345 Limited Partnership.
JUDGES: Before GLICKMAN, KRAMER, and FISHER, Associate Judges.
OPINION BY: FISHER
[*177] FISHER, Associate Judge: Appellant Richard Moore claims that he was injured on February 26, 2001, while participating in a demonstration of kick boxing at Club Fitness, which is operated by the appellee, Square 345 Limited Partnership (hereinafter Grand Hyatt). Relying on a waiver and release of liability Moore signed when he joined the fitness center, the Superior Court granted summary judgment, first for Grand Hyatt and then for Terrell Waller, the instructor who allegedly injured Moore. We affirm.
Plaintiff Moore alleged that he had gone to the fitness center on February 26, 2001, to exercise. Although “he was not participating in the kick boxing classes, the instructor [*178] , defendant Waller, asked [Moore] to hold . . . a detached Everlast body bag, so [Mr.] Waller could demonstrate a kick to his class.” According to Mr. Moore, he “reluctantly agreed, saying to [Mr. Waller], ‘Not hard.’ Defendant [**2] Waller showed [Mr. Moore] how to hold the bag, braced against his body, and then kicked the bag five times, in rapid succession, with great force.” He claims that when Waller finished, “he was out of breath from the strenuous effort, and commented with obvious sarcasm and irony, ‘That wasn’t hard, was it.'” Moore states that he “immediately felt trauma to his body,” felt “stiff and achy” the next day, and consulted a physician about one month later. Mr. Moore asserts that “[h]e has been diagnosed as having torn ligaments and tendons from the trauma of the injury, and may have neurological damage, as well.” The resulting limitations on his physical activity allegedly have diminished the quality of his life in specified ways.
Mr. Moore had joined the fitness center on January 16, 2001, signing a membership agreement and initialing that portion of the agreement that purports to be a waiver and release of liability.
Article V – WAIVER AND LIABILITY
Section 1. The Member hereby acknowledges that attendance at or use of the Club or participation in any of the Club’s activities or programs by such Member, including without limitation, the use of the Club’s equipment and facilities, . . . exercises [**3] (including the use of the weights, cardiovascular equipment, and apparatus designed for exercising), [and] selection of exercise programs, methods, and types of equipment, . . . could cause injury to the Member or damage to the Member’s personal property. As a material consideration for the Club to enter into this Agreement, to grant membership privileges hereunder and to permit the Member and the Member’s guests to use the Club and its facilities, the Member, on its own behalf and on behalf of the Member’s guests, agrees to assume any and all liabilities associated with the personal injury, death, property loss or other damages which may result from or arise out of attendance at or use of the Club or participation in any of the Club’s programs or activities, notwithstanding any consultation on any exercise programs which may be provided by employees of the Club.
By signing this Agreement, the Member understands that the foregoing waiver of liability on its behalf and on the behalf of the Member’s guests will apply to any and all claims against the Club and/or its owners, shareholders, officers, directors, employees, agents or affiliates . . . for any such claims, demands, personal [**4] injuries, costs, property loss or other damages resulting from or arising out of any of foregoing risks at the Club, the condominium or the associated premises.
The Member hereby, on behalf of itself and the Member’s heirs, executors, administrators, guests and assigns, fully and forever releases and discharges the Club and the Club affiliates, and each of them, from any and all claims, damages, demands, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated resulting from or arising out of the attendance at or use of the Club or their participation in any of the Club’s activities or programs by such Member, including those which arise out of the negligence of the Club and/or the Club and the Club affiliates from any and all liability for any loss, or theft of, or damage to personal property, including, without limitation, automobiles and the contents of lockers.
[*179] THE MEMBER, BY INITIALING BELOW, ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS WAIVER AND RELEASE AND FULLY UNDERSTANDS THAT IT IS A WAIVER AND RELEASE OF LIABILITY, AND ASSUMES THE RESPONSIBILITY TO INFORM HIS/HER GUESTS OF THE PROVISIONS OF THIS AGREEMENT.
If effective, [**5] this provision waives and releases not only claims against the Club but also claims against its “employees [and] agents.” 1
1 We assume for purposes of analysis that the Grand Hyatt is responsible for the conduct of Mr. Waller at issue here, but we need not determine whether he was an employee or an independent contractor.
Ruling on Grand Hyatt’s motion for summary judgment, the trial court concluded:
The Waiver and Liability section of the contract . . . expresses a full and complete release of all liability for personal injury occurring in the fitness center. Moore signed an acknowledgment indicating that [he] had read and understood that he was releasing Grand Hyatt from all liability for personal injuries that he might sustain. Furthermore, there is no allegation of fraud or overreaching in the amended complaint. In the circumstances, the court finds that the waiver and release is valid and enforceable and is a complete defense for Grand Hyatt in this action.
The court later held “that the terms of the waiver . . . apply equally to defendant Terrell Waller….”
This court has not often addressed the validity of exculpatory clauses in contracts. We have enforced them, however. For [**6] example, “[i]t is well settled in this jurisdiction that a provision in a bailment contract limiting the bailee’s liability will be upheld in the absence of gross negligence, willful act, or fraud.” Houston v. Security Storage Co., 474 A.2d 143, 144 (D.C. 1984). Accord, Julius Garfinckel & Co. v. Firemen’s Insurance Co., 288 A.2d 662, 665 (D.C. 1972) (“gross negligence or willful misconduct”); Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944) (“a bailee may limit his liability except for gross negligence”). We recently considered such a clause contained in a home inspection contract and concluded that it would be sufficient to waive or limit liability for negligence. Carleton v. Winter, 901 A.2d 174, 181-82 (D.C. 2006). However, after surveying “leading authorities” and cases from other jurisdictions, we recognized that “courts have not generally enforced exculpatory clauses to the extent that they limited a party’s liability for gross negligence, recklessness or intentional torts.” Id. at 181. See also Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (Md. 1994) ( [HN1] “a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e., reckless, [**7] wanton, or gross”); Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631, 638 (Md. Ct. Spec. App. 2000) (exculpatory clause will not be enforced “when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence”). In Carleton, the court remanded for further proceedings to determine whether the conduct of the defendants “was not just simple negligence, but rather gross negligence.” 901 A.2d at 182.
As Moore’s counsel conceded at oral argument, he does not claim that Waller intentionally or purposefully injured [*180] him. The complaint does allege reckless conduct, however, 2 and he argued to the trial court, as he does to us, that the fitness center could not exempt itself from liability for reckless or wanton behavior or gross negligence. Nevertheless, the defendants had moved for summary judgment, and [HN2] “[m]ere conclusory allegations on the part of the non-moving party are insufficient to stave off the entry of summary judgment.” Musa v. Continental Insurance Co., 644 A.2d 999, 1002 (D.C. 1994); see also Super. Ct. Civ. R. 56 (e) (“the . . . response, by affidavits or as otherwise provided in this Rule, must set forth specific [**8] facts showing that there is a genuine issue for trial”). “‘[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'” Brown v. George Washington Univ., 802 A.2d 382, 385 (D.C. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). “‘The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].'” LaPrade v. Rosinsky, 882 A.2d 192, 196 (D.C. 2005) (quoting Liberty Lobby, 477 U.S. at 252).
2 In his second amended complaint, Moore alleged that “defendant Waller recklessly disregarded [his] duty of due care [and] acted with deliberate indifference to the likelihood that his action would injure the plaintiff. Defendant Waller’s reckless action was the direct and proximate cause of plaintiff’s injuries.” He also alleged that the Grand Hyatt was responsible for Waller’s actions.
Nothing Moore presented in opposition to summary judgment would be sufficient to prove gross negligence or reckless conduct. Indeed, in one of his affidavits Mr. Moore stated that “as I was shown by defendant [**9] Waller exactly how to hold the body bag while he demonstrated his kick(s), the purpose of his directions as communicated to me as to how to hold the bag were plainly for safety.” Such concern for safety is inconsistent with recklessness or gross negligence. See generally In re Romansky, 825 A.2d 311, 316 (D.C. 2003) (defining “recklessness”); District of Columbia v. Walker, 689 A.2d 40, 44 (D.C. 1997) (defining “gross negligence” for purposes of D.C. Code § 2-412 (2001) (formerly D.C.Code § 1-1212 (1981)). Moreover, Moore did not allege that defendant Waller kicked an unprotected portion of his body. Nor did he proffer expert testimony suggesting that the demonstration was so hazardous that it was reckless to undertake it, even with the protection of the Everlast body bag.
Because there is no viable claim for gross negligence, recklessness, or an intentional tort, we turn to the question of whether this particular contractual provision is sufficient to bar claims for negligence. 3 Although this is a suit for personal [*181] injury, not merely for economic damage, the same principles of law apply. See Wright v. Sony Pictures Entertainment, Inc., 394 F. Supp. 2d 27, 34 (D.D.C. 2005) (“by voluntarily [**10] signing the Contestant Release Form, plaintiff waived his right to bring any claims for negligently caused personal injury”; applying District of Columbia law). This court has not previously considered the effect of an exculpatory clause in a membership agreement with a health club or fitness center, but many jurisdictions have done so. After surveying the legal landscape, the Maryland Court of Special Appeals concluded that most courts hold “that [HN3] health clubs, in their membership agreements, may limit their liability for future negligence if they do so unambiguously.” Seigneur, 752 A.2d at 636. We have found the analysis in Seigneur to be very helpful.
3 Appellant’s brief explains that he “claims damages from Waller based upon negligent infliction of injury, and against Square 345 Limited Partnership based upon respondeat superior and upon apparent agency and authority, as well as negligent failure to properly select, train and supervise a person whose services were retained to provide lessons in an activity which would certainly be dangerous if not expertly and responsibly performed.” He later elaborates: “While kick boxing is an inherently dangerous activity, had the demonstration [**11] been conducted in a responsible, non-negligent way, it would not have been dangerous.” The words “strict liability” appear under the caption of the second amended complaint, but appellant has not cited any statute or regulation that purports to impose strict liability on demonstrations of kick boxing, nor has he alleged the common law elements of strict liability in tort. See Word v. Potomac Electric Power Co., 742 A.2d 452, 459 (D.C. 1999). Neither has he proffered facts which would support such a theory. In sum, the waiver is sufficient to cover any theory of liability which is supported by more than conclusory allegations.
[HN4] A fundamental requirement of any exculpatory provision is that it be clear and unambiguous. Maiatico v. Hot Shoppes, Inc., 109 U.S. App. D.C. 310, 312, 287 F.2d 349, 351 (1961) (“exculpation must be spelled out with such clarity that the intent to negate the usual consequences of tortious conduct is made plain”; also recognizing that in most circumstances modern law “permit[s] a person to exculpate himself by contract from the legal consequences of his negligence”). Cf. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298, 305 (Md. 1996) (“Because it does not clearly, [**12] unequivocally, specifically, and unmistakably express the parties’ intention to exculpate the respondent from liability resulting from its own negligence, the clause is insufficient for that purpose.”). The provision at issue here meets the requirement of clarity. Article V is entitled, in capital letters, “WAIVER AND LIABILITY.” The Article ends with a prominent “box” containing a sentence typed in capital letters. Appellant Moore initialed that box, verifying that he had “carefully read this waiver and release and fully understands that it is a waiver and release of liability . . . .” By accepting the terms of membership, Moore “agree[d] to assume any and all liabilities associated with the personal injury, death, property loss or other damages which may result from or arise out of attendance at or use of the Club or participation in any of the Club’s programs or activities . . . .” He understood that this waiver of liability would “apply to any and all claims against the Club and/or its owners, shareholders, officers, directors, employees, agents or affiliates . . . for any . . . personal injuries . . . resulting from or arising out of any of [the] foregoing risks at the Club . [**13] . . .” He “release[d] and discharge[d] the Club . . . from any and all claims, damages, demands, rights of action or causes of action…, including those which arise out of the negligence of the Club . . . .” This release is conspicuous and unambiguous, and it is clearly recognizable as a release from liability. Moreover, the injuries alleged here were reasonably within the contemplation of the parties. “Because [HN5] the parties expressed a clear intention to release liability and because that release clearly included liability for negligence, that intention should be enforced.” Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 801 (Minn. Ct. App. 2006) (health and fitness club). 4
4 Because this waiver expressly refers to “claims . . . which arise out of the negligence of the Club,” its effect is clear. We have held, however, that it is not always necessary to use the word “negligence” in order to relieve a party of liability for such conduct. See Princemont Construction Corp. v. Baltimore & Ohio R.R. Co. 131 A.2d 877, 878 (D.C. 1957) (“the terms of an indemnity agreement may be so broad and comprehensive that although it contains no express stipulation indemnifying against a party’s [**14] own negligence, it accomplishes the same purpose”); see also Avant v. Community Hospital, 826 N.E.2d 7, 12 (Ind. Ct. App. 2005)( [HN6] “an exculpatory clause need not include the word ‘negligence’ so long as it conveys the concept specifically and explicitly through other language”).
[*182] Appellant protests that the waiver provisions are so broad that they could be construed to exempt the Club from liability for harm caused by intentional torts or by reckless or grossly negligent conduct. Because such provisions are unenforceable, he argues that the entire release is invalid. We disagree. “‘A better interpretation of the law is that [HN7] any “term” in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire [contract].'” Anderson, 712 N.W.2d at 801 (quoting Wolfgang v. Mid-American Motorsports, Inc., 898 F. Supp. 783, 788 (D. Kan. 1995) (which in turn quotes RESTATEMENT (SECOND) OF CONTRACTS § 195(1) (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.” (emphasis added))). See Ellis v. James V. Hurson Associates, Inc., 565 A.2d 615, 617 (D.C. 1989) [**15] (“The Restatement sets forth the relevant principles. Where less than all of an agreement is unenforceable on public policy grounds, a court may nevertheless enforce the rest of the agreement ‘in favor of a party who did not engage in serious misconduct.'” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 184(1) (1981))).
Nor is Article V (the waiver and release) unenforceable due to unequal bargaining power, as Mr. Moore asserts. We do not suppose that the parties in fact had equal power, but Moore does not meet the criteria for invalidating a contract on the grounds he invokes. He does not invite our attention to any evidence that he objected to the waiver provision or attempted to bargain for different terms. Nor has he shown that the contract involved a necessary service.
[HN8] Even though a contract is on a printed form and offered on a “take it or leave it” basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.
Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 924-25 (Minn. 1982) (emphasis in [**16] original). “Health clubs do not provide essential services[,]” Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (Wash. Ct. App. 1995), and “[t]he Washington metropolitan area . . . is home to many exercise and fitness clubs.” Seigneur, 752 A.2d at 639 (rejecting argument that patron’s bargaining position was grossly disproportionate to that of the fitness club).
We, of course, would not enforce such a release if doing so would be against public policy. See Godette v. Estate of Cox, 592 A.2d 1028, 1034 (D.C. 1991) ( [HN9] “An exculpatory clause [in a will] that excuses self-dealing [by the personal representative] or attempts to limit liability for breaches of duty committed in bad faith, intentionally, or with reckless indifference to the interest of the beneficiary, is generally considered to be against public policy.”); George Washington Univ. v. Weintraub, 458 A.2d 43, 47 (D.C. 1983) (exculpatory clause in lease was ineffective to waive tenants’ rights under implied warranty of habitability); see also Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 526 (Md. 1994) (public policy will not permit exculpatory agreements in certain transactions affecting the performance of a public service obligation or “so important [*183] [**17] to the public good that an exculpatory clause would be patently offensive”). However, we agree with the Maryland Court of Special Appeals and with numerous other courts which have held that it does not violate public policy to enforce exculpatory clauses contained in membership contracts of health clubs and fitness centers. Seigneur, 752 A.2d at 640-41 (and cases cited therein); see also, e.g., Schlobohm, 326 N.W.2d at 926 (“the exculpatory clause in the contract before us was not against the public interest”); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 927, 220 N.Y.S.2d 962 (N.Y. 1961) (“there is no special legal relationship and no overriding public interest which demand that this contract provision, voluntarily entered into by competent parties, should be rendered ineffectual”); Massengill v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132 (Wyo. 2000). 5
5 The Supreme Court of Wisconsin refused to enforce one such clause on grounds of public policy. Atkins v. Swimwest Family Fitness Center, 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334 (Wis. 2005). That decision was based on several factors, however, and we do not understand the court to have announced a categorical rule. See id. at 340-42 (waiver was “overly broad [**18] and all-inclusive,” the word “negligence” was not included, the provision was not “sufficiently highlight[ed],” and there was “no opportunity to bargain”).
The trial court properly held that “the waiver and release is valid and enforceable and is a complete defense for Grand Hyatt [and Mr. Waller] in this action.” The judgment of the Superior Court is hereby
Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198
David Alvarez and Elena Alvarez, Plaintiff-Appellants, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe, Defendant. David Alvarez and Elena Alvarez, Plaintiff-Appellees, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellant, Jane Doe, Defendant.
No. 328221, No. 328985
COURT OF APPEALS OF MICHIGAN
2016 Mich. App. LEXIS 2198
November 29, 2016, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: [*1] Oakland Circuit Court. LC No. 2014-140282-NO. Oakland Circuit Court. LC No. 2014-140282-NO.
CORE TERMS: harness, climbing, gross negligence, rock, climb, belay, incorrectly, backwards, walked, deposition testimony, loop, red, putting, front, genuine issue, material fact, reasonable minds, precautions, favorable, watched, donned, order granting, rock climbing, grossly negligent, adjacent, facing, matter of law, conduct constituted, ordinary negligence, evidence submitted
JUDGES: Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.
In Docket No. 328221, plaintiffs, David Alvarez and his wife Elena Alvarez, appeal as of right the trial court’s order granting summary disposition in favor of defendant, LTF Club Operations Company, Inc., doing business as Lifetime Fitness Center (Lifetime). In Docket No. 328985, Lifetime appeals as of right the order denying its request for case evaluation sanctions and for taxation of costs. For the reasons stated herein, we reverse the trial court’s order granting defendant’s motion for summary disposition and remand for further proceedings.
This litigation arises from David’s fall from a rock climbing wall at Lifetime’s facility in Novi. Plaintiffs were at Lifetime, where they are members, with their minor daughter to allow her the opportunity to use the rock climbing wall. Neither the plaintiffs, nor their daughter, had previously attempted to use the rock climbing wall. After David signed the requisite forms, Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, [*2] and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.
Plaintiffs argued that, as an employee of Lifetime, Agredano was grossly negligent1 in failing to ascertain whether David had properly attached his harness and the belay system before permitting him to climb the rock wall or descend. Defendant filed a motion for summary disposition arguing the assumption of risk and waiver of liability provision within the paperwork David signed barred plaintiffs’ claims because Agredano’s asserted conduct constituted only ordinary negligence and not gross negligence. The trial court granted defendant’s motion for summary disposition finding plaintiffs failed to “present any evidence establishing that defendant was grossly negligent in failing to take precautions for plaintiff’s safety.”
1 Plaintiffs had signed a waiver of any negligence based liability.
Plaintiffs assert that the trial court erred in dismissing their claim of gross negligence against Lifetime, arguing a genuine issue of material fact exists regarding whether Agredano [*3] was grossly negligent. We agree.
The trial court granted summary disposition in accordance with MCR 2.116(C)(7) and (10). This Court reviews “de novo a trial court’s ruling on a motion for summary disposition.” In re Mardigian Estate, 312 Mich App 553, 557; 879 NW2d 313 (2015). Specifically:
When considering a motion for summary disposition under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable to the party opposing the motion. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the evidence submitted might permit inferences contrary to the facts as asserted by the movant. When entertaining a summary disposition motion under Subrule (C)(10), the court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and refrain from making credibility determinations or weighing the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 444-445; 865 NW2d 648 (2014) (quotation marks omitted).]
In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other [*4] documentary evidence and construe them in the plaintiff’s favor. Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of limitations is a question of law that this Court reviews de novo. [Terrace Land Dev Corp v Seeligson & Jordan, 250 Mich App 452, 455; 647 NW2d 524 (2002) (citation omitted).]
To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations omitted). “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010). “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” Id. “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]” Id.
As [*5] evidence of Agredano’s gross negligence, plaintiffs offered their deposition testimony. In his deposition testimony, David indicated that Agredano provided him with a harness and was present as he put it on and prepared to climb the wall:
- Q. And where was [Agredano] when you were placing the harness on yourself?
- A. She was in front of us. We were here. She was in front of us.
- Q. So she’s staring directly at your as you’re putting the harness on?
- A. She was, yeah, in front of us. We were here, and she was — I mean, we could show the picture if you want.
- Q. But I want to know if she was facing you when you were putting this harness on?
- A. Yes.
* * *
- Q. How much time elapsed between the time that you had your harness on and began climbing from the time when your wife began climbing?
- A. Okay. So they walked over to the wall, and then, as soon as I put on my harness, I walked over to the wall adjacent to [Agredano], and I watched my wife. She was already up the So whatever time it took for her to get up the eight feet, which is probably a couple minutes. I mean, a minute maybe.
- Q. All right. And when you walked over to the wall, was [Agredano] standing to your right?
- A. When I walked over to [*6] the wall, she was on my right.
- Q. And would you say she was within three or four feet of you?
- A. I could touch her. She was right there.
Further, David stated that Agredano spoke to him after he had inadvertently placed the harness on backwards and directed him to a climbing area, but did not warn him that the red loop on his harness should be on his front before he began to climb the wall:
- Q. When were you told to hook into something between your legs?
- A. Sure. So I had trouble putting on the harness, right? They walked over to the I followed . . . . I was next to — adjacent to [Agredano] . . . . As my wife started to come down [the rock wall], I asked — I asked, where should I go climb? [Agredano] pointed me over to the other adjacent valet or belay.
- Q. Belay
- A. Belay. Then somewhere between there I asked — or I don’t know if I asked, but she said, Hook it between your legs. . . .
David also stated that Agredano was present in the climbing wall area during the whole incident and watched him climb the rock wall while wearing the harness incorrectly:
- Q. And was [Agredano] facing you when you began climbing?
- A. She was facing both of us.
* * *
- Q. What I want to know is were [sic] you and [*7] your wife on the climbing, and she was behind you looking at the two of you?
- A. Yeah. She was looking at both of us.
* * *
- Q. Was there any point in time, while you were putting on your harness or after you put on your harness, where [Agredano] was inside the wall, through this door?
- A. No.
- Q. So she was outside in the climbing wall area with you the entire time?
- A. Correct.
In Elena’s deposition testimony, she testified that Agredano also spoke to David after he reached the top of the rock wall, gave him instructions regarding how to descend, and instructed David to let go of the wall despite his incorrectly worn harness:
- Q. What happened at that point?
- A. And he said — he asked her twice how to go down. And he asked her two times, because I remember, like, why he’s asking her? . . . So then, when he asked her two times, she said, just let go, and it will bring you down, the automatically thing will bring you down. And she said, I think, you know, push, let go. She said, just let go. Just let go. . . .
While Agredano claimed that she was not in the room when David incorrectly donned his harness and ascended the wall, we must consider the evidence in the light most favorable to plaintiffs and [*8] accept their testimony as true. Terrace Land Dev Corp, 250 Mich App at 455. David and Elena’s deposition testimony was that Agredano was present when David donned his harness and ascended the wall, that she had ample opportunity to determine that David had put his harness on incorrectly, but that she failed to correct his mistake. Further, plaintiffs testified that Agredano watched David climb the wall in an unsafe harness, and directed David to let go of the wall to repel back down to the ground despite the red loop on David’s harness indicating that his harness was on backwards. Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication2 that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness. Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign [*9] that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” David. Tarlea, 263 Mich App at 90. Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence. Thus, the trial court erred in granting defendant’s motion for summary disposition.
2 Agredano testified that if someone was standing below a rock climber, that person would be readily able to see if a harness was on backwards.
Because we have concluded that the trial court erred in granting summary disposition to defendant, it is unnecessary for us to address in Docket No. 328985 whether the decision to deny the case evaluation award would otherwise have been appropriate if the grant of summary disposition had been proper.
We reverse the order granting defendant’s motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Stephen L. Borrello
New Hampshire does not recognize more than one type of negligence, simple or ordinary negligence. Claims for gross negligence, say to void a release, do not exist.Posted: February 6, 2017
Supreme Court outlines requirements for releases. to be successful including public policy and failure to read the release requirements.
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: John E. and Virginia A. Barnes
Defendant: New Hampshire Karting Association (NHKA), David E. Whitesell, Midway Raceway, Inc. d/b/a Bryar Motorsport Park (Bryar), the World Karting Association (WKA) and International Insurance Company (International)
Plaintiff Claims: negligence and gross negligence
Defendant Defenses: release
Holding: for the defendant
The plaintiff went to a go kart event. He signed a pit pass which contained a release. While driving he hit another kart on the track that was disabled. There was no indication or warning of the disabled go-kart before the plaintiff hit it.
The plaintiff sued for ordinary and gross negligence. The lower court dismissed the plaintiff’s claims, and the plaintiff appealed.
New Hampshire has three courts; however, the lower two, Circuit and Superior handle different matters. Both the Circuit court and the Superior courts are trial courts so any appeal is to the New Hampshire Supreme Court.
Analysis: making sense of the law based upon these facts.
The plaintiff claimed the release was barred by public policy; the release was ambiguous and did not apply to the risks, not inherent in the sport. The plaintiff also argued the release did not cover gross negligence.
The New Hampshire Supreme Court first looked at releases in New Hampshire.
Exculpatory agreements call into conflict two tenets of the law. First, a party should be liable for the consequences of the negligent breach of a duty owed another. As this court stated in a recent case involving an amusement ride accident, the owner of a place of public amusement “must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent individual.” Failure to do so will result in liability for injuries proximately caused by the breach of duty.
However, parties may eliminate tort liability by contract.
Contraposed against this basic rule of tort law is the principle that, as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs. Under this rule, parties may bargain for various levels of risk and benefit as they see fit. Thus, a plaintiff may agree in advance that the defendant has no legal duty toward him and thereby assume the risk of injury arising from the defendant’s conduct.
Under New Hampshire law, a defendant must show the release does not contravene public policy, that no special relationship existed between the parties and there was no disparity of bargaining power.
A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power. Where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service, the defendant cannot by contract rid itself of its obligation of reasonable care.
Public policy, not identified as such, is held to include common carriers, innkeepers and public utilities. A go-kart operation is not a commercial transport for hire, a place to sleep or a public utility providing gas, electricity or such.
Disparity in bargaining power occurs when the defendant is a monopoly or where the plaintiff has no alternative but to deal with the defendant. “Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract; accordingly, courts refuse to enforce the agreement.”
Again, a go-kart facility is not a necessity such that the plaintiff had to negotiate for its life or substance.
Once the public policy argument is out of the way, the issue then becomes whether the plaintiff understood the basics of the agreement.
Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision. Furthermore, the plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement.
This contemplation must not cover the exact issues the plaintiff complains about, but covers a broad range of accidents or injuries the plaintiff may suffer.
Contracts are generally construed against the writer, in the case of a release, construed against the defendant.
…the contract must clearly state that the defendant is not responsible for the consequences of his negligence. As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.
The plaintiff argued he did not read the entire release; however, that does not invalidate the release. The court found he could have if he wanted, therefore, his argument failed based on his own actions.
There was no evidence, however, that Barnes was denied the opportunity to read the body of the release. “[H]aving failed to avail himself of that opportunity, yet gaining the admission to which his signature was a condition precedent, he cannot now complain that he had no notice of the import of the paper . . . he signed.”
Summing up the public policy argument made by the plaintiff failed as stated by the court
With these principles in mind, we now consider whether the release bars the plaintiff’s claims in this case. The first question is whether the release is contrary to public policy. The defendants do not fall within any of the commonly-recognized classes of persons charged with a duty of public service. The record indicates that the 1981 Enduro kart races at Bryar were organized by the NHKA, which is associated with the WKA and which manages its races in accordance with WKA rules and regulations. Although the defendants serve a segment of the public, we cannot say that Enduro kart racing is affected with a public interest. Provision of racing facilities is not a service of great importance to the public, nor is racing a matter of practical necessity.
Moreover, there was no substantial disparity in bargaining power among the parties, despite the fact that Barnes was required to sign the release in order to use the racetrack. The plaintiff was under no physical or economic compulsion to sign the release. Since the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength over Barnes or others who sought to participate in Enduro kart racing.
Thus the release was not barred by public policy arguments in New Hampshire.
The plaintiff then argued that the actions against the defendant were grossly negligent and cited cases from other jurisdictions to support its claim. The court simply stated:
These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. “[T]he doctrine of definitive degrees of negligence is not recognized as a part of our common law.
There is only one claim in New Hampshire for negligence no matter egregious the defendants’ actions.
The plaintiff then argued the release was only valid for a restricted area of the facility. However, applying the common meaning to the language in the release the court found the language covered the area where the accident occurred.
We find that participation in practice laps on the racing surface comes within the terms of the release. The restricted areas are defined in terms of physical spaces, not in terms of function, and the reference to “enter[ing] for any purpose” contemplates that the racing surface is a restricted area during practice runs and during the actual race. Although the plaintiff testified that he had practiced on occasion without signing a release, he signed the release prior to taking a practice lap on the day in question. One can contemplate that racers are exposed to a variety of hazards while in the racing arena regardless of whether the actual race is taking place. We believe that the practice run taken by Barnes in preparation for the race later that day may reasonably be construed as part of “participat[ion] in the event.” We therefore uphold the master’s conclusion that the language of the agreement was not ambiguous and that the release applied to practice laps.
A final argument was made that the release was an “illegal tying arrangement.” Meaning the release and the insurance coverage were illegally tied together the plaintiff could not take one without taking the other. The court found this was not the case because no evidence was presented that insurance was a separate charge after admissions.
The trial court decision was affirmed.
So Now What?
New Hampshire law is fairly standard on how it looks at release law, even though the particular language used might vary. What is significant is the Supreme Court has held that New Hampshire does not recognize gross negligence.
Not being able to plead gross negligence limits the ability of the plaintiff to void a release or argue for greater damages. Normally a jury finding the defendant acted grossly negligent includes greater damages, sometimes punitive damages.
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185 Mile Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiffPosted: December 5, 2016
Decision clearly sets forth the requirements for the plaintiff to prove her claims which she failed to do.
State: Washington, Court of Appeals of Washington, Division Three
Plaintiff: Robin Johnson and Craig Johnson
Defendant: Spokane to Sandpoint, LLC, et al.
Plaintiff Claims: Negligence & Gross Negligence
Defendant Defenses: Release
Holding: for the defendant
The plaintiff, an attorney signed up for the Spokane to Sandpoint race. The race is a team race run over two days and nights. The race is 185 miles long and an open course, meaning there is traffic on the course.
Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and night. The course is open, meaning it is not closed to public traffic.
The racers sign up online and sign an electronic release. The racers also receive a race handbook. The handbook explains the race and includes sections on crossing roads, highways and train tracks.
The plaintiff was crossing a highway, and she was hit by a car. The driver of the car stated the plaintiff walked out in front of her without looking. The plaintiff settled with the driver before this appeal.
As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. Ac-cording to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.
The defendant filed a motion for summary judgment, which was granted and this appeal followed.
Analysis: making sense of the law based on these facts.
The appellate court first looked at the requirements for the plaintiff to survive and proceed to trial.
To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one party is under no obligation of care to the other, and shall not be held liable for ordinary negligence.
The court then looked at the requirements for releases to be valid under Washington’s law. (Of note, the court calls the exculpatory clause a waiver clause. However, the court refers to the agreement as a release.)
The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.
Under Washington’s law, releases are valid, unless they violate public policy. There are six different factors identified as attributable to public policy in Washington.
Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents.
The court then went through all six factors and eliminated them all in one paragraph.
First, 185-mile relay races are not regulated; second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.
Generally, Washington law looks at whether the issues that identify a public policy issue are those that affect the majority of the public in Washington. The court also found that other Washington decisions have found that recreational activities were not a public interest.
The second issue was the plaintiff’s claim the defendant was grossly negligent. Like most states, a release in Washington will not stop a claim for gross negligence. Gross negligence is greater than ordinary negligence and is care appreciably less than care required in an ordinary negligence claim.
“Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.
The court then went through the facts and found that nothing required the defendant to do more than what the defendant did. Consequently, since there was no duty to do more, there was no breach of a duty, let alone acts, which were substantially below the duty.
The final argument the plaintiff argued was the release was ambiguous and not conspicuous. Here again, Washington’s law set forth the requirements for ambiguous and conspicuous quite clearly.
Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver.
The requirements basically require the release to be seen by the signor and not hidden. The exculpatory provisions must be evident, conspicuous and not hidden. The language must stand out so it is easily recognized with capital letters and/or bold type and there must be a signature line below the exculpatory provisions so that you can see your signature is related to the exculpatory provisions.
In this case, the release provisions were found not to be ambiguous. Additionally, the plaintiff admitted in her deposition that she understood from a legal perspective that the release would release her from claiming damages for any injuries.
The appellate court agreed with the trial court and affirmed the decision.
So Now What?
This decision is refreshing because it clearly sets out the requirements needed to prove a release valid and invalid. The definition of gross negligence also easily defined to that you can understand your duties and a substantial breach of your duties leading to a gross negligence claim.
Also of note, which the court pointed out was the information provided to the plaintiff and other racers in the racer handbook. Although not an express assumption of risk agreement, the handbook was still proof, the plaintiff assumed the risk, even though that issue was not argued. The risks of the race were set forth as well as the steps taken by the defendant to protect the runners in the handbook.
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Chancy M. Elliott, Administrator of the Estate of Caleb Mckinley Smith, Deceased v. Trevor Carter
Record No. 160224
SUPREME COURT OF VIRGINIA
October 27, 2016, Decided
PRIOR HISTORY: [*1] FROM THE CIRCUIT COURT OF RICHMOND COUNTY. Harry T. Taliaferro, III, Judge.
Elliott v. Carter, 2016 Va. LEXIS 49 (Va., Apr. 12, 2016)
COUNSEL: David R. Simonsen, Jr. (Keith B. Marcus; ParisBlank, on briefs), for appellant.
W.F. Drewry Gallalee (Harold E. Johnson; Williams Mullen, on brief), for appellee.
JUDGES: OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.
OPINION BY: S. BERNARD GOODWYN
PRESENT: All the Justices.
OPINION BY JUSTICE S. BERNARD GOODWYN
In this appeal, we consider the evidence required to submit a question of gross negligence to a jury.
This matter arises from a wrongful death suit brought by Chancy M. Elliott (Elliott) on behalf of the estate of Caleb McKinley Smith (Caleb), alleging gross negligence on the part of Trevor Carter (Carter), the peer leader of Caleb’s Boy Scout troop, after Caleb drowned on a Scout camping trip. The material facts are not in dispute.
On June 25, 2011, Caleb was a 13-year-old Boy Scout on an overnight camping trip with his troop along the Rappahannock River near Sharps, Virginia. Carter, then 16 years old, was the Senior Patrol Leader, the troop’s peer leader. Caleb had been taking lessons to learn how to swim–he had had one from Carter that morning–but he could [*2] not yet swim.
At about 11:00 a.m., Carter led Caleb and two other Boy Scouts into the river along a partially submerged sandbar. One of the other two Scouts could swim (Scott), and the other could not (Elijah).
When they were approximately 150 yards into the river, Carter and Scott decided to swim back to shore. Carter told Caleb and Elijah to walk back to shore the way they had come, along the sandbar. As Caleb and Elijah walked back to shore along the sandbar, they both fell into deeper water. Caleb yelled to Carter for help and Carter attempted to swim back and rescue him. Although Elijah was rescued, neither Carter nor three adult Scout leaders, who attempted to assist, were able to save Caleb.
Elliott filed a wrongful death action in the Circuit Court of Richmond County against Carter, four adult Scout leaders, the Boy Scouts of America, and the affiliated Heart of Virginia Council, Inc. (collectively, Defendants), alleging that they had failed to adequately supervise Caleb. The court granted the Defendants’ demurrer asserting charitable immunity.
Elliott amended her complaint to allege both gross and willful and wanton negligence by Carter and gross negligence by the four adult Scout [*3] leaders, and demanded a jury trial.* Defendants filed a motion for summary judgment arguing that, based upon undisputed material facts, there was no gross negligence because there was no complete lack of care alleged and the danger of drowning was open and obvious. Defendants relied upon Elliott’s responses to requests for admission and allegations in the amended complaint in establishing the undisputed material facts.
* Elliott non-suited the actions against the Boy Scouts of America and the Heart of Virginia Council, Inc.
Following a hearing and supplemental briefing, the court granted the motion for summary judgment as to all Defendants. It found that, while the undisputed material facts would be sufficient to submit the question regarding a claim of simple negligence to a jury, the facts did not support a claim for gross negligence, because in Virginia, “there is not gross negligence as a matter of law where there is even the slightest bit of care regardless of how insufficient or ineffective it may have been,” and there was evidence that Carter did try to save Caleb.
Elliott appeals the ruling of the circuit court only as to Carter. On appeal, she argues that the circuit court erred [*4] in granting summary judgment and in concluding that, as a matter of law, a jury could not find Carter’s actions constituted gross negligence.
[HN1] “In an appeal from a circuit court’s decision to grant or deny summary judgment, this Court reviews the application of law to undisputed facts de novo.” St. Joe Co. v. Norfolk Redev’t & Hous. Auth., 283 Va. 403, 407, 722 S.E.2d 622, 625 (2012).
[HN2] Gross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487, 603 S.E.2d 916, 918 (2004).
It is a heedless and palpable violation of legal duty respecting the rights of others which amounts to the absence of slight diligence, or the want of even scant care. Several acts of negligence which separately may not amount to gross negligence, when combined may have a cumulative effect showing a form of reckless or total disregard for another’s safety. Deliberate conduct is important evidence on the question of gross negligence.
Chapman v. City of Virginia Beach, 252 Va. 186, 190, 475 S.E.2d 798, 800-01 (1996) (citations and internal quotation marks omitted). [HN3] Gross negligence “requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.” Cowan, 268 Va. at 487, 603 S.E.2d at 918; see also Thomas v. Snow, 162 Va. 654, 661, 174 S.E. 837, 839 (1934) (“Ordinary and gross negligence differ in degree of inattention”; [*5] while “[g]ross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence,” “it is something less than . . . willful, wanton, and reckless conduct.”).
[HN4] “Ordinarily, the question whether gross negligence has been established is a matter of fact to be decided by a jury. Nevertheless, when persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Because “the standard for gross negligence [in Virginia] is one of indifference, not inadequacy,” a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care. Kuykendall v. Young Life, 261 Fed. Appx. 480, 491 (4th Cir. 2008) (relying on Frazier, 234 Va. at 392, 362 S.E.2d at 690-91, Chapman, 252 Va. at 190, 475 S.E.2d at 801, and Cowan, 268 Va. at 486-87, 603 S.E.2d at 918 to interpret Virginia law); see, e.g., Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184, 189, 7 Va. Law Rep. 1368 (1991) (affirming the circuit court’s ruling that the plaintiff failed to establish a prima facie case of gross negligence when the evidence showed that the defendant “‘did exercise some degree of diligence and care’ and, therefore, as a matter of law, his acts could not show ‘utter disregard of prudence amounting to complete neglect of the safety of another'”).
Here, even viewing the evidence in the [*6] light most favorable to Elliott, the non-moving party, as required in considering a motion for summary judgment, Commercial Business Systems v. Bellsouth Services, 249 Va. 39, 41-42, 453 S.E.2d 261, 264 (1995), the undisputed material facts support the conclusion that Carter exercised some degree of care in supervising Caleb. Therefore, his conduct did not constitute gross negligence.
First, it is not alleged that Caleb had any difficulty walking out along the sandbar with Carter. Second, there is no allegation that Carter was aware of any hidden danger posed by the sandbar, the river or its current. Third, Carter instructed Caleb to walk back to shore along the same route he had taken out into the river, and there was no evidence that conditions changed such that doing so would have been different or more dangerous than initially walking out, which was done without difficulty. Finally, Carter tried to swim back and assist Caleb once Caleb slipped off the sandbar, which is indicative that Carter was close enough to attempt to render assistance when Caleb fell into the water, and that Carter did attempt to render such assistance. Thus, although Carter’s efforts may have been inadequate or ineffectual, they were not so insufficient as to constitute the indifference and utter disregard [*7] of prudence that would amount to a complete neglect for Caleb’s safety, which is required to establish gross negligence.
Because a claim of gross negligence must fail as a matter of law when there is evidence that the defendant exercised some degree of diligence and care, the circuit court did not err in finding that no reasonable jurist could find that Carter did nothing at all for Caleb’s care. As such, there was no question for the jury, and the circuit court properly granted Carter’s motion for summary judgment.
Accordingly, the judgment of the circuit court will be affirmed.
DISSENT BY: McCULLOUGH
JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.
Ordinarily, whether gross negligence has been established is a matter of fact to be decided by a jury. Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Of course, when “persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Id. In my view, the facts presented in this tragic case were sufficient to present a jury question. Accordingly, I respectfully dissent.
Here, Caleb could not swim, a fact that was known to the defendants. He did not walk out on his own into the river. Rather, he was [*8] led, without a life jacket or other safety equipment, over a partially submerged sandbar far into the river. The complaint alleges that “the Rappahannock River . . . is a major river with a strong current.” Caleb was then abandoned on a sandbar in the middle of the river and told to walk back. A partially submerged sandbar in the middle of a river with a strong current is a very dangerous place to be, particularly for a non-swimmer without a life vest. Ever-shifting sandbars, obviously, are not stable structures. They can easily dissipate. A major river with strong currents like the Rappahannock presents a different situation than a tranquil pond. Carter then swam away too far to effectuate a rescue should Caleb slip and fall into the river. In my view, “reasonable persons could differ upon whether the cumulative effect of these circumstances constitutes a form of recklessness or a total disregard of all precautions, an absence of diligence, or lack of even slight care.” Chapman v. City of Virginia Beach, 252 Va. 186, 191, 475 S.E.2d 798, 801 (1996).
I would also find that the purported acts of slight care, separated in time and place from the gross negligence at issue, do not take the issue away from the jury. The only two acts of slight care the defendants identify [*9] are the fact that Caleb was given a swimming lesson before he drowned — but there is no indication that Caleb could swim — and that Carter, after swimming too far away to make any rescue effectual, tried to swim back to save Caleb after he had fallen into the river. Significantly, Carter led Caleb into danger in the first place. When the defendant has led the plaintiff into danger, an ineffectual and doomed to fail rescue attempt does not in my judgment take away from the jury the question of gross negligence. Accordingly, I would reverse and remand the case for a trial by jury.
Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696Posted: November 2, 2016
Robin Johnson et al., Appellants, v. Spokane to Sandpoint, LLC, et al., Respondents.
COURT OF APPEALS OF WASHINGTON, DIVISION THREE
July 23, 2013, Filed
NOTICE: Order Granting Motion to Publish September 10, 2013.
SUBSEQUENT HISTORY: Reported at Johnson v. Spokane to Sandpoint, LLC, 175 Wn. App. 1054, 2013 Wash. App. LEXIS 1835 (2013)
Ordered published by Johnson v. Spokane to Sandpoint, LLC, 2013 Wash. App. LEXIS 2129 (Wash. Ct. App., Sept. 10, 2013)
PRIOR HISTORY: [***1]
Appeal from Spokane Superior Court. Docket No: 10-2-05387-0. Date filed: 07/09/2012. Judge signing: Honorable Gregory D Sypolt.
WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.
Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.
Superior Court: The Superior Court for Spokane County, No. 10-2-05387-0, Gregory D. Sypolt, J., on July 9, 2012, entered a summary judgment in favor of the race promoter.
Court of Appeals: Holding that a preinjury release and waiver signed by the runner precluded her recovering for ordinary negligence, the court affirms the judgment.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
 Negligence — Duty — Necessity. The threshold question in a negligence action is whether the defendant owed a duty of care to the plaintiff.
 Negligence — Duty — Question of Law or Fact — In General. For purposes of a negligence cause of action, the existence of a duty of care is a question of law.
 Torts — Limitation of Liability — Validity — In General. Subject to certain exceptions, parties may expressly agree in advance that one is under no obligation of care to the other and shall not be liable for ordinary negligence.
 Torts — Limitation of Liability — Purpose. The function of a contractual waiver of negligence liability is to deny an injured party the right to recover damages from the person negligently causing the injury.
 Torts — Limitation of Liability — Validity — Test. A contractual waiver of negligence liability is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for the protection of others, or (3) it is inconspicuous.
 Torts — Limitation of Liability — Validity — Public Policy — Factors. In determining whether an agreement exculpating a party from liability for its future conduct violates public policy, a court will consider whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or its agents.
 Torts — Limitation of Liability — Validity — Public Policy — Public Interest — Recreational Activities. For purposes of determining the validity of a liability release clause under a public policy analysis, Washington courts do not favor finding a public interest in adult recreational activities.
 Torts — Limitation of Liability — Applicability — Gross Negligence. A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. “Gross negligence” is negligence substantially and appreciably greater than ordinary negligence, i.e., care substantially or appreciably less than the quantum of care inhering in ordinary negligence, or a failure to exercise slight care. A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply substantial evidence that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, a plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.
 Negligence — Proof — Higher Standard — Summary Judgment — Prima Facie Case — Necessity. When the standard of proof in a negligence action is higher than ordinary negligence, in order to avoid an adverse summary judgment, a plaintiff must show that it can support its claim with prima facie proof supporting the higher level of proof.
 Torts — Limitation of Liability — Validity — Conspicuous Nature — Factors. The conspicuousness of a contractual liability waiver or release provision is determined by considering such factors as whether the provision is set apart or hidden within other provisions, whether the provision heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. Brown, J., delivered the opinion for a unanimous court.
COUNSEL: Martin A. Peltram, for appellants.
Thomas C. Stratton (of Rockey Stratton PS), for respondents.
JUDGES: Authored by Stephen M. Brown. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.
OPINION BY: Stephen M. Brown
[*455] [**530] ¶1 Brown, J. — Robin Johnson and Craig Johnson appeal the dismissal of their personal injury suit against Spokane to Sandpoint LLC after the trial court ruled the preinjury release and waiver Ms. Johnson signed precluded recovery. The Johnsons contend the release is unenforceable because it is ambiguous, offends public policy, and because Spokane to Sandpoint was grossly negligent. We disagree and affirm.
¶2 Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and [**531] night. The course is open, meaning it is not closed to public traffic.
¶3 When registering on line, the runners must electronically acknowledge a release of liability and waiver, which states:
I understand that by registering I have accepted and agreed to the waiver [***2] and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understood any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event.
[*456] Clerk’s Papers (CP) at 246. Ms. Johnson, an attorney, registered on line for the 2010 Spokane to Sandpoint race and acknowledged the above waiver, plus she agreed to “waive and release Spokane to Sandpoint … from any and all claims or liability of any kind arising out of my participation in this event, even though that liability may arise out negligence or carelessness on the part of persons on this waiver.” CP at 246. Ms. Johnson agreed she read the agreement carefully and understood the terms and she signed the agreement, “FREELY AND VOLUNTARILY, WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE” and that her signature was [***3] “TO SERVE AS CONFIRMATION OF MY COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS, CONDITIONS, AND PROVISIONS OF THIS AGREEMENT.” CP at 248.
¶4 Spokane to Sandpoint provided a race handbook to Ms. Johnson, explaining all facets of the race, including crossing public highways and train tracks. The fourth leg of the race crossed U.S. Route 2 at its intersection with Colbert Road. At that location, U.S. Route 2 is a divided highway that runs north and south. It has two lanes in each direction, separated by a median strip. A sign was posted on Colbert Road telling the runners “caution crossing highway.” CP at 128. Signs were posted along the race route informing drivers that runners were running along the race route roads.
¶5 As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. According to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.
¶6 The Johnsons sued Spokane [***4] to Sandpoint, Ms. Young, and Ms. Young’s parents. The Johnsons dismissed their [*457] claims against Ms. Young and her parents following a settlement.
¶7 During Ms. Johnson’s deposition, counsel for Spokane to Sandpoint asked her if she understood that the release she signed “would … release the entities for any personal injury that might occur to you during the activity?” CP at 138. Ms. Johnson replied, “Yes, I understand that from a legal perspective completely.” CP at 139. When questioned about the on line registration process, counsel asked:
Q. Do you recall whether you clicked yes to the waiver language at all on the registration process?
A. On the registration process I assume I must have clicked because all that information is there and I did it. Nobody else did it for me.
CP at 156.
¶8 Spokane to Sandpoint requested summary judgment dismissal, arguing the preinjury waiver and release agreed to by Ms. Johnson was conspicuous and not against public policy and the Johnsons lacked the evidence of gross negligence necessary to overcome the release. The trial court agreed and dismissed the Johnsons’ complaint.
¶9 The issue is whether the trial court erred in summarily dismissing the [**532] Johnsons’ [***5] negligence complaint. The Johnsons contend the release and waiver signed by Ms. Johnson prior to her injury was invalid and unenforceable because it was ambiguous and against public policy, and because Spokane to Sandpoint was grossly negligent.
¶10 [HN1] We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). [HN2] Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). Where different [*458] competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Dep’t of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).
[1-3] ¶11 [HN3] To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 339, 35 P.3d 383 (2001) (citing Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994)). Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one [***6] party is under no obligation of care to the other, and shall not be held liable for ordinary negligence. Chauvlier, 109 Wn. App. at 339.
[4, 5] ¶12 [HN4] The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 491, 834 P.2d 6 (1992). The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous. Stokes v. Bally’s Pacwest, Inc., 113 Wn. App. 442, 445, 54 P.3d 161 (2002).
 ¶13 [HN5] In Washington, contracts releasing liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (1974). [HN6] Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members [***7] of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established [*459] standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wn.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963)). The Johnsons fail to establish all six factors.
¶14 First, 185-mile relay races are not regulated; [***8] second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.
 ¶15 [HN7] Washington courts have not favored finding a public interest in adult recreational activities. As noted in Hewitt, 11 Wn. App. [**533] at 74, “[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty.” Similarly, “[a]lthough a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest.” Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574, 636 P.2d 492 (1981). Washington courts have come to the same conclusion regarding [*460] tobogganing and demolition car racing. Broderson v. Rainer Nat’l Park Co., 187 Wash. 399, 406, 60 P.2d 234 (1936), overruled in part by [***9] Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 853, 728 P.2d 617 (1986).
 ¶16 [HN8] A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. Vodopest v. MacGregor, 128 Wn.2d 840, 853, 913 P.2d 779 (1996). “Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965); see 6 Washington Practice: Washington Pattern Jury Instructions: Civil 10.07 (6th ed. 2012) (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993). To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises [***10] to the level of gross negligence. CR 56(e); Boyce, 71 Wn. App. at 666.
¶17 Spokane to Sandpoint marked the roadways to warn both drivers and runners of danger and provided a handbook to each runner advising about crossing busy roadways and highways. Nothing in this record establishes any duty to do more.
¶18 Our case is somewhat like Conradt, where Mr. Conradt was hurt in an auto race. 45 Wn. App. at 848. He signed a release before being told of a change in the race direction. Id. Mr. Conradt argued the risk had been materially altered by that change after he signed the release. Id. at 850. He explained he could not corner as well and he had not understood the additional risk. Id. The race promoter [*461] requested summary judgment based on the release. Id. at 848. The trial court dismissed Mr. Conradt’s complaint, finding the release was valid and the promoter’s action did not amount to gross negligence. Id. at 852. The Conradt court affirmed, holding the promoter’s “conduct was not so substantially and appreciably substandard that it rendered the release invalid.” Id.
 ¶19 Similarly, the Johnsons fail to show Spokane to Sandpoint committed gross negligence by failing to exercise slight care. See Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) [***11] (When a standard of proof is higher than ordinary negligence, the nonmoving parties must show that they can support their claim with prima facie proof supporting the higher level of proof.). Spokane to Sandpoint’s conduct does not reach gross negligence under the circumstances presented here.
 ¶20 Finally, the Johnsons argue the release was ambiguous and not conspicuous. Several Washington courts have analyzed waiver provisions to determine whether the language was conspicuous. [HN9] Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. See Baker, 79 Wn.2d at 202; McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d 574 (1989); Chauvlier, 109 Wn. App. at 342; Stokes, 113 Wn. App. at 448.
[**534] ¶21 The release executed by Ms. Johnson on line clearly sets apart the release language in either italicized letters or in all capital letters or both. The [***12] document was conspicuous with a header stating, “WAIVER AND RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” CP at 246. The waiver repeatedly warned Ms. Johnson that she was giving up her legal rights by [*462] signing the waiver, with this clearly indicated above the signature line. Although the Johnsons argue the waiver was ambiguous and, therefore, inconspicuous, Ms. Johnson (an attorney) acknowledged in her deposition that from a “legal perspective” she understood the release she signed “would … release the entities for any personal injury that might occur … during the activity.” CP at 138-39. Thus, no genuine issues of material fact remain regarding ambiguity or conspicuousness.
¶22 Given our analysis, we hold reasonable minds can reach but one conclusion; the preinjury release and waiver signed by Ms. Johnson precludes her from claiming an ordinary negligence duty by Spokane to Sandpoint, thus preventing her from seeking liability damages for her injuries. The trial court correctly concluded likewise in summarily dismissing the Johnsons’ complaint.
¶23 Affirmed. [***13]
Korsmo, C.J., and Siddoway, J., concur.
Merry Moiseichik, R.Ed, J.D., University of Arkansas
Jim Moss, Esq, Recreation Law
This presentation looks at the differences between states on how they define gross negligence and how a gross negligence claim affects release law.
Sport and Recreation Law Association Annual conference 2016
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