Release used to defend third party participants in horseback case applying Missouri’s law, not the main party to the contract.

Illinois resident sues Illinois’s resident for getting kicked by a horse in a riding area in Missouri. Area’s release included coverage for participants and protected horse owner from suit.

Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692

State: Illinois, Appellate Court of Illinois, Fourth District Applying Missouri law

Plaintiff: Deanna L. Perkinson

Defendant: Sarah Courson

Plaintiff Claims: Violation of the Animal Control Act and Negligence

Defendant Defenses: Release (neither party brought up the Missouri Equine Liability Act)

Holding: For the Defendant

Year: 2018

Summary

The term “other participants,” was used in a release signed to access land to ride horses to defend the owner of a horse that kicked another horse owner. The term was sufficient to include the rider in the protection the release afforded. Neither party argued the Equine Liability Act of Missouri where the incident took place.

Facts

Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff’s group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another’s homes or that they participated in any activities together other than horseback riding.

In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.

On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff’s group of friends. Plaintiff stated she had not known whether defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.

Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and believed it “was just to register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter.

Plaintiff testified that prior to signing the Cross Country forms, she understood that there was a risk of injury when participating in horseback riding events, including falling off a horse or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified she would have proceeded with the trail ride at Cross Country if she had read the form she signed, which included a warning about the risk of injury when participating in horseback riding events and statements indicating she fully assumed the risks of participation. Plaintiff acknowledged that the form she signed used the phrase “other participants.” She agreed that defendant would have been “another participant” in the activities at Cross Country.

On August 29, 2014, plaintiff, her family, and members of her group intended to take a six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever previously being around Little Bit. Further, she acknowledged consuming beer during the trail ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not remember defendant telling her when the kick occurred or that the horse was in heat at the time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while horseback riding on the day of the incident.

At some point during the trail ride, plaintiff and defendant began riding next to one another and were talking. Plaintiff did not recall who approached whom or how long they rode next to each other. As they were riding together down a hill, defendant’s horse kicked out with both of its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, underwent two surgeries.

Plaintiff testified that during the trail ride defendant should have put a red ribbon on her horse’s tail to warn others that her horse was known to kick. She asserted, however, that the presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated she returned to Cross Country for horseback riding after the August 2014 incident with defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 2016, she did plan to go to another location in Missouri for a Labor Day trail ride.

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

This is a complicated case because it was started in Illinois after the accident happened in Missouri. Consequently, the issues that support the outdoor recreation industry are woven around the other issues such as where the lawsuit should be and what law should be applied to the case.

The court was an Illinois court and the defendant, and the plaintiffs were Illinois’s residents. However, because the accident occurred in Missouri, the court applied Missouri’s law to the case.

The court first looked at Missouri’s law and the requirements to prove negligence.

To obtain relief in a negligence cause of action, “‘the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.'”

Then the assumption of the risk doctrine was reviewed as applied in Missouri.

Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk may not sue another for failing to protect him from it.”

A document showing the plaintiff assumed the risks or explicitly accepted the risks is called an express assumption of the risk document in Missouri (and most other states).

An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.” An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.” Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.”

The Missouri law concerning releases was analyzed.

Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” “[C]ontracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability.'” Missouri law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence,” and “[g]eneral language will not suffice.” “‘The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.’

In this case, the release was not signed because of a legal relationship between the parties, but was signed as part of accessing the land where the accident occurred. Meaning both parties signed the release to ride on the land. Consequently, the argument centered around whether that release was written to protect parties such as the defendant in this case. Whether the release signed by the plaintiff to ride on the land of the landowner provided protection to the owner of the horse that kicked her.

Additionally, [o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member. When an express declaration of intent is lacking, a strong presumption exists “‘that the third party is not a beneficiary and that the parties contracted to benefit only themselves.'”

As in most other states, to understand a contract you must determine the effect intended by the parties to be given to the contract. Each clause should be read in the context of the entire contract, not as individual issues. The information within the “four corners” of the contract is the only information that can be reviewed by a court in determining the meaning of a contract, unless the contract is ambiguous, then outside information can be brought into to define the ambiguous section.

A contract is ambiguous when “duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.”

The language of the release referred to “other participants.” The defendant argued that she was the intended beneficiary of this language. If the defendant was found to be the intended beneficiary, then the release would stop the claims of the plaintiff. The term other participants usually follows the name of the party wanting the release to be signed. In this case, the landowner would have their name as the party to be protected and the clause and other participants followed. Did the term have legal meaning and apply to the defendant or was the term just dicta, additional language in the agreement that had no meaning.

 

 

 

The plaintiff argued that she did not know what she was signing and therefore, could not have intended the release to benefit the defendant. The plaintiff also argued the phrase “other participants” was ambiguous.

However, the court disagreed and found it covered the defendant and was not a catch-all phrase. The court found the defendant was a participant within the meaning of the words and the language of the release.

The final failure of the plaintiff’s argument fell when the court brought up that in her own deposition, she characterized the defendant as another participant in the trail ride.

The next argument, is another argument that is surfacing in plaintiff’s arguments across the US. The plaintiff argued the release should not apply because it purports to relieve liability for more than simple negligence. Meaning the release was written to cover intentional torts, gross negligence and other activities of the public interest.

However, the court did not agree with that argument because the release did not refer to any additional legal theories other than negligence. The release only used the term negligence and did not sue any language that extended that term to a greater definition.

The court also quoted a Missouri Supreme Court decision that held that the plaintiff could not get a release thrown out by arguing it covered gross negligence. Missouri does not recognize gross negligence. Since it does not exist under Missouri’s law, it could not be used to void a release.

In DeCormier v. Harley-Davidson Motor Co. Group, Inc., the Missouri Supreme Court stated that it would “enforce exculpatory agreements to protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule by alleging [a defendant was] grossly negligent because Missouri’s courts do not recognize degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has raised in this case both before the trial court and on appeal.

Nor does Missouri recognize a cause of action for recklessness.

The next argument was the release was not clear because it was mixed in with another form. The top part of the form was labeled a registration form, and the bottom part was a release.

The court recognized this but found the release part of the form was labeled Release of Liability – Read Before Signing and separated by a dotted line from the top of the form. The significant language in the release was also capitalized for emphasis.

The court held with the trial court and found the release signed by the parties to ride on the property protected the defendant in this case.

 

 

 

So Now What?

This is the first case I have found where a release was used to protect a third party from a lawsuit. I have long argued that this should be the case. Even though the release was signed for a land owner, any litigation is going to cost many parties money. The decision does not say, however, in cases like this many times, the landowner and other participants in the ride are deposed, and as such they lose work and possibly incur legal fees for the depositions.

Having the release be part of a registration form was an issue. Eliminate the argument by the plaintiff and make it a separate form. If you need more information than what is normally required on a release collect it a different way or at the end.

What do you think? Leave a comment.

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Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692

Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692

Appellate Court of Illinois, Fourth District

March 12, 2018, Filed

NO. 4-17-0364

DEANNA L. PERKINSON, Plaintiff-Appellant, v. SARAH COURSON, Defendant-Appellee.

Prior History:  [***1] Appeal from Circuit Court of Jersey County. No. 15L31. Honorable Eric S. Pistorius, Judge Presiding.

Disposition: Affirmed.

Counsel: Timothy J. Chartrand, of Williamson, Webster, Falb & Glisson, of Alton, for appellant.

Amy L. Jackson and Samantha Dudzinski, of Rammelkamp Bradney, P.C., of Jacksonville, for appellee.

Judges: PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Steigmann and Turner concurred in the judgment and opinion.

Opinion by: HARRIS

Opinion

 [****698]  [**580]  PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justices Steigmann and Turner concurred in the judgment and opinion.

OPINION

 [*P1]  In August 2014, plaintiff, Deanna L. Perkinson, was kicked by a horse and injured. In December 2015, she filed a two-count complaint against the horse’s owner, defendant Sarah Courson, alleging a violation of the Illinois Animal Control Act (510 ILCS 5/1 to 35 (West 2014)) (count I) and negligence (count II). Although plaintiff and defendant are Illinois residents, the incident at issue occurred in Missouri and the trial court determined Missouri law controlled the conflict. Following that determination, the court granted defendant’s motion to dismiss count I of plaintiff’s complaint and her motion for summary judgment as to count II. Plaintiff appeals, arguing the court erred in (1) ruling on defendant’s motion to dismiss count I of the complaint because the motion was brought pursuant to the [***2]  wrong statutory section, (2) finding Missouri law applied to the parties’ controversy, and (3) finding defendant was entitled to summary judgment on count II of the complaint. We affirm.

[*P2]  I. BACKGROUND

 [*P3]  In her December 2015 complaint, plaintiff alleged that both she and defendant were Illinois residents. On August 29, 2014, they were horseback riding alongside one another on a public trail when plaintiff was kicked by the horse defendant was riding, which defendant owned. Plaintiff maintained she sustained permanent and disfiguring injuries to her right leg as a result of being kicked. In connection with count I of her complaint, alleging a violation of the Animal Control Act, plaintiff also asserted that at the time and place of her injury, she did not provoke defendant’s horse, had been conducting herself peaceably, and was in a location where she had a legal right to be. Relative to count II, alleging negligence, plaintiff asserted defendant owed her a duty of care but breached that duty by (1) failing to warn plaintiff of the horse’s violent propensity to kick others, (2) failing to properly train the  [**581]   [****699]  horse, (3) riding too close to plaintiff and plaintiff’s horse when knowing that [***3]  her horse had a violent propensity to kick others, and (4) riding her horse contrary to industry and practice norms. Plaintiff further alleged that as a direct and proximate result of defendant’s negligence, she was kicked by defendant’s horse without provocation and injured.

 [*P4]  In January 2016, defendant filed a motion to dismiss plaintiff’s complaint. She first sought dismissal of count I pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). Specifically, defendant argued that the incident at issue occurred while the parties were on a horseback riding trip in Eminence, Missouri, and, as a result, Missouri law governed “the pending litigation.” She further maintained that because count I of plaintiff’s complaint was based entirely on Illinois statutory law, that count necessarily failed to state a claim upon which any relief could be granted and had to be dismissed. Defendant further sought dismissal of both count I and count II under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2014)). She argued plaintiff signed a “‘Release of Liability'” (Release) prior to horseback riding, which, under Missouri law, barred her claims.

 [*P5]  In February 2016, plaintiff responded to defendant’s motion, arguing Illinois [***4]  law applied to both counts of her complaint. Further, she argued the Release referenced by defendant should be disregarded because defendant failed to attach a sworn or certified copy of the Release to her motion to dismiss. Plaintiff alternatively argued the Release was against Illinois public policy, vague, ambiguous, overbroad, and could not be relied upon by defendant who was “a non-party outside of the Release.”

 [*P6]  In March 2016, the trial court conducted a hearing on defendant’s motion to dismiss. At the hearing, defendant withdrew the portion of her motion that sought dismissal pursuant to section 2-619 and proceeded only with the portion of her motion that sought dismissal of count I under section 2-615. Ultimately, the court granted defendant’s motion to dismiss count I, holding as follows:

“[I]n conflict of law cases the courts must determine which forum has the most significant contacts with the litigation. Further, there is a legal presumption that the law of the state where the injury occurred applies in determining the rights and liabilities of the parties unless Illinois has a more significant relation to the conflict. This court finds that *** plaintiff has failed to establish that Illinois has [***5]  a more significant relationship to the conflict. As such, Count I, which is based on the [Illinois] Animal Control Act, is hereby dismissed.”

 [*P7]  In April 2016, plaintiff filed a motion to reconsider the trial court’s ruling as to count I of her complaint. She argued the court erred in its application of existing law as the case authority cited by both parties heavily favored application of Illinois law rather than Missouri law. Additionally, plaintiff maintained the court erred by placing the burden on her to establish that Illinois had a more significant relationship to the matter, rather than on defendant, the moving party.

 [*P8]  In June 2016, a hearing was conducted on plaintiff’s motion to reconsider. In its written order, the trial court stated it had considered both plaintiff’s motion and defendant’s response and “noted, for the first time,” that the question of which state’s law to apply involved factual determinations regarding the nature of the parties’ relationship, the planning of their trip to Missouri, and the training of defendant’s horse while in Illinois. The court  [**582]   [****700]  pointed out that no affidavits or deposition testimony had been presented by the parties and elected to “keep plaintiff’s [***6]  Motion to Reconsider under advisement until the[ ] facts or issues [could] be fleshed out during the discovery process.”

 [*P9]  In September 2016, plaintiff filed a supplemental brief to her motion to reconsider, and defendant filed a supplemental response. Plaintiff attached the depositions of both parties to her filing.

 [*P10]  During her deposition, plaintiff testified she resided in Dow, Illinois, both at the time of the incident at issue and at the time of her deposition. She had known defendant since 2003. They met through mutual friends and were brought together through the activity of horseback riding. Plaintiff and her husband had also purchased defendant’s house.

 [*P11]  Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff’s group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback [***7]  riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another’s homes or that they participated in any activities together other than horseback riding.

 [*P12]  On examination by her own counsel, plaintiff testified that prior to August 2014, she considered defendant her friend. They had ridden horses together in Illinois and “hung out” at the home of a mutual friend. Also, they had each other’s telephone numbers and were Facebook friends.

 [*P13]  In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.

[*P14]  On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff’s group of friends. Plaintiff stated she had not known whether [***8]  defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.

[*P15]  Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and believed it “was just to register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter.

[*P16]  Plaintiff testified that prior to signing the Cross Country forms, she understood that there was a risk of injury when participating in horseback riding events, including falling off a horse or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified she would have proceeded with the trail ride at Cross Country if she had read the form she signed, which included a  [**583]   [****701]  warning about the risk of injury when participating [***9]  in horseback riding events and statements indicating she fully assumed the risks of participation. Plaintiff acknowledged that the form she signed used the phrase “other participants.” She agreed that defendant would have been “another participant” in the activities at Cross Country.

[*P17]  On August 29, 2014, plaintiff, her family, and members of her group intended to take a six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever previously being around Little Bit. Further, she acknowledged consuming beer during the trail ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not remember defendant telling her when the kick occurred or that the horse was in heat at the time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while horseback riding on the day of the incident.

[*P18]  At some point during the trail [***10]  ride, plaintiff and defendant began riding next to one another and were talking. Plaintiff did not recall who approached whom or how long they rode next to each other. As they were riding together down a hill, defendant’s horse kicked out with both of its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, underwent two surgeries.

[*P19]  Plaintiff testified that during the trail ride defendant should have put a red ribbon on her horse’s tail to warn others that her horse was known to kick. She asserted, however, that the presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated she returned to Cross Country for horseback riding after the August 2014 incident with defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 2016, she did plan to go to another location in Missouri for a Labor Day trail ride.

 [*P20]  As stated, the record also contains defendant’s deposition. Defendant testified she resided in [***11]  Farina, Illinois, with her husband. She met plaintiff in 2003 through her former sister-in-law who was friends with plaintiff. Also, in 2013, plaintiff purchased defendant’s house in Dow, Illinois. Defendant testified she advertised the sale of her house on Facebook and plaintiff “friended [her] on Facebook” and contacted her by telephone about the house. Defendant noted her phone number was in her advertisement. She was not aware of plaintiff having her phone number prior to the time she advertised the sale of her house. Defendant considered plaintiff to be an acquaintance rather than a friend, noting they only socialized through mutual friends and always went horseback riding in a group setting. She estimated that she went horseback riding with plaintiff twice a year since 2006 but did not recall whether all of those occasions were in Illinois.

 [*P21]  Defendant testified she grew up around horses and regularly went horseback riding. Since 2003, she owned 11 different horses. Defendant stated someone else would train her horses to ride and then she “worked the tweaks out.” Specifically, defendant stated she trained her horses, including Little Bit, to “neck rein,”  [**584]   [****702]  not to ride too close to [***12]  other horses, and in “ground manners.”

 [*P22]  In 2012, defendant purchased Little Bit from one of the members of her horseback riding group of friends. She kept Little Bit at her farm in Farina, Illinois. In 2013, Little Bit was trained for 30 days in Kampsville, Illinois, by an individual named Samuel Kaufman. Thereafter, defendant took over. Defendant testified her training with Little Bit included going on several trail rides with other horses. She estimated Little Bit went on six trail rides before the Cross Country trail ride in August 2014. Defendant stated that, prior to August 2014, Little Bit kicked at another horse in a pasture while she was in heat. During that incident, Little Bit made contact with defendant’s husband who “was in the way.” Defendant denied that any other kicking incidents occurred prior to August 2014.

 [*P23]  Defendant testified she had been to Cross Country eight times prior to August 2014. She always went to Cross Country with a group. Defendant recalled seeing plaintiff at Cross Country prior to 2014 but did not recall if they rode horses together. In August 2014, defendant was at Cross Country with her husband, mother, and father. During the August 29, 2014, trail [***13]  ride, defendant rode Little Bit, who had not previously been on a trail ride at Cross Country.

 [*P24]  Defendant acknowledged drinking alcohol on the trail ride but stated she did not know if she was intoxicated. She estimated she had less than six beers, the amount she typically packed in her cooler. Defendant denied noticing anything peculiar about Little Bit during the trail ride. However, she asserted she told all of the other horseback riders that she would stay toward the back of the group because Little Bit was young, she did not know whether the horse would kick, and defendant did not totally trust the horse. Defendant testified she trusted Little Bit enough to ride her with other people but “didn’t trust that she maybe wouldn’t kick.”

 [*P25]  Defendant described the incident involving plaintiff, stating they were coming down a hill side by side when Little Bit “trotted up ahead.” She then heard plaintiff yell out and observed plaintiff reaching for her leg. Defendant estimated that she and plaintiff had been a little more than arm’s distance apart and were having a conversation before the incident. She stated she did not know why Little Bit kicked. In the fall of 2014, defendant sold Little [***14]  Bit. She testified she was not comfortable with the horse, noting an occasion when Little Bit bucked her off after being “spooked” by cattle.

 [*P26]  In October 2016, the trial court entered a written order finding no reason to reconsider its previous ruling and denying plaintiff’s motion to reconsider. In so holding, the court noted it reviewed its prior decision and the parties’ additional arguments. It stated the additional facts presented to it only further supported its decision to grant defendant’s motion to dismiss.

 [*P27]  In February 2017, defendant filed a motion for summary judgment as to count II of plaintiff’s complaint, alleging negligence, as well as a memorandum of law in support of her motion. She alleged that based on the deposition testimony of plaintiff and defendant, no question of material fact existed and she was entitled to judgment in her favor as a matter of law. Defendant maintained plaintiff was unable to establish that defendant owed her a duty, arguing that plaintiff both implicitly and explicitly assumed the risks associated with horseback riding. Also, she argued that plaintiff’s “testimony undermine[d] any and all proffered allegations of breach of duty.”

 [*P28]  [**585]  [****703]  Defendant [***15]  attached the parties’ depositions to her filing, as well as copies of the Cross Country documents plaintiff acknowledged signing. The documents included forms titled “RELEASE OF LIABILITY—READ BEFORE SIGINING [sic],” which provided as follows:

“In consideration of being allowed to participate in any way, including but not limited to trail riding, competing, officiating, working for, recreating in any fashion while visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and activities, I *** the undersigned, acknowledge, appreciate, and agree that;

1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce the risk, the risk of serious injury does exist; and,

2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation; and,

3. I willingly agree to comply with the stated and customary terms of participation. If, however, I observe any unusual significant hazard during my presence [***16]  or participation, I will remove myself from participation and bring such to the attention of the Company immediately; and,

4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.

5. Releasor expressly agrees that this release, waiver, and indemnity agreement is intended to be as broad and inclusive as permitted by the laws of the State of Missouri and that if any portion thereof is held invalid, it is agreed that the valid portion shall, not withstanding, continue in full legal force and effect.”

 [*P29]  In March 2017, plaintiff filed a response to defendant’s motion, and in April 2017 defendant filed a reply. Both parties relied on Missouri [***17]  substantive law when addressing defendant’s motion for summary judgment. In April 2017, the trial court also conducted a hearing in the matter and entered a written order granting defendant’s motion. Although the court’s written order did not specify the basis for its ruling, the court’s oral comments at the hearing reflect that it relied upon the Release plaintiff signed at Cross Country. Specifically, it stated as follows:

“Based upon the Release and without going to what is otherwise, I think a factual question, I think the Release in and of itself is sufficient to provide a basis for [defendant’s] Motion for Summary Judgment. It identifies itself as a release. It specifically tells the person who’s signing it to sign it and [plaintiff] sign[ed] not only for herself, but for her underage children. It says ‘please read this before you sign it[.’] It specifically addresses other participants. That’s as strong of language as you can get. So based *** on that, and that alone, the  [**586]   [****704]  court’s [going to] grant the Motion for Summary Judgment.”

 [*P30]  This appeal followed.

[*P31]  II. ANALYSIS

[*P32]  A. Statutory Designation for Motion to Dismiss

 [*P33]  On appeal, plaintiff first argues the trial court erred in granting [***18]  defendant’s motion to dismiss count I of her complaint, alleging a violation of the Animal Control Act, because it was brought under the wrong section of the Code. She notes defendant sought dismissal of count I pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)) but argues that, because defendant’s motion “raised an affirmative, factual defense,” it should have been brought pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)).

 [*P34] 
“A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face.” Bueker v. Madison County, 2016 IL 120024, ¶ 7, 410 Ill. Dec. 883, 72 N.E.3d 269. “The only matters to be considered in ruling on such a motion are the allegations of the pleadings themselves.” Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485, 639 N.E.2d 1282, 1289, 203 Ill. Dec. 463 (1994). Conversely, “[a] motion to dismiss under section 2-619 [citation] admits the legal sufficiency of the plaintiff’s claim, but asserts certain defects or defenses outside the pleading that defeat the claim.” In re Scarlett Z.-D., 2015 IL 117904, ¶ 20, 390 Ill. Dec. 123, 28 N.E.3d 776. Where grounds for dismissal do not appear on the face of the complaint, the section 2-619 motion must be supported by affidavit. 735 ILCS 5/2-619(a) (West 2014).

 [*P35]  As noted, defendant sought dismissal of count I of plaintiff’s complaint, arguing Missouri law applied to the parties’ conflict and, as a result, plaintiff’s claim asserting liability based solely on an Illinois statute—the Animal Control Act—could [***19]  not stand. Defendant brought her motion under section 2-615 of the Code, and as stated, plaintiff argues defendant should have designated section 2-619.

 [*P36]  Here, it appears defendant labeled her motion to dismiss count I with the wrong statutory section. Section 2-619(a)(9) of the Code provides for dismissal where “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2014)). “[A]ffirmative matter” has been held to include “the basic issue as to which state’s law is to apply to the action.” Ingersoll v. Klein, 106 Ill. App. 2d 330, 336, 245 N.E.2d 288, 291 (1969), aff’d, 46 Ill. 2d 42, 262 N.E.2d 593 (1970); see also Illinois Graphics, 159 Ill. 2d at 487 (citing Ingersoll, 46 Ill. 2d at 42, for the proposition that a choice-of-law defense had “been considered ‘affirmative matter’ so as to negate completely the asserted claim”).

 [*P37]  Additionally, our supreme court has acknowledged that  the conflict-of-law methodology “may raise factual issues.” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 154, 879 N.E.2d 893, 898, 316 Ill. Dec. 505 (2007). Such factual issues are properly considered and addressed in the context of a section 2-619 motion to dismiss, where a trial court may consider pleadings, depositions, and affidavits when making its ruling (Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 1002, 209 Ill. Dec. 27 (1995)), rather than in the context of section 2-615 motion, where only the pleadings may be considered (Illinois Graphics, 159 Ill. 2d at 485).

 [*P38]  Nevertheless, even if defendant improperly labeled her motion to dismiss count I, no reversible error [***20]  occurred. We note plaintiff failed to object to the  [**587]   [****705]  statutory designation in defendant’s motion to dismiss. Thus, she has forfeited her challenge to that designation on appeal. American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 280, 735 N.E.2d 551, 554, 248 Ill. Dec. 900 (2000). Moreover, setting plaintiff’s forfeiture aside, we note that  a defendant’s error in labeling a motion to dismiss is not fatal where the nonmoving party has suffered no prejudice. Wallace v. Smyth, 203 Ill. 2d 441, 447, 786 N.E.2d 980, 984, 272 Ill. Dec. 146 (2002). In this instance, plaintiff acknowledges that the trial court allowed the choice-of-law issue to be “fleshed out” through the discovery process. Further, the record shows the issue was given full and thorough consideration by the trial court. Thus, plaintiff had a sufficient opportunity to be heard, and we find no reversible error.

[*P39]  B. Choice-of-Law Determination

 [*P40]  Plaintiff next argues the trial court erred in finding Missouri law applied to the parties’ conflict. She contends that a choice-of-law analysis and the facts applicable to that analysis support the conclusion that Illinois has a more significant relationship to her cause of action.

 [*P41]  Initially, we note that a de novo standard of review applies to this issue. Such a standard is applicable on review of a dismissal under either section 2-615 or 2-619 of the Code. Patrick Eng’g, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31, 976 N.E.2d 318, 364 Ill. Dec. 40. Additionally, we apply a de [***21]  novo standard when reviewing a trial court’s choice-of-law determination. Townsend, 227 Ill. 2d at 154.

 [*P42] 
“A choice-of-law determination is required only when a difference in law will make a difference in the outcome.” Id. at 155. Thus, “a choice-of-law analysis begins by isolating the issue and defining the conflict.” Id. Here, the parties agree that conflicts exist between Missouri and Illinois law. Notably, they identify Missouri’s lack of a statute that is equivalent to the Illinois Animal Control Act. If Illinois law applies, claimant can maintain the cause of action alleged in count I of her complaint, which is based on that Illinois statute; however, if Missouri law applies, count I of her complaint must be dismissed as it would state no cause of action upon which relief could be granted under Missouri law. Thus, we agree that a conflict exists that will result in a difference in outcome.

 [*P43]  Next, when making a choice-of-law determination, “the forum court applies the choice-of-law rules of its own state.” Id.  Illinois has adopted the choice-of-law analysis contained in the Restatement (Second) of Conflict of Laws (1971) (Second Restatement).Townsend, 227 Ill. 2d . at 163-64. Under the Second Restatement, a presumption exists in favor of applying the [***22]  law of the state where the injury occurred. Id. at 163. The presumption “may be overcome only by showing a more or greater significant relationship to another state.” (Emphases in original.) Id. Specifically, section 146 of the Restatement provides as follows:

“In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in [the Second Restatement] to the occurrence and the parties, in which event the local law of the other state will be applied.” Restatement (Second) of Conflict of Laws § 146 (1971).

 [*P44] 
Once a court chooses the presumptively applicable law, it “tests” its  [**588]   [****706]  choice against various “principles” and “contacts” as set forth in sections 6 and 145 of the Second Restatement. Townsend, 227 Ill. 2d at 164. Section 6(2) sets forth the following relevant factors for consideration:

“(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field [***23]  of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.”

Restatement (Second) of Conflict of Laws § 6(2) (1971).

 [*P45]  Additionally, section 145(2) sets forth the following “[c]ontacts to be taken into account in applying the principles of [section] 6“:

“(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2) (1971).

The contacts set forth in section 145(2) “are to be evaluated according to their relative importance with respect to the particular issue.” Id.

 [*P46]  Practically, it makes no difference whether a court first considers the section 145(2) contacts or the section 6(2) general principles. Townsend, 227 Ill. 2d at 168. “In either case[,] the Second Restatement’s goal is the same—to ensure that a court is not merely ‘counting contacts,’ and that each contact is meaningful in light of the policies sought to be vindicated by the conflicting laws.” Id.

 [*P47]  Here, plaintiff was kicked by defendant’s horse while on a trail ride in Missouri. Thus, Missouri is “the state where the injury occurred,” and a presumption exists in favor [***24]  of applying Missouri law unless, as plaintiff argues, Illinois has a more significant relationship to the occurrence and the parties. In testing this presumption, we first consider relevant “contacts” as set forth in section 145(2) of the Restatement.

[*P48]  1. Section 145 Contacts

 [*P49]  The first contact for consideration is the place where the injury occurred. Restatement (Second) of Conflict of Laws § 145(2)(a) (1971). As discussed, plaintiff was kicked by defendant’s horse in Missouri, and thus, that is where her injury occurred. Plaintiff maintains this factor is of minimal importance because the location of her injury was merely fortuitous in that the incident could just as easily have occurred in Illinois. To support her argument, plaintiff cites cases with fact scenarios that involve interstate travelers and motor vehicle accidents, which courts have determined could just as easily have occurred in another state. Murphy v. Mancari’s Chrysler Plymouth, Inc., 408 Ill. App. 3d 722, 727-28, 948 N.E.2d 233, 238, 350 Ill. Dec. 164 (2011); Miller v. Hayes, 233 Ill. App. 3d 847, 852, 600 N.E.2d 34, 38, 175 Ill. Dec. 411 (1992); Schulze v. Illinois Highway Transportation Co., 97 Ill. App. 3d 508, 510-11, 423 N.E.2d 278, 280, 53 Ill. Dec. 86 (1981).

 [*P50]  [****707]  [**589]  Specifically, in Murphy, 408 Ill. App. 3d at 723, the plaintiffs were Illinois residents who brought suit against an Illinois automobile dealer that sold them a vehicle after one of the plaintiffs was injured in a motor vehicle accident in Michigan. The trial court determined Michigan law applied to the liability and damages issues in the case, and the plaintiffs appealed. Id. at 724.

 [*P51]  On review, the First District [***25]  noted that, in the context of a choice-of-law analysis, “situations may exist where the place of injury is merely fortuitous and, therefore, not an important contact.” Id. at 727. In the case before it, the court found that the injured plaintiff’s presence in Michigan was not fortuitous because “[h]e was purposefully and voluntarily in Michigan, driving to his weekend home with the intention of staying there for several days.” Id. at 727. However, it also determined that a purposeful presence in Michigan did not mean that the accident “could not have happened in Michigan fortuitously.” Id. It pointed out that the cause of the accident had not been determined and “[t]he same type of accident and the same type of injuries could have just as easily happened in Illinois.” Id. at 727-28. Thus, the court concluded the place of injury was not an important consideration in the context of the case before it. Id. at 728.

 [*P52]  Defendant argues Murphy is distinguishable from the present case, and we agree. Notably, this case does not involve a motor vehicle accident that happened by chance in one state versus another. Instead, plaintiff’s injury occurred at the planned destination of both parties. The specific location, Cross Country, focused [***26]  on horseback riding activities in which both parties planned to engage. Additionally, both plaintiff and defendant had previously visited Cross Country on multiple occasions.

 [*P53]  We note comment e of section 145 provides as follows:

“In the case of personal injuries or of injuries to tangible things, the place where the injury occurred is a contact that, as to most issues, plays an important role in the selection of the state of the applicable law [citation]. *** This is so for the reason among others that persons who cause injury in a state should not ordinarily escape liabilities imposed by the local law of that state on account of the injury. ***

Situations do arise, however, where the place of injury will not play an important role in the selection of the state of the applicable law. This will be so, for example, when the place of injury can be said to be fortuitous or when for other reasons it bears little relation to the occurrence and the parties with respect to the particular issue ***.” (Emphasis added.) Restatement (Second) of Conflict of Laws § 145 cmt. e (1971).

Under the facts of this case, we cannot say that the place of injury bears little relation to the occurrence or the parties. This is particularly true in light of the underlying issues presented [***27]  in plaintiff’s complaint, which almost exclusively involve the parties’ behavior and conduct while horseback riding at Cross Country in Missouri. Therefore, we find this contact weighs in favor of applying Missouri law.

 [*P54]  The next contact for consideration is the place where the conduct causing the plaintiff’s injury occurred. Restatement (Second) of Conflict of Laws § 145(2)(b) (1971). An analysis of injury-causing conduct “includes all conduct from any source contributing to the injury,” including a defendant’s affirmative defenses  [**590]   [****708]  or allegations of contributory negligence. Townsend, 227 Ill. 2d at 169.

 [*P55]  Here, plaintiff acknowledges that, relative to count I, this factor favors application of Missouri law because “the place where the conduct causing the injury occurred would be the place where the animal caused injury without provocation.” She asserts, however, that she alleged injury-causing conduct that occurred in both Illinois and Missouri in connection with count II and thus, this factor must be “deemed a wash.” We disagree.

 [*P56]  In count II, plaintiff asserted defendant was negligent for failing to warn plaintiff of the horse’s violent propensity to kick, failing to properly train her horse, riding the horse too close to plaintiff, and failing to adhere to industry [***28]  and practice norms while riding her horse. All but one of these alleged actions or inactions by defendant occurred exclusively in Missouri. Additionally, defendant has argued that plaintiff expressly assumed the risks associated with horseback riding at Cross Country and points to the Release plaintiff signed in Missouri. Given that the vast majority of relevant conduct occurred in Missouri, we find this factor weighs in favor of applying Missouri law to the parties’ conflict.

 [*P57]  The third contact for consideration is “the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws § 145(2)(c) (1971). Here, both parties are Illinois residents and neither disputes that this factor weighs in favor of applying Illinois law.

 [*P58]  The final contact for consideration is “the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2)(d) (1971). In this instance, the parties’ relationship primarily arose from having a group of mutual friends in Illinois and engaging in horseback riding activities within that group. Plaintiff and defendant were riding horses together in Missouri at the time of the incident at issue but had previously ridden horses together in Illinois. [***29]  Ultimately, we find this contact favors applying Illinois law, as most of the parties’ interactions occurred within this state.

 [*P59]  Here, the section 145(2) contacts are evenly split, with two favoring application of Missouri law and two favoring Illinois law. However, as noted, the 145(2) contacts “are to be evaluated according to their relative importance with respect to the particular issue.” Restatement (Second) of Conflict of Laws § 145(2) (1971). In this case, the fact that the parties interacted with one another more frequently in Illinois has little to do with the issues presented by either count I or count II of plaintiff’s complaint. Thus, we find the fourth factor set forth in section 145(2) is only minimally important to the underlying proceedings. As a result, the section 145(2) contacts, when considered alone, support rather than rebut the presumption in favor of applying Missouri law. This does not end our analysis, however, and we must also consider the principles set forth in section 6 of the Second Restatement.

[*P60] 2. Section 6 Principles

 [*P61]  As noted, section 6(2) of the Second Restatement sets forth the following principles for consideration when conducting a choice-of-law analysis:

“(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant [***30]  policies of other interested states and the relative interests of those states in the determination of the particular issue,

 [****709]  [**591]  (d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.”

Restatement (Second) of Conflict of Laws § 6(2) (1971).

In this case, a detailed analysis of all seven section 6 principles is unnecessary because the principles set forth in sections 6(2)(a), 6(2)(d), and 6(2)(f) are only minimally implicated in a personal injury action. Townsend, 227 Ill. 2d at 169-70 (citing Restatement (Second) of Conflict of Laws § 145 cmt. b, at 415-16 (1971)). Therefore, we confine our analysis to the remaining section 6 principles. Id. at 170.

 [*P62]  As stated, the parties agree that Illinois law conflicts with Missouri law based upon the existence of the Animal Control Act in Illinois and the lack of an equivalent Missouri statute. Initially, we consider this conflict in light of the relevant policies of Illinois (section 6(2)(b)), the relevant policies of Missouri and the relative interest of Missouri in the determination of the issue (section 6(2)(c)), and the basic policies underlying the particular field of law (section 6(2)(e)).

 [*P63]  Under the Animal Control Act, “[i]f a dog or other animal, without provocation, attacks, attempts to attack, [***31]  or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.” 510 ILCS 5/16 (West 2014). Our supreme court has described the history behind the Animal Control Act and interpreted its provisions as follows:

“The original version of this statute was passed in 1949 and applied only to dogs. [Citation.] The apparent purpose of the legislation was modest: to reduce the burden on dog-bite plaintiffs by eliminating the ‘one-bite rule’—the common law requirement that a plaintiff must plead and prove that a dog owner either knew or was negligent not to know that his dog had a propensity to injure people. [Citation.]

Enacting the Animal Control Act in 1973, the legislature amended this ‘dog-bite statute’ to cover ‘other animals.’ ***

*** [W]e believe that the legislature intended only to provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal [***32]  poses to them. This interpretation is consistent with the emphasis the statute places on lack of provocation and plaintiff’s peaceable conduct in a place in which he is legally entitled to be.” Harris v. Walker, 119 Ill. 2d 542, 546-47, 519 N.E.2d 917, 918-19, 116 Ill. Dec. 702 (1988).

In Harris, the supreme court held the Animal Control Act was inapplicable to circumstances “where a person rents a horse and understands and expressly accepts the risks of using the horse.” Id. at 547-48; Johnson v. Johnson, 386 Ill. App. 3d 522, 535, 898 N.E.2d 145, 159, 325 Ill. Dec. 412 (2008) (“[T]he common law defense of assumption of the risk has been recognized as a valid affirmative defense to an action brought pursuant to the Animal Control Act.”).

 [*P64]  As indicated by the parties, Missouri does not have a comparable statute. See Mo. Ann. Stat. § 273.036 (West  [**592]   [****710]  2014) (providing for strict liability in the event of dog bites but not applying to other animals). However, it has enacted the Equine Liability Act, for the purpose of codifying “the common law assumption of risk principle in the context of a specific recreational activity.” Frank v. Mathews, 136 S.W.3d 196, 202 (Mo. Ct. App. 2004). That Act limits liability for injuries resulting from the inherent risks associated with equine activities, providing as follows:

“[A]n equine activity sponsor, an equine professional, *** any employee thereof, or any other person or corporation shall not be liable for an injury to or [***33]  the death of a participant resulting from the inherent risks of equine *** activities and, *** no participant or a participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, *** any employee thereof, or any other person from injury, loss, damage or death of the participant resulting from any of the inherent risks of equine or livestock activities.” (Emphases added.) Mo. Ann. Stat. § 537.325(2) (West 2014).

Under the Equine Liability Act, an “equine activity” includes “[r]ides *** sponsored by an equine activity sponsor.” Id. § 537.325(3)(e). Further, an “equine activity sponsor” includes a group or corporation that “sponsors, organizes[,] or provides the facilities for, an equine activity.” Id. § 537.325(4). The Equine Liability Act does not relieve covered individuals “from any duty that common law negligence principles impose upon them.” Frank, 136 S.W.3d at 203.

 [*P65]  Finally, we note that, although not significantly addressed by either party, Illinois has also adopted an Equine Activity Liability Act (Illinois Equine Act) (745 ILCS 47/1 et seq. (West 2014)). The legislature has set forth the purpose of the Illinois Equine Act as follows:

“The General Assembly recognizes that persons who participate [***34]  in equine activities may incur injuries as a result of the risks involved in those activities. The General Assembly also finds that the State and its citizens derive numerous economic and personal benefits from equine activities. Therefore, it is the intent of the General Assembly to encourage equine activities by delineating the responsibilities of those involved in equine activities.” 745 ILCS 47/5 (West 2014).

The Fifth District of this court has noted that equine activity liability acts “have been enacted in more than 40 states since the mid-1980s” and are intended “to promote equine activities and the horse industry in general by limiting liability for some horse-related activities.” Smith v. Lane, 358 Ill. App. 3d 1126, 1128-29, 832 N.E.2d 947, 950, 295 Ill. Dec. 497 (2005).

 [*P66]  Here, plaintiff argues the policy behind the Animal Control Act “is more significant within the context of injuries by animals than the purpose of the Missouri Equine Liability Act.” We cannot agree. Clearly, Illinois has a policy, by way of the Animal Control Act, of protecting individuals who come into contact with an animal and are unable to appreciate or avoid the risks posed by the animal. However, both Missouri and Illinois have acknowledged that special circumstances exist with respect to horses and equine-related [***35]  activities. Like Missouri law, Illinois law also contemplates that certain inherent risks are associated with equine activities like the sort of activity engaged in by the parties in this case. Both states have a policy of promoting equine activities and limiting liability associated with those activities. Both states also take into account assumption of risk principles with respect to horse-related injuries, even in the context of the Animal Control Act. Given these circumstances, we fail to see how  [**593]   [****711]  Illinois policies are any “more significant” than those behind relevant Missouri law. Rather, both states appear to have similar policies and interests relative to injuries caused by horse-related activities.

 [*P67]  In addressing the relevant policies and interests of both Illinois and Missouri, plaintiff also argues that Illinois has a significant interest in providing tort remedies to its injured citizens. She cites Esser v. McIntyre, 169 Ill. 2d 292, 300, 661 N.E.2d 1138, 1142, 214 Ill. Dec. 693 (1996), wherein the supreme court held that “[h]aving provided a legal means for a plaintiff to recover for injuries caused by a defendant’s culpable conduct, Illinois has a strong interest in providing that remedy in disputes between Illinois residents.” In so holding, the court noted [***36]  that under the law of the place of injury in that case—Mexico—Illinois’s interest would be circumvented because the plaintiff had no remedy against the defendant. Id. In fact, the parties had agreed that the plaintiff had no cause of action against the defendant under Mexican law. Id. at 297. The same cannot be said in this case, as plaintiff has a potential remedy under Missouri law in the form of a negligence cause of action. Further, we note that Missouri has a competing interest in having its laws apply to equine-related activities that occur within its borders.

 [*P68]  Ultimately, we disagree with plaintiff that the policies and interests relevant to this matter weigh in favor of applying Illinois law. Therefore, plaintiff does not overcome the presumption in favor of applying Missouri law.

 [*P69]  On review, plaintiff also addresses the principle relating to the “ease in the determination and application of the law to be applied.” Restatement (Second) of Conflict of Laws § 6(2)(g) (1971). She maintains that because Illinois law is more advantageous to her claim, this principle weighs in favor of applying Illinois law. However, we agree with defendant that the purpose of section 6(2)(g) is to consider whether the competing laws are “simple and easy to apply” rather [***37]  than which law is most beneficial to plaintiff. See Restatement (Second) of Conflict of Laws § 6 cmt. j (1971).

 [*P70]  Relative to this principle, we note that the Illinois Equine Act may be applied to preempt the Animal Control Act in certain situations. See Carl v. Resnick, 306 Ill. App. 3d 453, 458-59, 714 N.E.2d 1, 5, 239 Ill. Dec. 443 (1999) (stating the Illinois Equine Act would bar actions in which the plaintiff was engaged in an “‘equine activity'” that would have previously been permitted under the Animal Control Act); Smith, 358 Ill. App. 3d at 1134 (stating that “had the [Illinois] Equine Act applied to the facts of the case, preemption would have barred an action for the same alleged injuries under the Animal Control Act”). However, the Illinois Equine Act has also been found to be “unclear as to whether it was meant to limit the liability of persons other than equine activity sponsors and equine professionals,” i.e., persons like defendant in this case. Kush v. Wentworth, 339 Ill. App. 3d 157, 165, 790 N.E.2d 912, 918, 274 Ill. Dec. 139 (2003). In Kush, the Second District of this court criticized the Illinois Equine Act for containing inconsistencies and “obvious drafting error,” as well as provisions that could lead to absurd results. Id. at 162-63. Given the lack of clarity of this state’s equine activity liability act, we must find that consideration of whether the competing laws are “simple and easy to apply” also weighs in favor of applying [***38]  Missouri law.

 [*P71]  As discussed, a presumption exists in this case in favor of applying the Missouri law to the parties’ conflict. We find  [**594]   [****712]  nothing in either the parties’ arguments or our review of the Second Restatement’s relevant contacts and principles for consideration that overrides that presumption. Thus, we find no error in the trial court’s finding that Missouri law applies to the underlying controversy.

 [*P72]  In so holding, we note that plaintiff suggests it is unclear from the underlying proceedings whether the trial court’s choice-of-law ruling was as to both counts of her complaint. We disagree. The court’s order referred generally to “the litigation” or “the conflict” when holding Missouri law was applicable, and nothing in its orders indicates that its ruling was limited to only count I. Further, as plaintiff acknowledges, both parties proceeded as if Missouri law applied to count II by citing substantive law from that state in connection with filings related to defendant’s motion for summary judgment. Therefore, we find plaintiff’s assertion that the record is somehow unclear is without merit.

[*P73]  C. Motion for Summary Judgment

 [*P74]  On appeal, plaintiff next argues the trial court erred [***39]  in granting defendant’s motion for summary judgment as to count II of her complaint. “Summary judgment is properly granted when the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 34, 413 Ill. Dec. 34, 77 N.E.3d 639. “If the plaintiff fails to establish any element of the cause of action, summary judgment for the defendant is proper.” Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9, 320 Ill. Dec. 784 (2008). The trial court’s summary judgment ruling is subject to de novo review. Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 48, 412 Ill. Dec. 882, 77 N.E.3d 50.

 [*P75] 
To obtain relief in a negligence cause of action, “‘the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.'” Peters v. Wady Industries, Inc., 489 S.W.3d 784, 793 (Mo. 2016) (quoting Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo. 1993)). In this case, both before the trial court and on appeal, defendant has argued that plaintiff cannot establish that defendant owed her a duty based on the Release plaintiff signed at Cross Country. The trial court’s oral ruling reflects that it agreed with this argument and granted summary judgment in defendant’s favor. For the reasons that follow, we [***40]  also agree that plaintiff signed a valid and enforceable release of liability and expressly assumed the risks associated with the underlying horseback riding activities.

 [*P76] 
Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk[ ] *** may not sue another for failing to protect him from it.” Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. 2014). An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.” Id. An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.” Id. Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.” Id. at 193.

 [*P77] 
“Although exculpatory clauses in contracts releasing an individual  [**595]   [****713]  from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “[C]ontracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party [***41]  claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability.'” Id. (quoting Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. Ct. App. 1995)). Missouri law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence,” and “[g]eneral language will not suffice.” Id. at 337. “‘The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.'” Holmes v. Multimedia KSDK, Inc., 395 S.W.3d 557, 560-61 (Mo. Ct. App. 2013) (quoting Alack, 923 S.W.2d at 337-38).

 [*P78]  Additionally, “[o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” Verni v. Cleveland Chiropractic College, 212 S.W.3d 150, 153 (Mo. 2007). To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member. Id. When an express declaration of intent is lacking, a strong presumption exists “‘that the third party is not a beneficiary and that the parties contracted to benefit only themselves.'” Id. (quoting Nitro Distributing, Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. 2006)).

 [*P79] 
In Missouri, the [***42]  primary rule of contract interpretation is to determine and give effect to the intent of the parties. State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 44 (Mo. 2017). Intent is determined by considering the plain and ordinary meaning of the contract language. Id. Each clause in a contract should be read in the context of the contract as a whole, and any interpretation that would render a provision meaningless should be avoided. Id. Additionally, the parties’ intentions should be “gleaned from the four corners of the contract” unless the contract is ambiguous, in which case a court may resort to considering extrinsic evidence. Kansas City N.O. Nelson Co. v. Mid-Western. Construction Co. of Missouri, Inc., 782 S.W.2d 672, 677 (Mo. App. 1989).

 [*P80]  Additionally, whether a contract is ambiguous presents a question of law. Alack, 923 S.W.2d at 334. “‘An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.'” Id. at 337 (quoting Rodriguez v. General Accident Insurance Co. of America, 808 S.W.2d 379, 382 (Mo. 1991)).

 [*P81]  Here, plaintiff acknowledged signing the Release at issue upon her arrival at Cross Country. In fact, she signed three such Releases—one for herself and one for each of the two minors who accompanied her. The operative language of the Release is as follows:

“4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY [***43]  TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO  [**596]   [****714]  ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.” (Emphasis added.)

Defendant maintains she was an intended third-party beneficiary of the Release in that she falls within the category of “other participants” and, as a result, plaintiff agreed to release her from liability for injuries plaintiff sustained while horseback riding at Cross Country, including those that occurred due to defendant’s negligence.

 [*P82]  Initially, plaintiff argues the Release fails to clearly express the intent to benefit defendant as a third party. To support this contention, she points to her own testimony that she “did not even know what she [was] signing” and the lack of testimony from anyone associated with Cross Country regarding their intent in entering the contract. Additionally, plaintiff maintains [***44]  the phrase “other participants” is ambiguous and could be reasonably interpreted as a “catch-all term” that means “’employees, agents, servants, and/or independent contractors of [Cross Country] who perform services which further [its] business'” and not, as defendant suggests, other paying customers who are similarly situated to plaintiff and defendant. We disagree and find the Release is unambiguous and clearly expresses an intent to benefit an identifiable class, i.e., “other participants,” of which defendant is a member.

 [*P83]  Looking as we must at the four corners of the parties’ agreement, it is clear that “other participants” were included within the list of individuals or entities to whom the parties to the agreement intended the release of liability to apply. In other words, there was an express intent to benefit “other participants” in the Release. Additionally, when looking at the agreement as a whole, it is clear that the phrase “other participants” refers to those individuals at Cross Country who were similarly situated to plaintiff and defendant, i.e., paying customers or guests who were engaging in the activities provided or offered by Cross Country. Although the term “participants” [***45]  is not defined in the Release, as defendant notes, the terms “participate,” “participation,” and “participants” are used throughout the document. Their use clearly reflects that these words were intended to refer to individuals visiting Cross Country for the purpose of engaging in its recreational activities, including horseback riding. The Release provides as follows:

“In consideration of being allowed to participate in any way, including but not limited to trail riding, competing, officiating, working for, recreating in any fashion while visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and activities, I *** the undersigned, acknowledge, appreciate, and agree that;

1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce the risk, the risk of serious injury does exist; and,

2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation; and,

3. I willingly agree to comply [***46]  with the stated and customary terms of participation. If, however, I observe any unusual significant hazard during my  [**597]   [****715]  presence or participation, I will remove myself from participation and bring such to the attention of the Company immediately; and,

4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.” (Emphases added.)

Additionally, signature lines on the Release required the “PARTICIPANT[‘]S SIGNATURE” or the signature of a parent or guardian for “PARTICIPANTS OF MINORITY AGE.”

 [*P84]  During her own deposition, plaintiff acknowledged that the Release used the phrase “other participants” and that she would characterize defendant as “another [***47]  participant” in the activities at Cross Country. We agree and find the language used in the Release is clear and that it unambiguously refers to an identifiable class of individuals that includes defendant.

 [*P85]  Plaintiff next argues the Release is deficient because it purported to relieve liability for nonreleasable claims, including “intentional torts, gross negligence, and/or activities involving the public interest.” She notes language in the Release stated it applied to “THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.” Plaintiff maintains the word “otherwise” encompasses those nonreleasable claims and, thus, renders the Release duplicitous, indistinct, uncertain, and ambiguous.

 [*P86]  To support her argument, plaintiff relies on Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 394 (Mo. Ct. App. 1999), involving an exculpatory clause that purported “to shield [a party] from ‘any claim based on negligence and *** any claim based upon *** other legal theory.'” There, the reviewing court noted “‘there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.'” Id. (quoting Alack, 923 S.W.2d at 337). It found that the exculpatory clause before it used general language by referencing [***48]  claims based on “‘any *** other legal theory,'” stating such language included “intentional torts, gross negligence or any other cause of action not expressly listed.” Id. Thus, because the contract at issue purported to relieve the respondent in the case of all liability but did not actually do so, it was duplicitous, indistinct, uncertain and, ultimately, ambiguous. Id.

 [*P87]  We find Lewis distinguishable from the present case. The language there was much broader than the language of the Release that plaintiff signed. Unlike in this case, the exculpatory clause in Lewis expressly referred to legal theories other than negligence. Additionally, we note other courts applying Missouri law have suggested that the same language that is at issue in this case was sufficiently clear and unambiguous. See Haines v. St. Charles Speedway, Inc., 689 F. Supp. 964, 969 (E.D. Mo. 1988) (finding a release was clear and unambiguous under Missouri law where it relieved liability for the “negligence of the Releasees or otherwise” (internal quotation marks omitted)); Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721  [****716]  [**598]  (Mo. Ct. App. 1995) (stating language that released claims “‘whether caused by the negligence of the releasees or otherwise'” would “clearly and unambiguously encompass[ ] the negligence of the party seeking to enforce the release” (quoting [***49]  Haines, 689 F. Supp. at 969)). In this instance, the Release plaintiff signed used the term “negligence” and did not expressly include references to any “other legal theory.” We find the Release was sufficient to notify plaintiff that she was releasing “other participants” in trail riding activities at Cross Country from claims arising from the “other participant’s” own negligence. See Alack, 923 S.W.2d at 337 (“The exculpatory language must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence.”).

 [*P88]  Finally, plaintiff also challenges the format of the Cross Country Release. Again, she relies on Lewis, wherein the court additionally found the exculpatory clause before it was not conspicuous and, thus, insufficient to provide notice of a release of liability for negligence claims. Lewis, 6 S.W.3d at 394-95. Specifically, the reviewing court noted the form at issue was titled as a “Rental Form” rather than a release, the form’s exculpatory clause was in approximately five-point font at the bottom of the form, and the plaintiffs “had to sign the Rental Form to receive ski equipment and had to do so while in a line.” Id.

 [*P89]  Again, the present case is distinguishable. Here, the Release documents [***50]  submitted by the parties consisted of two pages. As argued by defendant, the first page was separated into two equal parts. The top portion was labeled “Registration Form” and included several blank spaces for basic guest information. The bottom portion of the form was labeled “RELEASE OF LIABILITY—READ BEFORE SIGINING [sic]” and was separated from the top portion of the form by a dotted line. The titles of both documents appear to be in the same font size with the title of the Release being entirely capitalized. The release information is not relegated to only the bottom portion of the form but, instead, consists of several paragraphs and occupies half of the first page. Significant language in the Release is also capitalized for emphasis. The second page of the Release documents was similarly divided into two equal parts. However, both parts of the second page pertained to Cross Country’s Release. Plaintiff signed the Cross Country Release three times, once for herself and once for each of the minors accompanying her. Further, we note that although plaintiff claims she did not read the release, she did acknowledge that she was required to sign similar documents during previous visits [***51]  to Cross Country.

 [*P90]  Here, we find the Release at issue was unambiguous and conspicuous such that it sufficiently informed plaintiff that she was releasing other individuals participating in Cross Country’s trail riding activities—including defendant—from claims arising out of their own negligence. Plaintiff expressly assumed the risks associated with her horseback riding activities at Cross Country and, through the Cross Country Release she signed, relieved defendant of any duty to protect her from injury. Given the circumstances presented, the trial court committed no error in granting defendant’s motion for summary judgment.

 [*P91]  We note plaintiff has additionally argued on appeal that the trial court erred in granting summary judgment in defendant’s favor under Missouri law because defendant’s conduct was grossly negligent. She points out that, under Missouri law, “one may never exonerate oneself from future liability for intentional  [**599]   [****717]  torts or for gross negligence, or for activities involving the public interest.” Alack, 923 S.W.2d at 337. Further, plaintiff notes that in response to defendant’s motion for summary judgment, she made the following argument: “There is a genuine issue of material fact as to whether [***52]  Defendant acted grossly negligent in participating in a group trail ride with a sizeable group, including children, on a horse she did not trust, that had kicked one person prior, while intoxicated and riding too closely to Plaintiff.”

 [*P92]  In DeCormier v. Harley-Davidson Motor Co. Group, Inc., 446 S.W.3d 668, 671 (Mo. 2014), the Missouri Supreme Court stated that it would “enforce exculpatory agreements to protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule by alleging [a defendant was] grossly negligent because Missouri courts do not recognize degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has raised in this case both before the trial court and on appeal.

 [*P93]  As plaintiff notes, Missouri does recognize a separate cause of action for recklessness. Id. at 671-72.

“Conduct is in reckless disregard of another if the actor:

‘[A]ct[s] or fails to do an act which it is [the actor’s] duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of *** harm to the other but also involves a high degree of probability that substantial harm will result to [the other.]’ [Citations.]” Id. at 672.

“[R]ecklessness [***53]  is a distinct cause of action from negligence.” Throneberry v. Missouri State Highway Patrol, 526 S.W.3d 198, 208 (Mo. Ct. App. 2017). “Recklessness looks to the tortfeasor’s state of mind” and “is an aggravated form of negligence which differs in quality, rather than in degree, from ordinary lack of care.” Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 139 (Mo. Ct. App. 1999).

 [*P94]  Under the circumstances presented here, plaintiff cannot rely on a claim of recklessness to avoid enforceability of the Release, as she did not raise the claim before the trial court. SI Securities v. Bank of Edwardsville, 362 Ill. App. 3d 925, 933, 841 N.E.2d 995, 1002, 299 Ill. Dec. 263 (2005) (“Issues not raised in a complaint and points not argued in the trial court are waived on appeal.”).

 [*P95]  Additionally, the record reflects defendant raised plaintiff’s signing of the release and its express assumption of risk argument as an affirmative defense. In Missouri, “[t]o avoid an affirmative defense alleged in an answer, a plaintiff must plead specifically matters of affirmative avoidance.” Angoff v. Mersman, 917 S.W.2d 207, 211 (Mo. Ct. App. 1996); see also Warren v. Paragon Technologies Group, Inc., 950 S.W.2d 844, 845 (Mo. 1997) (stating that “[r]elease is an affirmative defense that must be pled in an answer” and once done requires a plaintiff to file a reply if he or she intends to assert an affirmative avoidance). “The plaintiff’s reply should distinctly allege the grounds of avoidance,” and “[m]atters of avoidance are not available to a party who does not plead them specifically.” Angoff, 917 S.W.2d at 211. “An affirmative [***54]  avoidance is waived if the party raising it has neglected to plead it.” Id.

 [*P96]  Here, plaintiff did not plead a cause of action based on “recklessness” either in her complaint or in responding to defendant’s answer and motion for summary judgment. As defendant points out, she also did not seek to amend her original pleading to include a claim of recklessness. Accordingly, we find plaintiff’s arguments  [**600]   [****718]  are forfeited and do not preclude summary judgment in defendant’s favor.

[*P97]  III. CONCLUSION

 [*P98]  For the reasons stated, we affirm the trial court’s judgment.

 [*P99]  Affirmed.

End of Document


Courbat v. Dahana Ranch, Inc., 141 P.3d 427 (Hawai’i 2006)

Courbat v. Dahana Ranch, Inc., 141 P.3d 427 (Hawai’i 2006)

141 P.3d 427 (Hawai’i 2006)

111 Hawai’i 254

Lisa COURBAT and Steven Courbat, Plaintiffs-Appellants,

v.

DAHANA RANCH, INC., Defendant-Appellee,

and

John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.

No. 25151.

Supreme Court of Hawai’i

July 10, 2006

As Amended on Grant of Reconsideration in Part Aug. 3, 2006. [*]

APPEAL FROM THE THIRD CIRCUIT COURT (CIV. NO. 01-1-0049).

[Copyrighted Material Omitted]

Andrew S. Iwashita, Hilo, on the briefs, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.

Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, Honolulu, on the briefs, for the defendant-appellee Dahana Ranch, Inc.

MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.

OPINION

LEVINSON, J.

[111 Hawai’i 256] The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, “the Courbats”] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).

On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) [1] do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) (Supp. 1994) [2] in finding that Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.

For the reasons discussed infra in section III. A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” [3] According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.

The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:

Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .

[Lisa]: When I felt that the horse[] was getting too close to the horses above me.

Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?

[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.

Q: [T]hose two horses, the guide’s horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?

[Lisa]: Yes.

Q: You recall which hind leg of the horse kicked you? Was it the right or the left?

[Lisa]: It would be the right one.

Q: And that was a horse which was ridden by the guide or the guest?

[Lisa]: The guide.

Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?

[Lisa]: Just before?

Q: Yes.

[Lisa]: Yes.

Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?

[Lisa]: No.

Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?

[Lisa]: Yes.

Nakoa described the same incident in a January 9, 2002 deposition:

[Nakoa]: . . . Everybody was facing the gate, the second gate…. And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and ask me about the horse.

Q: On which side of your horse was he at the time?

[Nakoa]: He was on the left side of me.

Q: And were you still moving or were you stopped?

[Nakoa]: We were walking.

….

Q: . . .[H]ad you passed Lisa along the way? ….

[Nakoa]: Because of the angle, she was off to my left.

Q: Still in front of you?

[Nakoa]: No. About the same.

….

Q: And when is the next time you notice[] Lisa’s horse before the injury takes place?

….

[Nakoa]: She was still on the left side of me.

Q: . . . [A]bout how far away do you estimate she was from your horse?

[Nakoa]: You know, 30 feet maybe….

Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?

[Nakoa]: Yes. The man was on my left and I was talking to him.

….

Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?

[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.

Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and since the incident has complained of ongoing pain and injury to her leg.

The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.

On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.

The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia : (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.

The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. [4]

II. STANDARDS OF REVIEW

A. Summary Judgment

We review the circuit court’s grant or denial of summary judgment de novo….

[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn there from in the light most favorable to the party opposing the motion. [Hawai’i Cmty. Fed. Credit Union v. Keka, 94 Hawai’i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted). Querubin v. Thronas, 107 Hawai’i48, 56, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) (internal citation omitted) (some brackets in original).

B. Interpretation Of Statutes

The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).

Furthermore, our statutory construction is guided by established rules:

When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists….

In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool. Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted). State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).

III. DISCUSSION

A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.

The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).

The Intermediate Court of Appeals held in Beerman v. Toro, 1 Hawai’i App. 111, 118, 615 P.2d 749, 754-55 (1980), that the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F.Supp.2d 1265, 1269-70 (D. Hawai’i 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1.As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.

1. The elements of a deceptive trade practice claim for recision of a contract

To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” violates HRS § 480-2.

“Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369 (10th Cir. 1943))), we have not articulated a more refined test.

HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§] 45(a)(1)[(2000)],” [5] in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” [6] Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984), developed a three-part analytical test for “deception,” [7] which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice[] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[] the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves ” ‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.’ ” Novartis Corp. v. FTC, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); FTC v. Crescent Publ’g Group, Inc., 129 F.Supp.2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F.Supp.2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F.Supp.2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. [8]

Given our obligation under HRS §§ 480-3 and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. [9]

2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.

The Courbats do not allege that the waiver itself is deceptive; rather, they urge that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. [10] Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. [11] Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.

The application of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Hawai’i 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.’ ” Amfac, Inc., 74 Hawai’i at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Hawai’i App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment ” ‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.’ ” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). ” ‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.’ ” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence.“) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.

Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.

B. The Consequences,On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice

If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence on the part of the tour operator, does not apply to the present matter.

Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.

1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.

If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.

HRS § 663B-2(b) provides in relevant part that “[n]othing in this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.

2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.

a. The waiver was validly executed.

Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Hawai’i App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.

“The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosps., 71 Hawai’i 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Hawai’i App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Hawai’i 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Hawai’i 1980). Furthermore, ” ‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.’ ” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 (Ind.Ct.App. 1982)).

“[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, ” ‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.’ ” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F.Supp. 356, 378 (M.D.N.C. 1993)).

The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.

In Krohnert, the ICA defined the public interest

as involving some or all of the following characteristics:

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

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

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

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

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

[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents. 4 Hawai’i App. at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M.Ct.App.1981) (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 445-46 (1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp.2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). (FN12) Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S.Ct. 148, 57 L.Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir.1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y.App.Div.1981), and hospitals, see Tunkl, 32 Cal.Rptr. 33, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga.App. 387, 287 S.E.2d 99, 101 (1981) Belshaw v. Feinstein, 258 Cal.App.2d 711, 65 Cal.Rptr. 788, 798 (1968).

Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.

Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F.Supp. 730, 736 (D. Hawai’i 1993). “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.’ ” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); see also Wheelock, 839 F.Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Hawai’i App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.

In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.

b. The scope of the Courbats’ waiver does not extend beyond negligence claims.

The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because ” ‘[e]xculpatory provisions are not favored by the law and are strictly construed against parties relying on them,’ ” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F.Supp. at 378); see also Wheelock, 839 F.Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate the public interest, rendering the clause void).

IV. CONCLUSION

In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.

DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS.

DUFFY, J.

I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.

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Notes:

[1] HRS ch. 480 provided in relevant part:

§ 480-2 …. (a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.

(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

….

§ 480-3 …. This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes ….

….

§ 480-12 …. Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.

§ 480-13 …. (b) Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:

(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and

(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit. Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Hawai’i Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Hawai’i Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Hawai’i Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Hawai’i Sess. L. Act 79, §§ 1 and 5 at 127-28.

[2] HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Hawai’i Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:

§ 663B-1 …. As used in this [chapter], unless the context otherwise requires:

“Engages in an equine activity” means riding . . . or being a passenger upon an equine ….

….

“Equine activity” means:

….

(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and

….

“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity….

“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.

“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;

(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

(3) Certain hazards such as surface and subsurface conditions;

(4) Collisions with other equines or objects; and

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.

“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.

§ 663B-2 …. (a) In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.

(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:

….

(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury ….

(Some brackets in original and some omitted.)

[3] The rules and waiver stated in pertinent part:

In order for us to keep our ride from being a “Nose To Tail Trail Ride[,”] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.

RULES AND REGULATIONS

FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE

….

PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO

….

DO NOT FOLLOW ONE ANOTHER

….

WAIVER

I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawai[]i and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.

I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.

(Emphasis in original.)

[4] On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).

[5] 15 U.S.C. § 45(a)(1) provides that “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”

[6] Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Hawai’i 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Hawai’i 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Hawai’i App. 420, 426, 651 P.2d 1228, 1233-34 (1982).

[7] See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).

[8] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new…. [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few…. [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).

[9] Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F.Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.

[10] It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Hawai’i 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).

[11] If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Hawai’i 607, 619, 607 P.2d 1304, 1312 (1980) (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety…. [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.

[12] Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F.Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga.App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wash.App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F.Supp.2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F.Supp.2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).

———


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

Defendants are the company that booked the trip (Vail through Grand Teton Lodge Company) and the travel agent who booked the trip.

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

State: Wyoming

Plaintiff: Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Per-sonal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs

Defendant: Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc.

Plaintiff Claims: Negligence, Punitive damages

Defendant Defenses: Wyoming’s Recreation Safety Act

Holding: Mixed, mostly for the plaintiff

Year: 2009

Summary

Decision looks at the liability of the travel agency and the hotel that booked a rafting float trip where three people died. The only defenses of available were the Wyoming’s Recreation Safety Act which helped keep the lawsuit in Wyoming applying Wyoming law, but was ineffective in assisting in the defense of the lawsuit.

The rafting company is not part of this decision so probably the raft company settled with the defendants before the case was filed or this motion was heard.

Facts

Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. GTLC is organized under the laws of Wyoming and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.”

On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. They traveled via several vans to the rafting launch site at Deadman’s Bar. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria Urrutia. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years.

During the float trip, Raft No. 2 struck a log jam. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result.

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

The first issue was a choice of laws (jurisdiction and venue) provision in the agreement with the travel agency Tauck, which stated venue was to be in Connecticut. The plaintiff was arguing that the case should be moved to Connecticut, which is odd, because the plaintiff’s filed the case to start in Wyoming. However, since they sued in Wyoming, the plaintiff is still arguing that Connecticut law should apply.

Tauck argued the choice of law provisions was for its benefit, and it had the right to waive that provision in the agreement. The court found that Tauck had the right to waive a provision in the agreement that was there for its benefit.

In Wyoming, a contract must be construed according to the law of the place where it was made. There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.”

The court held that the provision was for Tauck’s benefit because the living plaintiffs were residents of Georgia and Louisiana.

The court also stated, even it had not found for Tauck on this issue this way; it would have still used Wyoming law because of Wyoming’s strong public policy of recreational immunity.

Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of. The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.

Choice of law provisions are usually upheld by the courts; however, there are ways to get around them as this court explained.

The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.

The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation providers in Wyoming:

Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.

The court then reviewed the Wyoming’s Recreation Safety Act. The plaintiff’s argued the Wyoming’s Recreation Safety Act did not apply for three reasons.

First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants.

Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act.

Third, they assert that federal law preempts the Act.

The court found the first argument was already resolved in its analysis of jurisdiction above.

The second argument was the Wyoming’s Recreation Safety Act did not apply to the defendant Tauck, because it was a travel agent in Connecticut and not a “provider” as defined under the act. The court found that Tauck was a provider under the act because as part of its package. Provider is defined as “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.”

The final issue was the argument that the state law was pre-empted by federal law. The argument was based on the concessionaire agreement the defendant had with the NPS. Although the concession agreement with the NPS provided for visitor safety, there was nothing in the agreement showing intent to pre-empt the Wyoming’s Recreation Safety Act.

The court then looked to see if the Wyoming’s Recreation Safety Act provided a defense in this case. The court first defined Inherent Risk under Wyoming law.

‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”

[As you can see, the definition of inherent risk is not a broad definition it narrowly defines the risks to those intrinsic or integral to the activity. That leaves out thousands of risks created by man such as steering the raft, water releases, choosing the run, etc. which are probably not protected by the act.]

Outside of the inherent risks, to thwart the act, the plaintiff only needs to argue the risk was not inherent and the case would proceed to trial because the Wyoming’s Recreation Safety Act does not provide a defense to any risk not inherent in the sport. Because the court could not determine what risks were inherent what were not, it held the Wyoming’s Recreation Safety Act did not apply in this case.

In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park, and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. Complex braiding obscures the main channel, and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.

The court moved on to Tauck’s motion for summary judgment because as a tour agency is was not liable for the negligent acts of third parties, it dealt with. The law supports that argument. “As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control.”

However, that general rules does not apply if a contract with the travel agency or marketing state the travel agency will undertake a duty. (Always remember Marketing makes Promises Risk Management has to Pay for.)

Here the court found the promotional materials were marketing and did not rise to the level to be promises to be kept.

The plaintiff also argued Tauck took on a greater duty to the guests when it undertook the duty to have the guests sign the defendant GTLC’s acknowledgment of risk forms. That duty included duty to inform the guests of the risk associated with river rafting. However, the court could find nothing in Tauck’s action indicating it was accepting a greater duty when it handed out the assumption of the risk forms.

The plaintiff’s created a fraud argument. Under Montana’s law:

To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation

The plaintiff’s argued that the defendants made all sorts of statements and advertising that the float trip was a leisurely scenic trip. The channel the raft guide took was not leisurely but was a dangerous channel by some authorities. However, the issue was, did the defendants intentionally made the statements about the river to induce the plaintiffs to the trip.

The defendants wanted the plaintiff’s claim for punitive damages dismissed. In Wyoming, punitive damages appear to be a claim much like negligence. The punitive damages claim was based on the same allegations that the fraud claim was made, that the defendants misrepresented the nature of the float trip.

Punitive damages in Wyoming are:

We have approved punitive damages in circumstances involving outrageous conduct, such as intention-al torts, torts involving malice and torts involving willful and wanton misconduct.” Willful and wanton misconduct is the intentional doing, or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.”

Failing to advise the plaintiffs that the river was running higher than normal because of the spring run off did not rise to a level to be reckless and willful misconduct. The one channel of several the one guide went down was a negligent decision, not a willful one.

So Now What?

Fairly simple, use a release. It would have stopped this lawsuit sooner. If the outfitter would have used a release, it could have protected the lodge and the travel agent. I’m sure the lodge is going to use one now, which will probably just muddy the water because of multiple releases and defendants.

There are very few statutes that provide any real protection in the outdoor recreation industry. Most, in fact, make it easier for the plaintiffs to win. The exception to the rule is a few of the Ski Area Safety Statutes.

Be prepared and do more than rely on a week statute.

What do you think? Leave a comment.

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

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

Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Personal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs, vs. Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc., Defendants.

Case No. 08-CV-139-J

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

2009 U.S. Dist. LEXIS 139788

October 1, 2009, Filed

COUNSEL: [*1] For Alexis R Rizas, individually and as the personal representative of the wrongful death beneficiaries, on behalf of John J Rizas, John Friel, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Elizabeth A Rizas, Ronald J Miciotto, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Linda Lewis Clark, James Clark, individually, Lawrence Wilson, individually, Joyce Wilson, individually, Plaintiffs: Mel C Orchard, III, Roy A Jacobson, Jr, LEAD ATTORNEY, SPENCE LAW FIRM Jackson, WY USA.

For Grand Teton Lodge Company, a Wyoming corporation, Defendant: Joe M Teig, LEAD ATTORNEY, Susan Combs, HOLLAND & HART, Jackson, WY USA; Maryjo C Falcone, Peter W Rietz, LEAD ATTORNEY, RIETZ LAW FIRM, Dillon, CO USA.

For Tauck Inc, a New Jersey corporation doing business in the state of Connecticut, also known as Tauck Tours Inc, also known as Tauck World Discovery Inc, Defendant: William M McKellar, LEAD ATTORNEY, McKELLAR TIEDEKEN & SCOGGIN, Cheyenne, WY USA.

JUDGES: ALAN B. JOHNSON, UNITED STATES DISTRICT JUDGE.

OPINION BY: ALAN B. JOHNSON

OPINION

ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendants’ [*2] motions for summary judgment. Tauck, Inc. filed five motions and Grand Teton Lodge Company (“GTLC”) filed one, all on July 22, 2009. After careful consideration of the arguments and evidence supplied by both Plaintiffs and Defendants, for the reasons discussed in detail below, the Court finds that a genuine issue of material fact exists regarding the inherent risk of the river float activity. In all other respects, the Court will grant the defendants’ motions for summary judgment.

FACTS

The Court relates the following facts in the light most favorable to Plaintiffs, who are opposing Defendants’ motions for summary judgment.

Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108, ¶ 9. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” Id. ¶ 24. This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. Id. ¶¶ 23, 24. GTLC is organized under the laws of Wyoming [*3] and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Id. ¶¶ 7, 8. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Id. ¶¶ 23, 24. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.” Plaintiff’s Resp. to Motion for Summary Judgment on Plaintiffs’ Claim for Fraud, Ex. 5.

On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. Stipulated Facts ¶ 27. They traveled via several vans to the rafting launch site at Deadman’s Bar. Id. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Id. ¶ 28. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria [*4] Urrutia. Id. ¶ 29. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years. Id. ¶ 30.

During the float trip, Raft No. 2 struck a log jam. Id. ¶ 32. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result. Further facts will be discussed as necessary to resolve each legal issue.

DISCUSSION

This Court has jurisdiction pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the plaintiffs and defendants. Vail Resorts was dismissed from this case for lack of jurisdiction on June 16, 2009. Plaintiffs are citizens of Maryland, Arizona, Louisiana, and Georgia. GTLC is incorporated in Wyoming, which is also its principal place of business. Tauk is incorporated in New Jersey, and its principal place of business is Connecticut.

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” [*5] Fed. R. Civ. P. 56(c); e.g., Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1144 (10th Cir. 2009). The Court must view all facts and make inferences from the evidence in the light most favorable to the non-moving party. E.g., Utah Animal Rights Coalition v. Salt Lake County, 566 F.3d 1236, 1242 (10th Cir. 2009). The Court may consider only admissible evidence. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998). See also Fed. R. Civ. P. 56(e)(1).

Choice of Law

Because the Court is sitting in diversity, it would normally apply Wyoming law. See Butt v. Bank of America, N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). In this case, however, Plaintiffs have raised a choice-of-law issue by urging this Court to apply Connecticut law. A federal court sitting in diversity applies the choice-of-law principles of the state in which it sits. Morrison Knudson Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n.12 (10th Cir. 2008). Accordingly, this Court will apply Wyoming choice-of-law principles.

Plaintiffs first contend that Connecticut law applies because Tauck and its clients signed a contract to that effect. Specifically, the contract states the following:

It is agreed by Tauck World Discovery and the Tour Member that all legal claims, actions and proceedings against Tauck World Discovery under, in connection with, resulting from or incident to a tour may be instituted, if at all, only in a state or federal court within the State of Connecticut, USA, to the exclusion of the courts of or in any other state or jurisdiction. It is further agreed that all such claims, actions and proceedings shall [*6] be governed by and decided in accordance with the laws of the State of Connecticut.

Plaintiffs’ Resp. to Motion for Summary Judgment on Plaintiffs’ Claims for Fraud, Ex. 2. Tauck counters by claiming that the choice-of-law provision was intended for its benefit, and therefore it can waive that provision. Furthermore, it points out that, if the contract is to be enforced, there are a number of other provisions that would benefit Tauck, such as the choice-of-forum provision in the excerpt above.

In Wyoming, a contract must be construed according to the law of the place where it was made. J.W. Denio Milling Co. v. Malin, 25 Wyo. 143, 165 P. 1113, 1116 (Wyo. 1917). There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.” E.g., Lanna v. Greene, 399 A.2d 837, 841 (Conn. 1978). See Takahashi v. Pepper Tank & Contracting Co., 58 Wyo. 330, 131 P.2d 339, 354 (Wyo. 1942). The question in this case is whether the choice-of-law provision was included for Tauck’s benefit.

The Court finds that it was. As far as the evidence indicates, none of the tour members or their survivors who are involved in this action are residents of Connecticut. [*7] The three plaintiffs who were also tour members, Mr. Clark and the Wilsons, are residents of Louisiana and Georgia, respectively. The residence of the three deceased tour members is not clear from the evidence submitted to the Court. Even if one of the three decedents were residents of Connecticut, that does not necessarily mean that the provision existed for that person’s benefit. Tauck drafted the provision at issue. The provision benefits Tauck by ensuring that any claims will be litigated in the forum most convenient to it, and under the law with which it is most familiar. Meanwhile, there is little or no benefit to any tour member who is not a resident of Connecticut. Even then, the choice-of-law provision would benefit the tour member by happenstance rather than by intention. Accordingly, Tauck may waive the choice of law provision, and has affirmatively stated that it has done so. Its waiver is further supported by the fact that it has never contended that suit is improper in this Court as a result of the choice-of-forum provision in the same contract.

Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due [*8] to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of Wyoming’s Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 through -123 (LexisNexis 2009). The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Wyo. Stat. Ann. § 1-1-122(a)(iii). Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.

It is this very policy of protecting these providers that renders the contractual choice-of-law provision invalid. The Wyoming Supreme Court has not answered the question of whether the Act represents so strong a Wyoming policy as to render invalid a contractual choice-of-law provision that would eliminate the Act’s application. This Court believes that Wyoming, like other states, would look to general contract principles to resolve this question. The Restatement (Second) of Conflict of Laws § 187 (1971) states:

(1) The law of the state chosen by the parties to govern [*9] their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.

(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either

(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or

(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.

The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract [*10] because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.

The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Wyo. Stat. Ann. § 1-1-122(a)(i) (LexisNexis 1989). In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” 1996 Wyo. Sess. Laws ch. 78, § 1. Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation [*11] providers in Wyoming:

The Court recognizes that its reading of the Wyoming Recreational Safety Act provides enormous protection to those in the business of providing recreational activities. . . . Consumers in Wyoming are now faced with an entire industry whose economic and consequent legislative power enables them to conduct business with only a passing thought to the safety of those who utilize their services. Despite this frightening prospect, the Court recognizes its place in our nation’s federal system of government. A court should not decimate the purpose of a legislative act, no matter how distasteful, when that purpose is clearly incorporated in the language of the act.

Cooperman v. David, 23 F. Supp. 2d 1315, 1321 (D. Wyo. 1998). Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.

The Court’s decision is consistent with precedent set by the Court of Appeals for the Tenth Circuit. In Electrical Distributers, Inc. v. SFR, Inc., one issue considered by the court was whether the trial court properly applied Colorado law where a covenant not to compete named Colorado as the applicable law, [*12] but was to be performed exclusively in Utah. 166 F.3d 1074, 1083-84 (10th Cir. 1999). Using the analysis that this Court has adopted above, the Court of Appeals determined that Utah’s strong interest in careful scrutiny of covenants not to compete controlled over any interest Colorado had in enforcement of a contract made within its boundaries, but to be performed outside them. Id.

Recreation Safety Act

Defendants rely on Wyoming’s Recreation Safety Act and claim that, pursuant to the Act, they owed no duty of care to any of the tour members. In response, Plaintiffs provide three reasons that the Act does not apply. First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants. Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act. Third, they assert that federal law preempts the Act. The Court will now address Plaintiffs second and third arguments in turn.

Wyo. Stat. Ann. § 1-1-122(a)(ii) defines “provider” as follows: “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.” Plaintiffs claim that Tauck is not a provider because of its position that it did not conduct the activity itself, but rather was a travel agent [*13] that procured the raft trip on behalf of its tour members. In doing so, however, Plaintiffs overlook the undisputed fact that Tauck offered the float trip as part of its tour package. Given that the Act includes offering a recreational opportunity in its definition of “provider,” it is obvious that Tauck is, in fact, a provider.

Plaintiffs’ preemption argument requires significantly more discussion. State law may be preempted by federal law in three ways. First, Congress may expressly preempt state law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996). Second, Congress may preempt an entire field by regulating that field so comprehensively that there is no room for state regulation. Id. at 31. Third, federal and state law may be in irreconcilable conflict, preempting state law even though Congress has not explicitly stated its intent to do so. Id. None of these three types of preemption occurred in this case.

The specific federal “law” that Plaintiffs believe preempt the Act is the concession contract between GTLC and the National Park Service. In particular, Plaintiffs point to the following language in the concession contract:

The Concessioner is responsible for providing a safe and healthful environment for its employees and clients as outlined [*14] in the Contract. The Concessioner will develop a Risk Management Program that will be approved by the Service in accordance with the Occupational Safety and Health Act (OSHA) and Service Guidelines. The Risk Management Program will be reviewed annually by the Service.

Plaintiffs’ Resp. to Motion For Summary Judgment on Wyoming Recreation Safety Act, Ex. 3. Plaintiffs claim that the concession contract “change[s] the character of the state law provisions encompassed by” the Act, and therefore results in an actual conflict between state and federal law. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, at 12. Plaintiffs also point to the National Park Service Management Policies 2006, which provides for visitor safety emergency response and emergency preparedness. That document refers several times to the safety of visitors to the park. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, Ex. 4.

Plaintiffs make an argument similar to that raised by the plaintiff in Carden v. Kelly, 175 F. Supp. 2d 1318 (D. Wyo. 2001). In Carden, this Court summarized the plaintiffs’ arguments as follows:

1) Plaintiff’s injuries occurred on federal land, the Bridger-Teton National Forest; 2) Defendants, in order to operate [*15] their business in the Bridger-Teton National Forest had to obtain a special-use permit from the Forest Service; 3) because Plaintiff’s injuries occurred on federal land, federal law, namely Forest Service regulations and the Defendants’ special-use permit apply; 4) the special-use permit contains provisions concerning negligence and injury to patrons of Forest Service permit holders, which Plaintiff claims requires the permit holders to inform their guests of the risks and have them sign a risk acknowledgment form; and 5) provisions in the Forest Service regulations requiring patrons of the Forest Service concessionaires to assume “usual” risks of activities within the National Forest conflicts with, and thus preempts, the Wyoming Recreation Statute.

Carden, 175 F. Supp. 2d at 1322. The Court determined that, although Congress had the authority to pre-empt the Recreation Safety Act on federal lands, it did not do so. Id. at 1322-26.

In the current case, the Court will follow Carden‘s sound reasoning. The Management Policies and the concession contract cited by Plaintiffs do broadly emphasize the Park Service’s interest in public safety, but does not indicate any intent to preempt Wyoming tort law. “Courts do not ‘lightly attribute [*16] to Congress or to a federal agency the intent to preempt state or local laws.'” Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1204 (10th Cir. 2009) quoting Nat’l Solid Wastes Mgmt. Ass’n v. Killian, 918 F.2d 671, 676 (7th Cir. 1990).

Plaintiffs in the case at bar attempt to distinguish Carden by noting that the requirements in Carden were imposed by the Forest Service, while this case involves the Park Service. Plaintiffs do not point out how this fact is relevant, and the Court does not discern any. The Park Service was created to

promote and regulate the use of the Federal areas known as national parks . . . to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1. Its mission is therefore one of conservation, and the Court does not perceive any intent to impact state tort law. The Court finds that federal law has not preempted the Wyoming Recreational Safety Act.

It is now incumbent upon the Court to determine if the Act applies to the circumstances of this case and insulates the defendants from liability. The Act states, in relevant part,

(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport [*17] or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.

Wyo. Stat. Ann. § 1-1-123.

Past disputes regarding the Act’s application involve, as does this case, questions about what constitutes an “inherent risk.” “‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Id. § 1-1-122(a)(i). The Wyoming Supreme Court has had few occasions to address the determination of what is an inherent risk of a particular activity. One of the more recent cases arose as a certified question from this Court. Jackson Hole Mount. Resort Corp. v. Rohrman, 2006 WY 156, 150 P.3d 167 (Wyo. 2006). The [*18] question certified was: “When faced with motions for summary judgment in which there are no genuine issues of material fact, how should a court differentiate, as a matter of law, between ‘inherent risks’ . . . and non-inherent risks . . . ?” Id. at 168.

[The] general answer is that if such a motion is filed, the trial court must scrutinized the facts brought forward by the parties with great care. If the court can say that, given the evidence, this is an “inherent risk” and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it. On the other hand, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder).

Id. This formulation, of course, depends on properly characterizing the activity and risk. For example, in the current case, the activity may be characterized as a “scenic float trip”–as Plaintiffs do throughout their memorandum in opposition to summary judgment–or as “river rafting.” The particular [*19] risk may be described generically as falling out of the boat or, more specifically, as colliding with a log jam resulting in ejection from the raft.

Governing precedent demands that the activity and risk be described as particularly as possible. In Cooperman v. David, for example, the Court of Appeals for the Tenth Circuit stated that, “[w]hen attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the [injured person] was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record.” 214 F.3d 1162, 1167 (10th Cir. 2000). In this case, the activity is best described as river floating under the water conditions that were apparent when the tour members embarked. The risk is best described as the risk that the raft would encounter a log jam, ejecting one or more tour members into the river.

Applying the law from this point forward is somewhat more problematic because the precedent in this area is not entirely clear. In Cooperman, the court affirmed this Court’s grant of summary judgment in favor of the defendant because a loose saddle cinch was an inherent risk of the activity of horseback [*20] riding. Id. at 1169. The trial court received expert testimony that a slipping saddle was a risk inherent to horseback riding. Id. at 1168. There was also testimony that the particular saddle at issue was cinched too loosely, and an inference that the loose cinching caused the saddle to slip. Id. The Cooperman court said that, even with this evidence, the risk was inherent because a person cinching a saddle had to balance between doing so too tightly and too loosely. “This imprecision in the cinching of the saddle is ‘characteristic’ or ‘typical’ of and therefore ‘inherent in’ the sport of horseback riding.” Id. Critically, the court stated,

As part of the Coopermans’ burden of showing that [the provider] owed Dr. Cooperman a duty of care, the Coopermans must provide some evidence to explain why the saddle fell, which explanation is not inherent to the sport. . . . Thus, stating only that the cinch was not tight enough does not show that the risk was no longer inherent to the sport. The Coopermans have the burden of presenting some evidence on summary judgment that would raise a question of fact that the loosely cinched saddle was caused, not by an inherent risk, but rather by a risk that was atypical, uncharacteristic, [*21] not intrinsic to, and thus not inherent in, the recreational activity of horseback riding. The Coopermans have not met this burden.

Id. at 1168-69.

The current case presents certain parallels. It is undisputed based on the evidence before the Court that being ejected or otherwise falling out of a raft is generally an inherent risk of river floating. For example, Sheri Griffith, an outfitter and river guide, testified that it is an inherent risk that a person might “become a swimmer” during a float trip. Griffith Depo. 152. There is no testimony that contradicts her opinion. It is also undisputed that the rafting guide instructed the tour members that, if they were to end up in the river, the proper procedure was to float on their back until they could be recovered. L. Wilson Depo. 318; Hobbs Depo. 136. This is similar to the expert testimony in Cooperman that a slipping saddle is an inherent risk of horseback riding: it describes the risk in general terms without looking at the specific cause. Also like Cooperman, Plaintiffs in this case have not submitted admissible evidence that describes a specific cause of the injury, and shown that the particular cause falls outside of the realm of being an inherent [*22] risk. Following the Cooperman analysis, then, the Court would conclude that Plaintiffs have failed to demonstrate that a genuine issue of material fact exists regarding whether encountering a log jam resulting in ejection from the raft is an inherent risk of river floating.

But the Court must also consider Sapone v. Grand Targhee, Inc., 308 F.3d 1096 (10th Cir. 2002). In that case, a six-year-old girl was injured when her horse bolted. Sapone, 308 F.3d at 1098. The plaintiffs presented evidence from an expert that “(1) the instructions were inadequate, (2) the horse was too large, (3) headgear should have been provided, (4) the trail ride may have been too dangerous, and (5) her parents were not notified of the accident.” Id. at 1104. It is not entirely clear why these facts would affect the nature of the risk. The court concluded “that a reasonable jury might conclude that [the girl’s] injuries were the result of negligence that is not characteristic of, intrinsic to, or an integral part [of] horseback riding.” Id. at 1105. Two possible interpretations of this passage are that negligence is never an integral part of horseback riding, or that some negligence is an integral part, but not the negligent acts complained of in that case. The former interpretation would render the statute futile [*23] as a way to safeguard recreation providers against liability, so it is unlikely that the Court of Appeals intended that meaning. The latter interpretation is more plausible, but raises the difficult question of what types of negligence are inherent to a particular activity and which are not. In either case, a trial court or fact finder is confronted with the difficult task of determining whether negligence occurred in order to determine whether the defendant owed a duty.

In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Rutter Depo. Ex. 1. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. [*24] Complex braiding obscures the main channel and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.

Negligence

Tauck moved for summary judgment in its favor on Plaintiffs’ negligence claim. Tauck’s argument boils down to an assertion that it is essentially a travel agency, and therefore is not liable for any negligence committed by GTLC. Plaintiffs contend that Tauck is a common carrier, and therefore subject to a heightened duty of care. They also assert that Tauck assumed a duty to warn of dangerous conditions when it distributed a form entitled “Acknowledgment of Risk” on the way to the river.

As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control. E.g., Sova v. Apple Vacations, 984 F. Supp. 1136, 1140 (S.D. Ohio 1997).1 The general rule may not apply, however, in the face of contractual language to the [*25] contrary. In this case, Plaintiffs contend that Tauck’s promotional materials contained promises that Tauck would assume a certain duty. For example, they point to language in which Tauck states tour members will “enjoy VIP attention from our experienced Tauck Directors who are dedicated to making your trip the best it can be” and that “[o]nce you arrive at your Tauck Bridges destination, leave the day-to-day details to us–all you need to do is have fun with your family.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5-6. They compare this language to that relied upon by the court in Stevenson v. Four Winds Travel, Inc. to find that the plaintiff had a right to expect a warning of a slippery condition while on a tour. 462 F.2d 899, 906-07 (5th Cir. 1972).

1 The Wyoming Supreme Court has not yet addressed this question, but it would likely follow this general rule.

Stevenson, however, is distinguishable from the current case. First, the language in the promotional materials in Stevenson is considerably stronger than those distributed by Tauck. For example, the materials stated that guests would be “cared for by a carefully selected Four Winds Tour escort” and that the tour directors “know precisely what you will be seeing and doing every day.” Id. In contrast, Tauck’s materials state that trips “are enhanced by [*26] our experienced directors,” and that Tauck will “take care of all [arrangements] for you, so you can indulge in the joys of travel without any of the day-to-day hassles.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5. To the extent that these vague statements mean anything at all, it falls far short of a promise to assume a duty. In addition, there is no indication in Stevenson that there was a separate contract. In this case, however, Tauck’s “Conditions of Tour”–relied upon by Plaintiffs in its argument that Connecticut law is applicable–contains a provision in which Tauck disclaims liability for “any Damages, or any problems concerning any . . . supplier providing tour services [or] programs, . . . including but not limited to . . . negligence by any . . . other supplier providing tour services [or] programs.” Plaintiffs’ Resp. to Motion for Summary Judgment on Recreation Safety Act, Ex. 1. Courts have relied on similar disclaimers to bar liability for acts of third parties that are beyond the control of the tour operator because the disclaimers are evidence that the operator did not intend to assume a guarantee of safety, even if the disclaimer is not itself [*27] contractually binding. E.g., Sova, 984 F. Supp. at 1139-40 (collecting illustrative cases). Accordingly, this Court finds that, as a matter of law, Tauck had no duty, either by virtue of its position as a tour operator or assumed through its promotional materials.

Plaintiffs next contend that Tauck is a common carrier pursuant to the common law and Article 10, Section 7 of the Wyoming Constitution. That provision states: “All corporations engaged in the transportation of persons, property, mineral oils, and minerals products, news or intelligence, including railroads, telegraphs, express companies, pipe lines and telephones, are declared to be common carriers.” Plaintiffs then rely upon section 314A of the Restatement (Second) of Torts, which states that a common carrier has a duty to its passengers to take reasonable action “to protect them against unreasonable risk of physical harm,” and to render aid if they are harmed. Tauck contends that it is not a common carrier because it does not actually transport tour members during the river floating trip.

Tauck’s position has merit, and there is authority for the proposition that a tour operator is not a common carrier. E.g., Stafford v. Intrav, Inc., 841 F. Supp. 284, 287 (E.D. Mo. 1993). The Court need not resolve the question of whether Tauck is a common carrier, however, because even if it is in general, it was not transporting [*28] tour members at the time of the raft collision. The undisputed evidence is that the tour members, during the rafting trip, were being transported by GTLC, not Tauck. In short, the tour members were no longer subject to Tauck’s custody or control, and therefore Tauck owed no duty. See Id. (tour operator had no duty to warn of dangerous condition on premises not under its control).

This leaves the question of whether distribution of “Acknowledgment of Risk” forms resulted in an imposition of a duty on Tauck. Plaintiffs cite section 324A of the Restatement (Second) of Torts, which states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The Wyoming Supreme Court adopted this provision as reflected in subsection (a) in Ellsworth Bros., Inc. v. Crook, 406 P.2d 520, 524 (Wyo. 1965). Relying [*29] on the Restatement, Plaintiffs claim that “by requiring its Tour Directors to get guests to sign GTLC’s Acknowledgment of Risk form well in advance of arriving at the Lodge, Tauck undertook the duty to inform guests about risks associated with the raft trip.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 7.

This statement, however, assumes that by undertaking to distribute the “Acknowledgment of Risk” form, Tauck was undertaking the broader task of informing guests about risks associated with the raft trip. There is no evidence before the Court to support this assumption. The only evidence that Tauck undertook to do anything for GTLC is testimony that GTLC asked Tauck to present the form to those tour members who were to participate in the rafting trip. Rice Depo. 47.2 There is no testimony that suggests Tauck was asked, or agreed, to inform guests of all risks involved in the rafting trip.

2 There is some conflict in the record regarding precisely when the tour members were given the form, but that is not material for resolution of this issue.

The Court finds as a matter of law that Tauck did not owe a duty to the tour members to warn them of the conditions of the river or otherwise act to prevent their injuries. Tauck may not be found negligent on a theory of direct liability.

Joint Venture

The Court must next address Tauck’s [*30] contention that it may not be held vicariously liable for GTLC’s negligence because the two companies did not form a joint venture. Tauck argues that GTLC was simply a supplier, and that the two businesses did not jointly embark on a business venture. In Wyoming, a person alleging the existence of a joint venture has the burden to prove four elements:

(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Popejoy v. Steinle, 820 P.2d 545, 549 (Wyo. 1991) quoting Holliday v. Bannister, 741 P.2d 89, 93 n.1 (Wyo. 1987).

Considering the first element, that of an agreement, the Court finds that there is a genuine issue of material fact regarding whether Tauck and GTLC agreed to provide services. Plaintiffs have submitted a document entitled “Tour Operator Contract,” which governs the terms of the sale of room blocks and river float trips to Tauck. Plaintiff’s Resp. to Motion for Summary Judgment on Joint Venture, Ex. 5. Several witnesses, officials of Tauck, testified that they viewed GTLC as a supplier, not as a partner. Nevertheless, viewing [*31] the contract in the light most favorable to Plaintiffs, it is not unreasonable to characterize it as an agreement for the purposes of this joint venture analysis.

The Court also finds that a reasonable jury could find that Tauck and GTLC had a common purpose. This purpose was to sell tour members lodging and river float trips. Tauck’s purpose was somewhat broader, generally, because it sold lager tours of which the interaction with GTLC was a small part, but this does not remove the fact that GTLC and Tauck were united in purpose during this portion of the tour. Similarly, they both had a pecuniary interest in the enterprise. Tauck points out that GTLC received the same amount for its float tours whether its guests were members of a Tauck tour or individuals. But the arrangement nonetheless furthered GTLC’s financial goals by bringing significant numbers of guests to GTLC. Similarly, Tauck benefitted financially by featuring GTLC lodging and the float trip as part of its tour.

The Court does not find, however, that Tauck and GTLC had an equal right of control. Plaintiffs rely heavily on the fact that both business had the capability to cancel the float trip at their discretion, but that [*32] does not suggest an equal voice in the activity in question. For example, the evidence submitted to the Court indicates that the Tauck tour director brought the residents to the lodge and interacted with GTLC staff, but there is no indication that any Tauck official had the authority to direct any day-to-day activities. It had no input into the decision to hire Mr. Hobbs, the guide of Raft No. 2, or to direct the manner in which he conducted the rafting trip. Tauck could not have directed that the river guide take the group down a different part of the river, or terminated the guide’s employment. If GTLC had decided to terminate its river floating operations, Tauck would have been powerless to prevent it, aside from the scope of any service contract that was currently in place. Tauck and GTLC were two separate operations, and there is no evidence submitted to the Court that suggests otherwise. The Court finds, as a matter of law, that Tauck and GTLC did not have a joint venture.

The Court notes that, with no direct liability and no joint venture resulting in vicarious liability, Tauck is not liable for any claims of negligence.

Fraud

Plaintiffs have alleged that GTLC and Tauck committed [*33] fraud by enacting a scheme whereby the tour members were lured into taking a dangerous rafting trip as a result of GTLC and Tauck’s material misrepresentations regarding the level of danger. “To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation.” Garrison v. CC Builders, Inc., 2008 WY 34, 179 P.3d 867, 877 (Wyo. 2008). The false representation must be made knowingly: “One cannot be guilty of fraudulently or intentionally concealing or misrepresenting facts of which he is not aware.” Meeker v. Lanham, 604 P.2d 556, 559 (Wyo. 1979). Plaintiffs’ fraud claim fails because they have failed to provide evidence from which a reasonable jury could find by clear and convincing evidence that Defendants knowingly made a false representation of a material fact.

Plaintiffs first cite statements made in Tauck’s travel brochure discussing the rafting trip. “[T]he record shows that Tauck’s 2006 Brochure described the Snake River as a ‘meandering float trip,’ when in actuality, the Plaintiffs’ [sic] ended up on a whitewater raft trip with Class IV rapids.”
[*34] Plaintiffs’ Resp. to Motion for Summary Judgment on Fraud Claim, 8. Plaintiffs also cite statements in Tauck’s promotional materials stating that its tour directors are “knowledgeable professionals, with a wealth of information,” and that Tauck “does it all for you,” and that tour members can “leave all day-to-day details” to Tauck. Id.

For the most part, these promotional statements are “mere puffery” E.g., Alpine Bank v. Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009). The one arguable exception is the description of the activity as a “meandering float trip,” which may be sufficiently definite that a sensible person may be justified in relying on it to some degree. Even in that case, however, there is no indication that Tauck was aware that the river floating trip would be anything other than as described.

The key problem with Plaintiffs’ case is that there is no indication that this particular stretch of the Snake River was inherently dangerous on the day of the collision. Instead, the evidence, viewed in a light most favorable to Plaintiffs, indicates that the guide of the raft that collided with the log jam took the raft into an unsafe channel. For example, the deposition of Wayne Johnson, one of the river guides on June 2, 2006, indicates [*35] that he viewed the “Funnelcake” channel as dangerous on that date. Johnson Depo. 184. Mr. Reed Finlay, a river guide with a different company, testified at some length about the “Funnelcake” channel, specifically that it was dangerous on the date of the collision. Finlay Depo. 126-32. Indeed, it is undisputed that the float trip on the day of the collision was peaceful and uneventful until Raft No. 2 entered the channel and struck the log jam. J. Wilson Depo. 76-77; R. Rizas Depo. 102, 209, 219. In short, there is no indication that Tauck made a misrepresentation when the rafting trip was marketed as a “meandering float trip.”

Plaintiffs also rely on several statements made by employees of Tauck and GTLC before the raft trip. First, Mr. Wilson saw saw people white water rafting while on the bus trip into Jackson on June 1, 2006. When the he asked the tour director, Mr. Rice, if that was what their rafting trip would be like, Mr. Rice replied that the rafting trip would be a “leisurely, scenic float down the Snake River,” and not to worry. Mr. Rice also stated that Tauck had “never lost anybody.” L. Wilson Depo. 61-62. Second, while the groups were in the GTLC vans on the way to the [*36] river, Ms. Elizabeth Rizas asked the van driver about the safety of the float trip. The van driver responded by telling her that she was more likely to be in an accident in the van traveling to the river than on the float trip. J. Wilson Depo 39-40. There is also some evidence that the van driver also stated that they had “never lost anybody yet.” Id. 60.

Again, there is no evidence indicating that these statements are deliberately false. Much like Tauck’s advertising, there was no reason for Tauck or GTLC to believe that the rafting trip would be anything other than a leisurely, scenic float trip. Although Plaintiffs repeatedly rely on the fact that the river was flowing stronger and faster than usual because of the spring thaw, there is no evidence suggesting that this change in conditions precluded GTLC from being able to provide the safe and relaxing experience that the tour members were expecting. The additional fact that the float trip resulted in a devastating collision instead is not relevant when considering what Tauck and GTLC knew at the time they made the statements at issue.

Lastly, Plaintiffs contend that Defendants committed fraud by failing to inform them of the full nature [*37] of the risks on this particular float trips. The Court finds that any failure to inform the guest of these dangers is not actionable as a matter of law. First, there can be no fraud because there is no statement involved. The Court also relies on the Wyoming Supreme Court’s explicit refusal to adopt the tort of nondisclosure in Pittard v. Great Lakes Aviation, 2007 WY 64, 156 P.3d 964, 976 (Wyo. 2007). Plaintiffs have failed to establish the existence of a genuine issue of material fact that would preclude summary judgment in Defendants’ favor on the fraud issue.

Punitive Damages

GTLC has moved to dismiss Plaintiffs’ claim for punitive damages.3 Plaintiffs’ response is similar to their fraud argument, that is, that GTLC deliberately misrepresented the float trip as safe and leisurely.

3 Tauck has also moved for summary judgment in its favor on the punitive damages issue. The Court, however, has already determined that Tauck is not liable, either directly or vicariously. Accordingly, the Court’s discussion addresses only Plaintiffs’ claim as it applies to GTLC.

The Wyoming Supreme Court has set out the following standard regarding punitive damages:

We have explained that punitive damages “are to be awarded only for conduct involving some element of outrage, similar to that usually found in crime. . . . We have approved punitive damages in circumstances involving outrageous conduct, such as intentional torts, torts involving malice and torts involving willful and wanton misconduct.” Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo. 1986). Willful and wanton misconduct is the intentional doing, [*38] or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. Mayflower Rest. Co. v. Griego, 741 P.2d 1106, 1115 (Wyo. 1987). “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo. 1986) (internal citation omitted).

Cramer v. Powder R. Coal Co., 2009 WY 45, 204 P.3d 974, 979-80 (Wyo. 2009).

Plaintiffs reason as follows:

Defendants here should have communicated the true Snake River conditions to the Plaintiffs rather than misrepresent the conditions and intentionally take the guests who had signed up for a scenic float trip into something knowingly quite different. Defendant’s failure to communicate the details indicates “reckless disregard of the consequences, and under such circumstances and conditions that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability, result in substantial harm to another.” Danculovich [v. Brown], 593 P.2d [187,] 191.

Plaintiffs’ Response to Motion for Summary Judgment on Punitive Damages [*39]
, 11.

Plaintiffs’ contention that GTLC was aware that the float trip was materially more dangerous than previously represented to the tour members is not, as the Court has discussed, reflected in the record. Although it is undisputed that the level and flow of water was increased, and that this increase may heighten the risk of log jams or hide obstructions in the river, there is no evidence suggesting that the character of the river was altered to such an extent that it was willfully reckless to take passengers on the float trip.

The facts of this case are in stark contrast to those cases relied on by the Plaintiffs in which the Wyoming Supreme Court overturned trial courts’ grants of summary judgment in defendants’ favor on punitive damages. For example, the conduct alleged in Danculovich was drunk driving and speeding resulting in the driver losing control of the vehicle and killing the decedent. 593 P.2d at 190. The evidence in that case indicated that the defendant, who was driving the vehicle, had a blood alcohol content of 0.12%. Id. The court described the evidence of speeding as follows:

Radar clock of vehicle at 56 m.p.h. was made at north edge of business district. A witness estimated speed [*40] at 75 m.p.h. at city limits. Another witness estimated speed at 85 m.p.h. when vehicle passed him at point about .4 of mile before place of accident. Accident reconstruction expert estimated speed at place of accident to be minimum of 75 m.p.h. The speed limit within the city limits was 30 m.p.h. and beyond the city limits, 55 m.p.h.

Id. n.3. In Errington v. Zolessi, a treating physician conducted several cystograms of a patient following a laparoscopically assisted vaginal hysterectomy. 9 P.3d 966, 968 (Wyo. 2000). The cystograms initially indicated the presence of a fistula, and later confirmed it, but the doctor told the patient that she was healing normally, albeit slowly. Id. The Wyoming Supreme Court held that there was sufficient evidence that would allow a reasonable jury to find that the physician acted with reckless disregard for the patient’s safety. In either case, it is apparent that simply failing to advise the tour group members of the increased flow of the river does not rise to the level of reckless and willful misconduct. There is no question that the consequences of any negligence committed were devastating. But this Court must evaluate the question of outrageous conduct based on what was known [*41] at the time of the allegedly negligent act, not looking back at events with the benefit of hindsight. This is not to say that this conduct may not constitute simple negligence, but it does not warrant punitive damages.

IT IS ORDERED that Tauck’s Motion for Summary Judgment on Wyoming Recreational Safety Act, Docket No. 87, is DENIED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim of Negligence, Docket No. 81, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Joint Venture, Docket No. 84, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Fraud, Docket No. 90, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim for Punitive and Exemplary Damages, Docket No. 93, is GRANTED.

IT IS FURTHER ORDERED that Grant Teton Lodge Company’s Motion for Summary Judgment on Plaintiffs’ Claims, Docket No. 96, is granted in part and denied in part. Specifically, the motion is DENIED as it relates to application of the Wyoming Recreation Safety Act, and is in all other respects GRANTED.

Dated this day of October, 2009.

/s/ Alan B. [*42] Johnson

ALAN B. JOHNSON

UNITED STATES DISTRICT JUDGE


Expert testimony is needed when the activity is beyond the scope of the general knowledge of a juror in Connecticut.

In this case, the plaintiff’s claim failed because they needed any expert witness and the one they had hired was disqualified. Without an expert in horseback riding lessons, the plaintiff’s claims were dismissed.

Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

State: Connecticut, United States Court of Appeals for the Second Circuit

Plaintiff: Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis

Defendant: YMCA Camp Mohawk, Inc.

Plaintiff Claims: Negligence

Defendant Defenses:

Holding: For the Defendant

Year: 2015

Summary

Your expert witness must have the experience, education or background to be able to testify as to their findings. In states where an expert opinion is needed, like Connecticut, not having an expert means not have a case.

Here the expert witness hired by the plaintiff did not have the necessary qualifications, and the court would not allow his testimony. Because horseback riding and equine issues were outside of the scope of the normal juror in Connecticut, an expert witness was needed by the plaintiff. Without an expert, the plaintiff’s case was dismissed.

Facts

On July 18, 2011, Louisa Ellis fell from a pony while taking horseback riding lessons at YMCA Camp Mohawk. Ellis sustained injuries to her hand and elbow that required surgery and therapy. Appellants identified Andres, an employee of Robson Forensic, to investigate the claims and to provide expert testimony.

The plaintiff’s hired an expert witness to provide expert testimony on why the defendant was negligent. The court found the plaintiff’s expert was not qualified to render an expert opinion on the matter.

… Corey Andres, was not qualified to render an expert opinion regarding the standard of care for an equestrian course at the YMCA camp at which twelve-year-old Louisa was injured.

The trial court dismissed the plaintiff’s case because they could not prove their case.

The district court excluded Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding. Therefore, appellants’ failure to produce an expert where expert testimony was required led the district court to grant summary judgment.

The plaintiffs appealed.

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

Although the case was brought in the federal district court because the parties were from different states, the law of the state where the accident happened was the law used in the case. Since the accident occurred in Connecticut, Connecticut law was applied to the case.

Under Connecticut law, horseback riding was outside the general knowledge of jurors and thus required expert testimony for the jurors to make their decisions.

Connecticut courts have held, on similar facts, that the general public is no longer as familiar with horsemanship as it arguably was at the beginning of the twentieth century, and that expert testimony is necessary to establish a standard of care and a breach of that standard.

An expert witness is needed to show both the standard of care in the case and whether the defendant breached that standard of care.

The plaintiff hired Andres, an employee of Robson Forensic.

Andres claimed his expertise based on his membership in the American Camp Association (“ACA”) and his study of therapeutic education at Ohio State, University of Toledo, including a study pertaining to equestrian matters. Andres’s investigation concluded that YMCA was negligent in failing to provide complete and proper instruction as to how to fall from a horse in a way that minimizes injury.

The district court excluded “Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding.”

The district stated, and the appellate court agreed that:

Andres does not rise to the level of expertise required to opine on the matters at hand. Andres has practically no knowledge or experience relating to horsemanship — his resume makes no reference to any such knowledge, and his investigation merely points to three publications that he relied on when preparing his report. Andres’s resume instead highlights a wide array of fields and organizations in which he has obtained certifications or is a member. Appellants argue that Andres’s membership in the ACA broadly reaches all camp recreations. This broad qualification falls well short of the specialized knowledge that Federal Rule of Evidence 702 demands. The district court therefore did not abuse its discretion in its decision to exclude Andres’s testimony.

Because the plaintiff’s expert witness was excluded and could not testify, the plaintiffs could not prove their case.

Appellants’ failure to provide necessary expert testimony precludes them from presenting these claims under Connecticut state law. Thus, there are no issues of material fact raised to challenge the district court’s entry of summary judgment.

So Now What?

The courts have been given broader discretion to determine who can and cannot testify as an expert witness. The courts can also determine, even if the expert is qualified to testify, that the testimony they are going to give is not based on science.

In states where expert testimony is required or any state where you want to win, you need to hire expert witnesses who are going to qualify as an expert in their field and provide an opinion based on science, history, experience and real life.

What do you think? Leave a comment.

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Twenty years ago, the New Hampshire Supreme Court shows how you can trample common sense to find a release invalid.

Release was signed for a trail ride and plaintiff claimed she told guide his horse was getting ready to act out before it kicked her.

Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Brenda Wright

Defendant: Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 1995

Summary

Twenty-year-old New Hampshire Supreme Court decisions shows how convoluted a court can get when it decides a release will not be enforced. Court held the language in the release was confusing. However, to get that point the court had to not read the release I think.

Facts

The plaintiff signed up for a trail ride with the defendant. While on the ride she was kicked in the leg by another horse. She sued. On appeal she argued that her guide had failed to respond to indications that his horse, the one that kicked the plaintiff, was about to “act out.”

While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging that her tour guide had failed to respond to indications that his horse was about to “act out.”

[Every time I’ve been bit or kicked by a horse there was no warning. Sure, if a horse’s ears go back, there is a warning, but most times, horse 1, Moss 0. I wish there were indications that a horse was going to act out.]

Prior to suing she signed a release. The trial court dismissed her claim because of the release. She appealed.

New Hampshire has a two-tier court system. The trial court is called the Superior Court and appeals from the Superior Court are appealed to the New Hampshire Supreme Court. This appeal was decided by the New Hampshire Supreme Court.

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

The entire issue before the court was “whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence.”

The defendant argued the release “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding’“.

The Supreme Court looked at this decision in its analysis in a slightly different way.

This court will not enforce an exculpatory contract that contravenes public policy. “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.”

“Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.”

The court then read the release to determine if a reasonable person would have known about the exculpatory clause in the release. The court then worked hard to find a reasonable person would not.

A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” We will assess the clarity of the con-tract by evaluating it as a whole, not by examining isolated words and phrases.

We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case.

The language the court examined was in all caps so the language stood out from the surrounding language. However, the court stated that when the entire agreement was read, the all cap language was unclear. (?) The court’s determination that the clause was not clear was based on the word therefore.

In this case, the term “therefore” is significant. A common definition of “therefore” is “for that rea-son: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced by the term “therefore” cannot be understood without reading the antecedent language.

The court found additional language that it held confused the meaning of the release. The court concluded its analysis with this statement.

The exculpatory contract lacks a straightforward statement of the defendant’s intent to avoid liability for its failure to use reasonable care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions.

There was a dissent by two justices. Both who found the majority’s analysis was just a little ridiculous.

So Now What?

Sometimes your release is not going to win. In those cases, you are going to rely on your insurance company. In this case, the court worked hard to find little ways it could justify its desire to not support the release.

Possibly, this release might have had a better chance with a simple clear statement that by signing the release the signor could not sue for negligence. This release reads like it was written by an attorney training to kill trees rather than write documents for consumers.

But!

What do you think? Leave a comment.

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Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

Brenda Wright v. Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center

No. 94-266

SUPREME COURT OF NEW HAMPSHIRE

140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

August 22, 1995, Decided

SUBSEQUENT HISTORY: [***1] Released for Publication September 7, 1995.

PRIOR HISTORY: Merrimack County.

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff injured brought a negligence action against defendant tour company after being hurt while on a horseback riding tour. The injured appealed the decision of the Superior Court of Merrimack County (New Hampshire), which granted the tour company’s motion for summary judgment.

OVERVIEW: Before going horseback riding on the tour, the injured signed an exculpatory agreement that released the tour company from liability as a result of various occurrences. The tour company successfully argued in the trial court that the exculpatory agreement barred the injured’s suit. The court found that the issue of whether the injured understood the agreement presented an issue of fact. In assessing the clarity of the contract by evaluating it as a whole, the court found that the contract structure and organization obscured the exculpatory clauses and did not clearly relieve the tour company of responsibility for the sort of negligence at issue in the case. The court reasoned that one clause was understandable to relate to the inherent dangers of horseback riding and liability for injures that occurred for that reason. However, the court found that receiving an injury that would not have occurred but for a tour guide’s negligence was not an inherent danger. Because the contract did not put the injured on clear notice, the tour company was not entitled to summary judgment.

OUTCOME: The judgment was reversed, and the case was remanded.

CORE TERMS: horse, exculpatory, horseback riding, reasonable person, exculpatory provision, personal injury, own negligence, summary judgment, public policy, animal, exculpatory clauses, issue of fact, opportunity to prove, contravenes, inclusive, obscured, verb, tour guide, qualifying, notice, ridden, matter of law, entitled to judgment, contract language, misunderstanding, unabridged, exhaustive, quotations, prefaced, genuine

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants

Civil Procedure > Summary Judgment > Opposition > General Overview

Civil Procedure > Summary Judgment > Standards > Genuine Disputes

[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Torts > Negligence > Defenses > Exculpatory Clauses > Interpretation

Torts > Procedure > Settlements > Releases > Construction & Interpretation

[HN2] The court will not enforce an exculpatory contract that contravenes public policy. 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. Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.

Contracts Law > Contract Conditions & Provisions > Indemnity

[HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Contracts Law > Types of Contracts > Releases

Torts > Procedure > Settlements > Releases > General Overview

[HN4] The court examines the language of the release to determine whether a reasonable person in the plaintiff’s position would have known of the exculpatory provision. A reasonable person would understand the provision if its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. The court assesses the clarity of the contract by evaluating it as a whole, not by examining isolated words and phrases.

HEADNOTES

1. Contracts–Liability for Negligence–Public Policy

New Hampshire Supreme Court will not enforce an exculpatory contract that contravenes public policy.

2. Contracts–Construction–Ambiguity

The plaintiff’s understanding of the release presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.

3. Contracts–Liability for Negligence–Exculpatory Provision

A reasonable person would “understand” an exculpatory provision if its language clearly and specifically indicated the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.

4. Contracts–Liability for Negligence–Exculpatory Provision

Release language should be plain; a careful reading should not be necessary to divine the defendant’s intent.

5. Contracts–Liability for Negligence–Exculpatory Provision

The release language fails where it is obscured by qualifying terms and phrases and doesn’t put the plaintiff on clear notice.

COUNSEL: Craig, Wenners, Craig & Casinghino, P.A., of Manchester (Gary L. Casinghino and Gemma M. Dreher on the brief, and Mr. Casinghino orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Gregory D. H. Jones and Joseph M. McDonough, III, on the brief, and Mr. Jones orally), for the defendant.

JUDGES: JOHNSON, J.; THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.

OPINION BY: JOHNSON

OPINION

[*167] [**1341] JOHNSON, J. The question presented is whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence. The Superior Court (Manias, J.) found that the signed release barred the plaintiff’s negligence claim and granted the defendant’s motion for summary judgment. We reverse.

Before embarking on a horseback riding tour at the Loon Mountain Equestrian Center, owned and operated by the defendant, the plaintiff was asked to read, complete, and sign the following exculpatory [***2] agreement:

I accept for use, as is, the animals listed on this form and accept full responsibility for its care while it is in my possession. I have made no misrepresentation to Loon Mountain regarding my name, address or age. I agree to hold harmless and indemnify Loon Mountain Recreation Corporation and its owners, agents and employees for any loss or damage, including any that result from claims for personal injury or property damage related to the use of this animal.

I understand and am aware that horseback riding is a HAZARDOUS ACTIVITY. I understand that the above activity and the use of horses involves a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death from the use of this animal while participating in this activity.

I understand that it is not possible to predict every situation and condition of the terrain a horse will be ridden on; therefore, it is impossible to guarantee the horse I am riding will react safely in all riding situations. [*168]

I realize that it is mandatory that I wear a helmet at all times while horseback riding, and that I will obey all trail signs [***3] and remain only on open trails.

I therefore release Loon Mountain Recreation Corporation, its owners, agents and employees FROM ANY AND ALL LIABILITY FOR DAMAGES AND PERSONAL INJURY TO MYSELF OR ANY PERSON OR PROPERTY RESULTING FROM THE NEGLIGENCE OF LOON MOUNTAIN RECREATION CORPORATION TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any and all damages or injury of any kind which may result. (PLEASE SIGN: Brenda Wright/s)

I agree that there have been no warranties, expressed or implied, which have been made to me which extend beyond the description of the equipment listed on this form. I the undersigned, acknowledge that I have carefully read this agreement and release of liability, and I understand its contents. I understand that my signature below expressly waives any rights I have to sue Loon Mountain Recreation Corporation for injuries and damages.

The plaintiff signed this agreement after the fifth paragraph and at the bottom.

While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging [***4] that her tour guide had failed to respond to indications that his horse was about to “act out.” The defendant argued that the exculpatory contract barred the plaintiff’s suit and moved for summary judgment. The Superior Court (Manias, J.) granted its motion, and this appeal followed.

[**1342] On appeal, the defendant argues that we should uphold the trial court’s grant of summary judgment because the contract “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding.”

[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory [*169] evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.


Phillips v. Verax [***5] Corp., 138 N.H. 240, 243, 637 A.2d 906, 909 (1994) (brackets, ellipses, and quotations omitted).

[HN2] This court will not enforce an exculpatory contract that contravenes public policy. Audley v. Melton, 138 N.H.. 416, 418, 640 A.2d 777, 779 (1994). “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.” Barnes v. N.H. Karting Assoc., 128 N.H. 102, 107, 509 A.2d 151, 154 (1986). “Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” Id.

The plaintiff does not argue that the exculpatory contract contravenes public policy. Accordingly, we determine only whether “the plaintiff understood the import of the agreement,” and if not, whether “a reasonable person in [her] position would have known of the exculpatory provision.” Id.

The parties dispute whether the plaintiff understood the agreement to release the defendant from [***6] liability for its own negligence. [HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable. See Phillips, 138 N.H. at 243, 637 A.2d at 909; Barnes, 128 N.H. at 107, 509 A.2d at 154.

[HN4] We therefore examine the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107, 509 A.2d at 154; cf. Raudonis v. Ins. Co. of North America, 137 N.H. 57, 59, 623 A.2d 746, 747 (1993) (interpretation of insurance contract language a question of law; we construe terms as would reasonable person in insured’s position). A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” Barnes, 128 N.H. at 107, 509 A.2d at 154. We will assess the clarity of the contract by evaluating it as a whole, not by examining isolated [*170] words and phrases. See Chadwick v. CSI, Ltd., [***7] 137 N.H. 515, 524, 629 A.2d 820, 826 (1993).

We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case. See Barnes, 128 N.H. at 107, 509 A.2d at 154.

The defendant emphasizes the language of the agreement’s fifth paragraph, which states: “I therefore release [the defendant] from ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any . . . injury of any kind which may result.” (Emphasis added.) We find that when this clause is read within the [**1343] context of the entire agreement, its meaning is less than clear.

In this case, the term “therefore” is significant. A common definition of “therefore” is “for that reason: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced [***8] by the term “therefore” cannot be understood without reading the antecedent language.

The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that reason.” Being kicked by a horse is a danger inherent to horseback riding; receiving an injury that would not have occurred but for a tour guide’s negligence, however, is not.

The exculpatory phrase in the fifth paragraph is further clouded by the qualifying language that follows. Pursuant to the contract, the defendant is released from liability for its negligence “to include negligence in selection, adjustment or any maintenance of any horse.” If we parse these terms, they do not necessarily restrict the defendant’s release to liability for negligent selection, adjustment, or maintenance of any horse. The superfluity of the terms, however, serves to obscure rather than clarify. Moreover, one sense of the word “inclusive” is “covering or intended to cover all items . . . .” Webster’s, [***9] supra at 1143. A reasonable person reading the clause thus might conclude that the agreement relieved the defendant of responsibility for the enumerated types of negligence only.

[*171] Whether the tour guide’s failure to control his horse constitutes “the negligent . . . maintenance of any horse,” is unclear. Webster’s gives several definitions for the word “maintain,” the two most relevant being: (1) “to keep in a state of repair, efficiency, or validity: preserve from failure or decline” and (2) “to provide for: bear the expense of: SUPPORT.” Webster’s, supra at 1362. When read in the context of selection and adjustment, therefore, a reasonable person in the position of the plaintiff might understand “the negligent . . . maintenance of any horse” to relate to negligent upkeep rather than control.

The contract is also unclear with respect to injuries involving horses not ridden by the plaintiff. The first, second, and third paragraphs emphasize only the horse that the plaintiff “accept[s] for use.” We reject the defendant’s argument that the phrase “use of this animal,” used in the first and second paragraphs, “is merely an alternative expression for the activity of ‘horseback [***10] riding.'” We also reject the defendant’s contention that the phrase “use of this animal” does not limit the contract’s application to injuries involving the plaintiff’s horse because “[a] careful reading . . . reveals that it is part of a clause modifying plaintiff’s agreement to ‘hold harmless and indemnify [the defendant] for any loss or damage. . . .'” The Barnes test requires that release language be plain; a careful reading should not be necessary to divine the defendant’s intent.

In Audley, we concluded:

Quite simply, the general release language does not satisfy the Barnes requirement that the contract must clearly state that the defendant is not responsible for the consequences of his negligence. The release fails in this respect not because it neglects to use the word ‘negligence’ or any other special terms; instead it fails because no particular attention is called to the notion of releasing the defendant from liability for his own negligence. The general language in the context of the release simply did not put the plaintiff on clear notice of such intent.


Audley, 138 N.H. at 419, 640 A.2d at 779 (quotations and citations omitted). [***11] Whereas the release language in Audley failed because it was too general, the release language in the present case fails because it is obscured by qualifying terms and phrases. The cases are similar, however, because neither contract put the plaintiff “on clear notice,” id.

The exculpatory contract lacks a straightforward statement of the defendant’s intent [**1344] to avoid liability for its failure to use reasonable [*172] care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions. The defendant was not entitled to judgment as a matter of law.

Reversed and remanded.

THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.

DISSENT BY: THAYER

DISSENT

THAYER, J., dissenting: I would uphold the trial court’s grant of summary judgment because the exculpatory contract explicitly indicated an intent to release the defendant from liability for its own negligence. The contract in question purports to release the defendant from “ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE [***12] OF ANY HORSE.” The language clearly indicates an intent to release the defendant from liability for its own negligence. I agree with the majority that the use of the word “therefore” restricts the release to negligence associated with the inherent hazards of horseback riding. I do not agree, however, that the negligence alleged is not such a risk. The plaintiff alleged that the defendant’s employee had failed to properly control his horse, and that as a result, the horse “acted out.” Controlling a horse is an essential part of horseback riding. The possibility that someone will fail to exercise the proper control would seem to fall squarely within the category of dangers inherent in the sport.

The majority bases its holding in part on its interpretation of the phrase “to include.” In holding that the list prefaced by the words “to include” is meant to be exhaustive, the majority relies on a definition of the word “inclusive.” Such reliance is misplaced. The contract used the word “include” as a verb. The primary relevant definition of that word is “to place, list, or rate as a part or component of a whole or a larger group, class, or aggregate.” Webster’s Third New International [***13] Dictionary 1143 (unabridged ed. 1961) (Webster’s). “Inclusive,” however, is an adjective and its definition differs from the verb form of the word. See In re Dumaine, 135 N.H. 103, 107, 600 A.2d 127, 129 (1991). The use of the verb form of the word indicates that the listed types of negligence are “component[s] of a whole or a larger group,” Webster’s, supra, and that the list was not exhaustive.

The appropriate question, therefore, is whether the negligence alleged in this case is of the same type as those listed. The plaintiff [*173] alleges that the defendant’s employee failed to properly control his mount. This would seem to fall squarely within the type of negligence defined by the contract. That the horse causing the injury was not ridden by the plaintiff is irrelevant. The contract releases the defendant for negligence resulting from “the use of horses” and specifically from “NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE.” (Emphasis added.) While the contract does refer to the plaintiff’s horse on a number of occasions, it also refers to horses generally and to “any” horse. This language cannot be read to restrict the defendant’s release [***14] solely to injuries caused by the plaintiff’s horse. I disagree with the majority’s reading of the exculpatory contract. Therefore, I respectfully dissent.

BROCK, C.J., joins in the dissent.


Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

Ellis v. YMCA Camp Mohawk, Inc., 615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis, Plaintiff-Appellant, -v.- YMCA Camp Mohawk, Inc., Defendant-Appellee.

14-3460

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

615 Fed. Appx. 697; 2015 U.S. App. LEXIS 16057

September 10, 2015, Decided

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1] Appeal from a judgment of the United States District Court for the District of Connecticut (Thompson, J.).

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403 (D. Conn., Aug. 11, 2014)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-A claim that a summer camp operator was negligent in offering horseback riding instruction required the support of expert testimony, as the intricacies of horseback riding technique and horsemanship were no longer within the bounds of ordinary knowledge or experience of judges and jurors; [2]-The proffered expert witness was not qualified under Fed. R. Evid. 702, as he claimed a generalized familiarity with camp education but had practically no knowledge or experience relating to horsemanship.

OUTCOME: Judgment affirmed.

CORE TERMS: expert testimony, summary judgment, state law, standard of care, specialized knowledge, horsemanship, expertise, juror, horseback riding, expert witness, issues of material fact, qualification, familiarity, membership, diversity, resume, equestrian, pony

COUNSEL: FOR APPELLANT: Megan L. Piltz, Sabatini and Associates, LLC, Newington, Connecticut.

FOR APPELLEES: Renee W. Dwyer and Katherine L. Matthews, Gordon, Muir and Foley, LLP, Hartford, Connecticut.

JUDGES: PRESENT: RALPH K. WINTER, JOHN M. WALKER, JR., DENNIS JACOBS, Circuit Judges.

OPINION

[*697] SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Louisa Ellis and Elizabeth Ellis (“Appellants”) appeal from the judgment of the United States District Court for the District of Connecticut (Thompson, J.), dismissing [*698] on summary judgment their diversity action alleging negligence against YCMA Camp Mohawk, Inc. (“YMCA”). Appellants argue that the district court abused its discretion in determining that their expert, Corey Andres, was not qualified to render an expert opinion regarding the standard of care for an equestrian course at the YMCA camp at which twelve-year-old Louisa was injured. Appellants also argue that the district court erred in determining that all of the issues presented require expert testimony. We assume the parties’ [**2] familiarity with the underlying facts, the procedural history, and the issues presented for review.

On July 18, 2011, Louisa Ellis fell from a pony while taking horseback riding lessons at YMCA Camp Mohawk. Ellis sustained injuries to her hand and elbow that required surgery and therapy. Appellants identified Andres, an employee of Robson Forensic, to investigate the claims and to provide expert testimony. Andres claimed his expertise based on his membership in the American Camp Association (“ACA”) and his study of therapeutic education at Ohio State, University of Toledo, including a study pertaining to equestrian matters. Andres’s investigation concluded that YMCA was negligent in failing to provide complete and proper instruction as to how to fall from a horse in a way that minimizes injury.

The district court excluded Andres’s expert testimony on the ground that he had limited experience in the field of horseback riding. Therefore, appellants’ failure to produce an expert where expert testimony was required led the district court to grant summary judgment.

[HN1] A grant of summary judgment is reviewed de novo to determine whether any genuine issues of material fact would bar summary judgment. [**3] Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 164 (2d Cir. 2005). [HN2] We review the district court’s evidentiary ruling under an abuse-of-discretion standard. See id. at 171-72. “Either an error of law or a clear error of fact may constitute an abuse of discretion.” Schering Corp. v. Pfizer, Inc., 189 F.3d 218, 224 (2d Cir. 1999) (internal quotation marks and citations omitted). [HN3] A district court’s qualification of an expert witness will only be overturned if it is manifestly erroneous. United States v. Barrow, 400 F.3d 109, 123 (2d Cir. 2005).

[HN4] In a diversity action, whether expert testimony is required is a matter of state law, whereas the admissibility of a given expert witness is governed by the Federal Rules of Evidence. See 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6263; see also Beaudette v. Louisville Ladder Inc., 462 F.3d 22, 27 (1st Cir. 2006). [HN5] Under Connecticut state law, expert testimony is required when a matter goes “beyond the ordinary knowledge and experience of judges or jurors.” LePage v. Horne, 262 Conn. 116, 809 A.2d 505, 511 (Conn. 2002). Connecticut courts have held, on similar facts, that the general public is no longer as familiar with horsemanship as it arguably was at the beginning of the twentieth century, and that expert testimony is necessary to establish a standard of care and a breach of that standard. Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 889 A.2d 829, 833-34 (Conn. App. Ct. 2006).

As the district court held, Appellants’ claims required the support of expert testimony. The intricacies of horseback riding technique and horsemanship [**4] are no longer within the bounds of ordinary knowledge or experience of judges and jurors. Questions [*699] such as whether the stirrups were improperly installed and whether the pony was of sufficient size to carry the rider are not questions that the average juror can decide based on past knowledge or experience. We therefore agree that Ellis needed expert testimony to show both a standard of care and a breach of that standard.

Andres claimed a generalized familiarity with camp education. However, [HN6] Federal Rule of Evidence 702 requires expertise based on specialized knowledge and experience, not a mere understanding derived from others’ publications. “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a); see also Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013). Andres does not rise to the level of expertise required to opine on the matters at hand. Andres has practically no knowledge or experience relating to horsemanship — his resume makes no reference to any such knowledge, and his investigation merely points to three publications [**5] that he relied on when preparing his report. Andres’s resume instead highlights a wide array of fields and organizations in which he has obtained certifications or is a member. Appellants argue that Andres’s membership in the ACA broadly reaches all camp recreations. This broad qualification falls well short of the specialized knowledge that Federal Rule of Evidence 702 demands. The district court therefore did not abuse its discretion in its decision to exclude Andres’s testimony.

Appellants’ failure to provide necessary expert testimony precludes them from presenting these claims under Connecticut state law. See LePage, 809 A.2d at 511. Thus, there are no issues of material fact raised to challenge the district court’s entry of summary judgment.

For the foregoing reasons, and finding no merit in Appellant’s other arguments, we hereby AFFIRM the judgment of the district court.


Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Between a poorly written release, an Equine statute that requires proof the rider assumed the risk and the “cavalier” attitude of the defendant; the plaintiff will proceed to trial.

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Wilberto Melendez

Defendant: Happy Trails and Riding Center, Inc.

Plaintiff Claims: Negligence and Recklessness

Defendant Defenses: Release and Pennsylvania Equine Liability Protection Act

Holding: For the plaintiff

Year: 2016

The plaintiff was part of a group ride. Upon arrival he was told, he had to sign a release which he did. At the office where the plaintiff signed, the release signs were posed as required by the Pennsylvania Equine Activities Immunity Act. During the ride, the plaintiff asked the guides if he could gallop the horse and was told no several times. Eventually at the end of the ride, the plaintiff was allowed to gallop his horse.

Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail. At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.

While galloping the horse, the stirrup broke causing the plaintiff to fall incurring injuries.

The defendant filed a motion for summary judgment based on the release signed by the plaintiff and the Pennsylvania Equine Activities Immunity Act. The court denied the motion because the issue of the stirrup breaking could be considered reckless under Pennsylvania law.

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

The decision first looks at releases or exculpatory agreements under Pennsylvania law.

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.

Under Pennsylvania, the language of the release must be clear in relieving notifying the possible plaintiff, he or she is releasing the defendant of negligence. “However, a valid exculpatory clause will nevertheless, be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”

As in most states, releases are not favored and must conform to contract law. However, the term “not favored” is a term of art rather than a term used to determine if the release will be valid.

Contracts immunizing a party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.”

In that regard Pennsylvania, courts have set up standards on how releases will be governed.

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by ex-press stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing immunity is upon the party invoking protection under the clause.

As in most other states, Pennsylvania does not allow a release to relieve a defendant for intentional or reckless acts. “Further, exculpatory clauses may not immunize a party for intentional or reckless behavior.

The plaintiff did not argue that the release was not valid. The court reviewed the release on its own and find it valid.

First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them.

Second, the agreement was between two private parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

The court also found Pennsylvania law allowed the use of releases for inherently dangerous activities. Horseback riding in Pennsylvania is an inherently dangerous activity.

The plaintiff’s argument centered on the inherent risks of horseback riding. Inherent, a limiting word, defines the risks that are part of horseback riding no matter what. Inherent risks are part of horseback riding and can rarely be reduced or modified by someone because of the horse. However, there are more than just inherent risks in any activity and the plaintiff argued that a stirrup breaking was not an inherent risk and not covered by the release or the statute.

How the bridle or saddle is attached to the horse is under the control of the stable, thus not an inherent risk of horseback riding in must states. How the horse responds; maneuvers or acts is an inherent risk of riding a horse.

Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment.

Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could not appreciate the risk and could therefore not assume it.

(For other articles on the use of “inherent” in a release see: Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release and 2015 SLRA – Inherent Risk: Should the Phrase be in your Release?)

The court looked at the issue and rephrased it to a contract analogy. A contract must state the intention of the parties. A release is a contract.

…the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before.

The court then looked at the issue and found that defective equipment was not an inherent risk of horseback riding. This means if you use the term “inherent risk” in your release to describe all of the risks, claims based defective equipment would not be covered by your release in Pennsylvania. However, the release in this case was written broadly so it was not an issue.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.”

Pennsylvania courts have held that a release protects against claims for inherent as well as non-inherent risks if written to include those risks, and this release was written broadly.

The plaintiff argued the release should be read narrowly because the release did not identify defective equipment as a risk to be covered. However, the court found that every risk needs not be reviewed or identified in a release.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory agreement. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use.

The next point the plaintiff argued was the actions of the defendant amounted to recklessness and as such voided the release. The court defined recklessness under Pennsylvania law as:

Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”

Pennsylvania uses the term recklessness to define acts of the defendant that exceed the scope of a release. The majority but not all states use the term gross negligence.

This argument the court did accept. The court found that it was the defendant’s responsibility to inspect the equipment, and the defendant could not provide any evidence of any inspection.

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident.

The court on this same topic went on looking at the facts to determine other reckless acts of the defendant. In that review, the court added a comment about the attitude of the defendant/owner of Happy Trails and described his attitude as “cavalier.”

He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness

Finding a lack of knowledge about the age or condition of the defendant’s equipment, no record of inspecting or maintaining the equipment and the attitude of the defendant allowed the court to reach a conclusion that the actions of the defendant would be found by a jury to be reckless. As such, a motion for summary judgment could not be granted if there were “genuine dispute as to any material fact.”

The next issue was the application of the Pennsylvania Equine Activities Immunity Act to the case. The court could find no other case law in Pennsylvania that looked at the application of the Pennsylvania Equine Activities Immunity Act to defective equipment. Consequently, the court had to interpret the statute to see if the language of the statute covered defective equipment.

The Pennsylvania Equine Activities Immunity Act like most equine liability protection acts provides immunity to horse owners, stables, etc., for the actions of the animals. (Since Equine Acts have been created, they have been 100% effective. No horses have been sued. Lawsuits against horse owners have increased.) However, the Pennsylvania statute places a burden on the stable or horse owner to prove knowledge of the risk for the immunity to apply.

Most equine protection acts are written to say that when on a horse, or at places where horses, llamas, mules, etc., are, you assume the risk of the actions of the animal. By assuming the risk, the defendant owner is immune from liability for the plaintiff’s injuries. The Pennsylvania statute is different. The Pennsylvania statute states “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.”

This requirement puts a burden upon the horse owner to provide additional education to the rider.

The court looked at the definition of assumption of risk as defined in the Restatement of Torts, which found four different definitions or as the Restatement defines them doctrines of assumption of the risk.

The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.”

The first type of assumption of risk the court found that applied here was express assumption of risk. Express assumption of risk occurs when the plaintiff has consented to the risk. Usually, this consent is given by writing, if written property as part of a release.

The second type applicable in this case was implied assumption of the risk. Implied assumption of the risk has no exactness to the risk assumed. The plaintiff knows there is risk, and the defendant hopes the plaintiff knows of the explicit risk that may injure the plaintiff or that caused the plaintiff’s injuries. If the plaintiff had no knowledge of the risk, then the plaintiff cannot assume the risk.

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”

In this case, there was no evidence that the plaintiff knew of the risk. That risk was of equipment failure that the stirrup would break. Consequently, the plaintiff could not assume the risk.

Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.”

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge.

Because the risk that injured the plaintiff was outside of the risks assumed by the plaintiff, the defense of assumption of the risk did not apply. As such, the Pennsylvania Equine Activities Immunity Act did not provide the defendant with any protection.

With the release not valid and the Pennsylvania Equine Activities Immunity Act not providing any protection both defenses of the defendant failed. The defendant’s motion for summary judgment was denied.

So Now What?

This case would not have meant anything if the plaintiff had simply fallen off the horse. Both the release and the Pennsylvania Equine Activities Immunity Act would have prevented recovery if a claim had even been made.

But broken equipment always creates a different issue. Here it created an issue of whether the actions of the defendant were reckless and proved the plaintiff did not assume the risk.

Another important issue is courts put into their decision the facts they find persuasive or at least interesting.  There were several facts in the decision that did not alter or affect the decision on its face, but important enough for the court to identify them anyway. I always find these facts as instructional and a good indication of something that was not enough for the judge to argue but important anyway.

I also believe that they may not have any legal value, but if written into the decision by the judge, they had to have an impact on the judge’s thinking, and consequently, those issues did affect the outcome of the case.

In this decision those facts included:

After his group arrived, Plaintiff went into the stable’s office to register. Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part….

Combined with the next sentence:

An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. Plaintiff signed the agreement.

Meaning, the plaintiff was not told in advance he was going to be required to sign a release.

Another one was the plaintiff being told galloping was too dangerous yet he was eventually allowed to gallop his horse.

On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail.

Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal.

If galloping the horse was too dangerous earlier, what changed? More importantly, galloping the horse led to the broken stirrup which led to the injury.

And then there are the straight out in your face statements a court rarely makes.

Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal.

If this statement or something like it has been at the beginning, you would have known immediately that the defendant was going to lose. Never walk into a courtroom looking like the bad guy and never give the court proof, such as this, that you are.

For other Equine Liability Act articles see:

$1.2 M award in horseback riding fatality in Wyoming                                     http://rec-law.us/1fE4ncB

$2.36 M awarded to boy kicked by horse during inner-city youth program   http://rec-law.us/1lk7cTP

A specific statute, a badly written release and an equine liability statute sink instructors and business in horse riding accident.                                                                                             http://rec-law.us/SJZCkU

Decisive Supreme Court Decision on the Validity of Releases in Oklahoma                      http://rec-law.us/19gxvkT

Equine laws stop suit against horse, outfitter still sued                                    http://rec-law.us/XjgJvw

Good News ASI was dismissed from the lawsuit                                               http://rec-law.us/131HKWH

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release         http://rec-law.us/1nvfCV5

Hawaii’s deceptive trade practices act sends this case and release back to the trial court                                                                                                                                                http://rec-law.us/Z3HdQj

Indiana Equine Liability Statute used to stop litigation                                     http://rec-law.us/12UFp1N

Lying in a release can get your release thrown out by the court.                   http://rec-law.us/11ysy4w

Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant                                                             http://rec-law.us/1ZicaQs

Parental control: should you, are you accepting responsibility for kids and when you should or can you not.                                                                                                                             http://rec-law.us/1fteMth

Release saves riding school, even after defendant tried to show plaintiff how to win the case.  http://rec-law.us/14DC7Ad

What do you think? Leave a comment.

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Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Wilberto Melendez, Plaintiff, v. Happy Trails and Riding Center, Inc., Defendant.

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

CORE TERMS: trail, summary judgment, exculpatory, recklessness, equine, stirrup, stable, immunity, genuine, horse, horseback riding, recreational, animal, material fact, skiing, ride, assumption of risk, faulty, broken, ski, rider, inherent risk, exculpatory clause, riding, sport, skier, enumerate, counter, rental, entity

COUNSEL:  [*1] For Wilberto Melendez, Plaintiff, Counterclaim Defendant: Robin A. Feeney, LEAD ATTORNEY, FINE & STAUD LLP, PHILADELPHIA, PA.

For Happy Trails and Riding Center, Incorporated, Defendant, Counterclaim Plaintiff: Dennis M. Marconi, Barnaba & Marconi, LLP, Trenton, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

On September 30, 2014, Plaintiff, Wilberto Melendez, filled a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, lnc.1 (Doc. 1). The Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of fact discovery, Defendant filed a Motion for Summary Judgment (Doc. 19) and supporting brief (Doc. 20) on October 29, 2015. Plaintiff filed a Brief in Opposition (Doc. 22) and Defendant filed a Reply. (Doc. 23). Oral argument on the matter was held on April 4, 2016.

1 Defendant points out that the business is owned and operated by Randolph Bennett, d/b/a Happy Trails Stables, and was incorrectly pleaded as Happy Trails Riding [*2]  Center, Inc. For the purposes of this motion, the error, if any, is immaterial and the opinion will refer to Defendant as “Defendant” or “Happy Trails.”

The motion is now ripe for decision. For the reasons set forth below the Court will deny Defendant’s motion in its entirety.

II. Statement of Undisputed Facts

In accordance with Local Rule 56.1, Defendant submitted a Statement of Material Facts in Support of its Motion for Summary Judgment, (Doc. 20), as to which it contends that there is no genuine dispute for trial. Plaintiff submitted a response, a Counter Statement of Facts, (Doc. 22), with the result being that the following facts have been admitted, except as specifically noted:

Plaintiff, Wilberto Melendez, went to Defendant’s stable on May 31, 2014, for the purpose of going horseback riding. (Doc. 20, ¶¶ 1, 2). After his group arrived, Plaintiff went into the stable’s office to register. (Id. at ¶ 5). Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part:

AGREEMENT FOR PARTICIPATION AND\OR VOLUNTEERS [sic] I RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE [sic] OF RISK:

IN CONDERATION [sic] FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT [*3]  OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING, AND ALL RELATED ACTIVITIES.

….

1. I understand and acknowledge that the activity I am voluntarily engage [sic] in as a participant and/or [sic] bears certain know [sic] risk [sic] and unanticipated risks which could result in jury, [sic] death, illness, or disease, physical or mental, or damage to myself, to my property, or to spectators or other third parties. I understand and acknowledge those risk [sic] may result in personal claims against “HAPPY TRAILS STABLES” or claims against me by spectators or other third parties.

1. [sic] The nature of the activity itself, including the possible risks to you the rider.

A. The animal may be startled by unforeseen or unexpected noises from other animals, people, vehicles, activities and as a result you the rider may be hurt or injured should the animal react to said noises or activity, by running, bucking, rolling, or kicking, etc.

B. That you as the rider realizes [sic] that the animal is reacting to your physical instructions, conduct, and verbal instructions and commands, and therefore, the animal will respond in accordance with your reactions or commands. However, there are [*4]  times when the animal may be confused or distracted during course [sic] of your instructions and/or commands.

C. You the rider understands [sic] that an animal may kick or bite you the rider, or you the pedestrian, and that other animals which may be on tour, could kick or bite you the rider and/or pedestrian.

D. You the rider are aware that physical conditions of the trails may cause injury or risk to you, should these physical conditions such as low tree limbs, bushes, or other type of natural growth come in contact with animal [sic] or yourself.

2. I hereby release and discharge Happy Trails Stables, instructors, trail guides, stable managers, employees, owners of the horses and related equipment and land utilized for Happy Trails Stables activities, hereinafter referred to as the “Released Parties,” from any and all claims, demands, or cause of action that I, or any of my heirs, successors or assigns, [sic] may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence of the released parties.

3. I further agree that I, my heirs, successors, or assigns, [sic] will not sue or make claim [*5]  against the Released Parties for damage or other loses sustained as a result of my participation in Happy Trails activities.

….

4. I understand and acknowledge that Happy Trails activities have inherent dangers that no amount of cares, [sic] caution, instruction, or expertise can eliminate and I expressly and voluntarily assume all risk of personal injury or death sustained while participating in “Happy Trails Stables” activities weather [sic] or not caused by negligence of the Released Parties ….

….

6. I hereby expressly recognize that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence of the Released Parties. I also assume the risk of the equine activities pursuant to the [sic] Pennsylvania law.

(Id. at ¶¶ 5, 11; Doc. 20-7) (emphasis original). An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. (Doc. 20, 5). Plaintiff signed the agreement. (Id. at ¶ 8). In addition to the agreement, there were signs posted inside the office, outside [*6]  the office, and by the stable which read “You assume the risk of equine activities pursuant to Pennsylvania Law.” (See id. at ¶¶ 12-15; Doc. 20-8).

After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. (Doc. 20, ¶ 17). Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. (Id. at ¶¶ 19, 21). On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. (Id. at ¶¶ 22, 23). Plaintiff was told it was too dangerous to do on the trail. (Id.). At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. (Id. at ¶ 26). Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal. (id. at ¶¶ 27-29).

Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. (Doc. 22 at 1). Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax. (Id. at 3).

III. Standard of Review

Through summary adjudication, the court may dispose of those [*7]  claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality, ….[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record…or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences [*8]  should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

IV. Analysis [*9]

Plaintiffs complaint alleges that Defendant was negligent in providing broken or defective equipment–the stirrup–to Plaintiff, which directly resulted in his injury. (Doc. 1, ¶ 20). Defendant puts forth two arguments that it maintains are separate and independent grounds for summary judgment. First, Defendant argues that the agreement that Plaintiff signed prior to the horseback ride insulates Defendant from liability under these facts. (Doc. 20 at 9). Second, Defendant argues that, pursuant to 4 P.S. §§ 601-606 (hereinafter “Equine Activities Immunity Act,” “EAIA,” or “the Act”), Happy Trails is immune from liability as a provider of equine activities. (Id.).

A. Exculpatory Agreement

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)). However, a valid exculpatory clause will nevertheless be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. (quoting Topp Copy Prods., 626 A.2d at 99). Contracts immunizing a [*10]  party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (Pa. 1963). Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing immunity is upon the party invoking protection under the clause.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1196 (Pa. 2012) (quoting Topp Copy Prods., 626 A.2d at 99). Further, exculpatory clauses may not immunize a party for intentional or reckless behavior. Id. at 1202-03.

Defendant contends that the agreement Plaintiff signed is valid, enforceable, and encompasses broken equipment. (Doc. 20 at 13-16). Therefore, Defendant argues, Plaintiffs negligence [*11]  claim is barred and Happy Trails is entitled to summary judgment. (Id. at 16).

Plaintiff does not appear to argue that the agreement is not valid on its face. Nor should he, considering that the agreement easily satisfies the validity requirements under Chepkevich. First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them. Cf. Chepkevich, 2 A.3d at 1191 (finding that, in light of a statute that preserves the assumption of risk defense in the context of downhill skiing, it is “the clear policy of this Commonwealth . . .to encourage the sport and to place the risks of skiing squarely on the skier.”). Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities. See, e.g., id. (downhill skiing); Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110, 113-14 (Pa. Super. Ct. 2007) (snow tubing); Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492, 492-93 (Pa. Super. Ct. 1985) (auto racing); Nissley v. Candytown Motorcycle Club, Inc., 2006 PA Super 349, 913 A.2d 887, 889-91(Pa. Super. Ct. 2006) (motorcycle riding).

Second, the agreement was between two private [*12]  parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. See Chepkevich, 2 A.3d at 1190-91 (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment. (Doc. 22 at 11). Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. (Id. at 12-13). Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could [*13]  not appreciate the risk and could therefore not assume it. (Id. at 13).

Plaintiffs argument essentially states that the second element from Tayar –that “the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before. See Chepkevich, 2 A.3d at 1193-94.

In Chepkevich, a skier, Lori Chepkevich, sued a ski resort after she fell from a ski lift and was injured. Id. at 1175-76. She claimed her injury occurred because an employee promised to stop the ski lift briefly to allow Chepkevich to help a child board the lift and then the employee failed to do so. Id. Prior to the accident, Chepkevich had signed a document titled “RELEASE FROM LIABILITY” which stated, in pertinent part,

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to [certain enumerated risks]…. I agree to accept all these risks and agree not to sue Hidden Valley [*14]  Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 1176. The Pennsylvania Supreme Court first rejected Chepkevich’s argument that she did not assume the specific risk that caused her injury and instead found that a fall from a ski lift was an inherent risk in the sport of skiing. Id. at 1188. Therefore, the Court found that the suit was barred by the Skier’s Responsibility Act, 42 PA. Cons. Stat. Ann. § 7102(c), which preserves the common law assumption of the risk defense in the context of downhill skiing. Chepkevich, 2 A.3d at 1187-88.

Turning to an alternative ground for summary judgment–the release–the Chepkevich Court held that the term “negligence” did not require any definition or illustration to be given effect. Id. at 1193. Indeed, reversing the court below on that point, the Court found “no reason to require the drafters of exculpatory releases to provide definitions and context for commonly used terms such as ‘negligence.”‘ Id. The Court then found that the plain language of the release encompassed Chepkevich’s claim for negligence and therefore barred the claim. Id. at 1194-95. Because the Court had already found that the risk involved was inherent, the Court found it unnecessary to address the merits of Chepkevich’s [*15]  final argument “that the Release exempted Hidden Valley from liability only when its negligence gave rise to a risk otherwise inherent to the sport of skiing.” Id. at 1193-94.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.” Nissley, 913 A.2d at 892 (footnote and internal citations omitted). Thus, as long as the language of the exculpatory agreement applies, any inherent risk analysis is superfluous. The fact that the court in Chepkevich found it unnecessary to its holding to address the plaintiffs argument that non-inherent risks cannot be released in exculpatory agreements does not affect this analysis. As that court saw no need to overturn the language in Nissley, this Court sees no reason not to follow it.

As for enforceability of the agreement, in the realm of recreational [*16]  activities, Pennsylvania has upheld expansive language in exculpatory agreements. See, e.g., Nissley, 913 A.2d at 890-91 (upholding motor cycle club’s exculpatory agreement in a negligence action when the release stated that plaintiff “hereby give[s] up all my rights to sue or make claim”); Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. Ct. 1978), aff’d per curiam, 416 A.2d 1010 (1980) (upholding ski rental shop’s exculpatory agreement in a negligence action when the release stated that skier released defendant from “any liability”); Valeo, 500 A.2d at 492-93 (upholding race track’s exculpatory agreement in a negligence action where race car driver signed an agreement releasing “defendants ‘from all liability …for all loss or damage'”).

Here, Plaintiff signed an agreement that he knew to be a waiver. (Doc. 20-2 at 51-53; Doc. 20-7). Paragraph two of the agreement stated that Plaintiff released Happy Trails “from any and all claims, demands, or cause of action that I…may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence.” Further, paragraph six states that Plaintiff “hereby expressly recognize[s] that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the [*17]  Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence.” Plaintiff has alleged that Defendant was negligent in providing him defective equipment during his trail ride. The plain language of the agreement signed by Plaintiff releases Defendant from “all claims” including those “caused by negligence.” Thus, Plaintiffs claim, in as much as it is alleging that Defendant acted negligently, is encompassed by the exculpatory language of the agreement and therefore barred.2

2 This Court notes that there is some language in Chepkevich that seems to support Plaintiffs argument. As an aside, the Chepkevich Court states that “the risk [in this case] was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release.” Chepkevich, 2 A.3d at 1194. Plaintiff has pointed out that a broken stirrup is a very uncommon, and therefore unexpected, occurrence. (Doc. 22 at 12-13). Nevertheless, because Chepkevich does not give any standards for what type of risks fall beyond the realm of the plain language of an exculpatory agreement, this Court must turn to other cases. This Court finds  [*18]  Zimmer v. Mitchell and Ness  instructive.

In Zimmer, a skier, Joseph Zimmer, sued a ski rental company after the bindings on the skis he rented failed to release as they were supposed to during a fall, causing him substantial injury. Zimmer, 385 A.2d at 438. Zimmer argued that the rental company was negligent in renting him skis without testing and fitting the bindings. Id. at 440. The court granted the ski rental company’s motion for summary judgment based on an exculpatory agreement that Zimmer signed when he rented the skis that released the rental company “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment.” Id.

Thus, while the specific issue of a broken stirrup may be very uncommon, Pennsylvania courts have enforced exculpatory agreements in the case of a released party negligently providing the releasing party with defective or broken equipment.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory [*19]  agreement. See Chepkevich, 2 A.3d at 1193. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use. Plaintiff agreed to release Defendant from “all claims” including those that arose from Defendant’s negligence. Plaintiff cannot now protest that he did not know what “all claims” included.3

3 At oral argument, Plaintiff advanced a slightly different argument. Plaintiff argued, in effect, that because paragraph one of the agreement enumerates risks associated with horseback riding, the rest of the agreement is limited to those enumerated lists. This argument was also advanced in Chepkevich. See Chepkevich, 2 A.3d at 1194. There, the court rejected the plaintiff’s argument that “by enumerating risks inherent to downhill skiing and then requiring the skier to accept those risks, the Release only bars suits that arise out of the listed risks.” Id. The court found that the release, which stated that skiing “is a dangerous sport with inherent and other risks,” was not limited to the enumerated the risks, but clearly included “other risks.” Here, as in Chepkevich, Plaintiff’s argument [*20]  fails on textual grounds. It is true that the agreement, in paragraph one, lists some risks inherent to horseback riding. However, in paragraph two and six, the agreement states that Plaintiff relinquishes “any and all claims.” There is no limiting language in paragraph two or six that would indicate that Plaintiff was only relinquishing claims arising out of the enumerated risks in paragraph one.

Plaintiff finally argues that Defendant’s conduct amounts to recklessness and exculpatory agreements cannot immunize reckless conduct. (Doc. 22 at 14); see Tayar, 47 A.3d at 1202-03. Defendant concedes that the agreement only releases it from suits for negligence, not recklessness, and counters that its “conduct at most amounts to ordinary negligence.” (Doc. 23 at 10). “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar, 47 A.3d at 1200.

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable [*21]  man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Id. at 1200-01 (quoting Restatement (Second) of Torts § 500).

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. (Doc. 22-5 at 35-36, 39-40). It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident. (Id. at 13, 53-55, 58, 60). Happy Trails’ owner testified that he bought used saddles on the internet and also from individuals who walk into his business. (Id. at 18). He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. (Id. at 18-19, 58, 60). Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards [*22]  safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. (Id. at 32-33). Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness.

Defendant goes on to argue that Plaintiff failed to plead recklessness and that if “recklessness is the standard to apply in this case, plaintiffs compliant must be dismissed with prejudice.” (Doc. 23 at 10). This argument, however, runs counter to the holding in Archibald v. Kemble, 2009 PA Super 79, 971 A.2d 513 (Pa. Super. Ct. 2009).

Archibald involved a lawsuit stemming from Robert Archibald’s participation in a “no-check” adult hockey league. Id. at 515. In his complaint, Archibald alleged that another player, Cody Kemble, checked him into the boards of the ice hockey rink. Id. The complaint went on to say that

Cody Kemble’s negligence consisted of the following:

a. failing to assure that Robert Archibald was aware and/or warned that the check was going to be attempted before checking him into the boards;

b. failing to assure that Robert Archibald was willing [*23]  to be checked;

c. checking Robert Archibald when not safe to do so;

d. failing to understand and learn the rules, prohibition and limitation on any checking prior to participating in the non-checking league and game.

Id. at 516. First determining that Archibald would only be able to recover if he showed that Kemble acted recklessly, the Court went on to hold that recklessness “may be averred generally.” Id. at 517, 519. Thus, “merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations.” Id. at 519. Instead, “Archibalds’ cause of action was…subsumed within the negligence count pled in their Complaint.” Id.; see also M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 629 (E.D. Pa. 2015) (construing a separately pleaded recklessness claim “simply as a mechanism to recover punitive damages under [the] negligence claim” because “[t]here is no cause of action for recklessness under Pennsylvania law” and “recklessness is a heightened standard of care required to potentially recover punitive damages”).

Consequently, under Archibald, the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim. In his Complaint, Plaintiff alleged that, among other things, [*24]  Defendant “provid[ed] equipment or tack that defendant knew or should have known was faulty.” This statement encompasses the allegation that Defendant recklessly provided Plaintiff with defective or faulty equipment. The fact that Plaintiffs Complaint does not contain the word “reckless” is immaterial.

In sum, because the agreement that Plaintiff signed is only enforceable to immunize Defendant for its negligence, and not for its recklessness, and because there is a genuine dispute as to the material fact of whether Defendant acted recklessly in this case, the Court finds that the agreement is not a sufficient basis for summary judgment.

B. Equine Activities Immunity Act

Defendant next points to the Equine Activities Immunity Act, 4 P.S. §§ 601-606, as an alternative, independent basis for summary judgment. The EAIA limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that, as a provider of a qualifying equine activity who has complied with the EAIA’s statutory requirements, it is entitled to immunity from suit. (Doc. 20 at 10-11). Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside of the EAIA’s [*25]  protections. (Doc. 22 at 4).

The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such, this Court must engage in statutory interpretation. For this Court to interpret state law, it “must determine how the highest court of the State would decide an issue.” Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 249, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Pennsylvania interprets statutes according to the Statutory Construction Act of 1972, 1 Pa.Cons. Stat. Ann. §§ 1501-1991. “When interpreting statutory language, the Pennsylvania Supreme Court is guided by the ‘plain meaning’ rule of construction.” Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 371 (3d Cir. 1996) (citing Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 587 (Pa. 1982)). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa. Cons. Stat. Ann. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b).

The EAIA provides immunity for “an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity” including “[r]ecreational rides or drives which involve riding or other activity [*26]  involving the use of an equine.” 4 P.S. §§ 601, 602(b)(6). The EAIA, however, only provides immunity where signs of at least a certain size are “conspicuously posted on the premises…in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.” Id. at § 603. For covered entities in compliance with the signs requirement, “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.” Id. at § 602(a). Finally, the Act is clear that “[t]he immunity provided for by this act shall be narrowly construed.” Id. at § 606.

Plaintiff does not argue that Defendant, as a provider of recreational horseback riding activities, is not a covered entity under the statute. Additionally, Plaintiff does not argue that Defendant did not have the appropriate signs as prescribed under the EAIA. Plaintiffs sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment. (Doc. 22 at 6). Stated otherwise, Plaintiff argues that because he did not know he might be given defective or faulty [*27]  equipment, he could not knowingly assume the risk of such. Defendant counters that “[o]nce plaintiff entered the stables property and took part in recreational horse riding, he assumed the risk of harm associated with such activities.” (Doc. 20 at 11).

The EAIA states that “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.” 4 P.S. § 602(a). The Act, therefore, appears to preserve the common law assumption of risk doctrine in the context of equine activities. In delineating the contours of this doctrine, the Pennsylvania Supreme Court has looked to the Restatement Second of Torts. See Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341-42 (Pa. 2000). The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. See Restatement (second) of Torts § 496A cmt. c. The first, express assumption of risk occurs when lithe plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has [*28]  entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Id. (emphasis added).

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” Rutter v. Ne. Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1204 (Pa. 1981) (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”‘ Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 532 (Pa. Super. Ct. 1988) (alteration in original) (quoting Crance v. Sohanic, 344 Pa. Super. 526, 496 A.2d 1230, 1232 (Pa. Super. Ct. 1985)); See also Restatement (second) of Torts § 496D.4 Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996) (citing Struble v. Valley Forge Military Acad., 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. Ct. 1995)). Finally, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 572 (Pa. Super. Ct. 2000).

4 Of course, a plaintiff’s own assertion about whether he knew of and understood [*29]  the risk is not conclusive.

There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height, in the absence of any special circumstances which may conceal or appear to minimize the danger.

Restatement (Second) of Torts §496D cmt. d.

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could be inferred. The owner of Happy Trails testified that, in the approximately ten years he operated [*30]  the stable, he never remembered a single stirrup breaking. (Doc. 20-3 at 20-21). Given that it is not a common occurrence, it strains credibility to argue that a recreational participant would know that being provided broken equipment was likely.

Therefore, because there has been no showing that Plaintiff knew of the risk and voluntarily disregarded it, the EAIA provides no relief for Defendant.5

5 At oral argument, counsel for the Defendant conceded that, even under the broad interpretation of the Act that Defendant argued for, the Act would not immunize a covered entity for acts of recklessness or gross negligence. As this Court has already found that there is a genuine dispute as to the material fact of whether the Defendant acted recklessly, this provides an alternative ground for the finding that the Act does not provide immunity under these facts.

V. Conclusion

For the reasons stated above, the Court will deny Defendant’s Motion for Summary Judgment (Doc. 19). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW, THIS 26th DAY OF SEPTEMBER, 2016, upon consideration of Defendant’s Motion for Summary Judgment (Doc. 19), IT IS HEREBY ORDERED [*31]  THAT:

1. Defendant’s Motion for Summary Judgment (Doc. 19) is DENIED.

2. A telephone scheduling conference will be held on Wednesday, October 5, 2016, at 4:00 p.m. Counsel for Plaintiff is responsible for arranging the call to (570) 207-5750, and all parties should be ready to proceed before the undersigned is contacted.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

 


Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.

Failure of the plaintiff to find an expert witness in a case requiring an expert results in dismissal of the plaintiff’s complaint.

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

State: Connecticut, United States District Court for the District of Connecticut

Plaintiff: Louisa R. Ellis, PPA Elizabeth Ellis and Elizabeth Ellis

Defendant: Y.M.C.A. Camp Mohawk, Inc.

Plaintiff Claims: negligence and consequential damages

Defendant Defenses: Plaintiff cannot prove their case because they do not have an expert witness qualified to prove their claims.

Holding: Plaintiff

Year: 2014

The plaintiff attended the day camp of the defendants. One of the activities was horseback riding. For one of various reasons, the plaintiff was given a pony to ride rather than a horse. While riding the horse, the plaintiff fell over the shoulder or head of the horse suffering injuries.

The plaintiff sued for negligence and consequential damages (which is slightly confusing). The plaintiff hired an expert witness to prove their case that had no qualifications as a horse expert. The plaintiff’s expert was then disqualified. Because under Connecticut law, an expert witness was needed to prove the plaintiff’s case, the case was dismissed. The plaintiff appealed.

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

The court first looked at what an expert witness is and when a case requires an expert witness. An expert witness is a person that is qualified to prove testimony as an expert because of their knowledge, skill, experience, training or education. “…the expert’s scientific, technical, or other specialized knowledge [must] help the trier of fact to understand the evidence or to determine a fact in issue.”

The plaintiff’s expert had no “education, training, or experience related to horseback riding. In fact, there is no mention of “horses” or “horseback riding” anywhere in his curriculum vitae.” His work experience also provided no background in horses or horseback riding. Consequently, the plaintiff’s expert was not qualified to be an expert witness.

The next issue was whether or not an expert was needed to prove the case.

Thus, the issue the court must resolve is whether the answers to the questions presented by the allegations of negligence in the plaintiffs’ complaint are beyond the ordinary understanding, knowledge, or experience of the average judge or juror.

The court then looked at whether the average jury would know enough about horses to understand the case. This court looked at a prior ruling on the subject:

The court observed that “[w]e are well into the age of the automobile, and the general public in the twenty-first century is not generally as acquainted with horsemanship as it arguably was at the beginning of the twentieth century.” Therefore, the court concluded; it was necessary “for the plaintiffs to produce expert testimony to establish both the standard of care to which the defendant was to be held and a breach of that standard.”

The court reached this conclusion. “The services being provided by the defendant, i.e. horseback riding lessons to minor children, are specialized and beyond the ordinary understanding, knowledge and experience of jurors.”

Because the plaintiff did not have an expert witness, the plaintiff was unable to prove their case. The court upheld the dismissal of the case.

So Now What?

This is an extremely rare decision, in fact, the first I have ever read. It is paramount that if you are involved in litigation, you assist your defense attorney in finding the best expert witness you can for your case. That means two things.

1.                  The expert has the necessary qualifications to be an expert.

2.                The expert has the ability to convey their opinion to the jury in a way the jury will understand.

You can have the most qualified person in the world as your expert but if he or she is unable to convey the message in a way the jury will understand you may still lose your case.

What do you think? Leave a comment.

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Summer Camp, Day Camp, Horse, Pony, Horseback Riding, Expert Witness, Expert Qualifications,

 


Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

Louisa R. Ellis, PPA Elizabeth Ellis and Elizabeth Ellis, Plaintiffs, v. Y.M.C.A. Camp Mohawk, Inc., Defendant.

Civil No. 3:12cv515(AWT)

United States District Court for the District of Connecticut

2014 U.S. Dist. LEXIS 110403

August 11, 2014, Decided

August 11, 2014, Filed

COUNSEL: [*1] For Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis, Plaintiffs: James V. Sabatini, Megan Leigh Piltz, LEAD ATTORNEYS, Sabatini & Associates, Newington, CT.

For Y.M.C.A. Camp Mohawk, Inc., Defendant: Katherine L. Matthews, Renee Wocl Dwyer, LEAD ATTORNEYS, Gordon, Muir & Foley, Hartford, CT.

JUDGES: Alvin W. Thompson, United States District Judge.

OPINION BY: Alvin W. Thompson

OPINION

RULING ON MOTION FOR SUMMARY JUDGMENT

This action arises out of injuries suffered by the minor plaintiff, Louisa Ellis (the “Camper”), when she fell from a horse while participating in activities at a day camp operated by the defendant, Y.M.C.A. Camp Mohawk, Inc. (“Camp Mohawk”). The plaintiffs’ complaint consists of two counts, one for negligence and one for consequential damages. Camp Mohawk has moved for summary judgment on both counts. For the reasons set forth below, the defendant’s motion is being granted.

I. FACTUAL BACKGROUND

On July 18, 2011, the Camper participated in a horseback riding lesson while attending Camp Mohawk’s day camp in Cornwall, Connecticut. During this lesson, the Camper was assigned a pony, named Geri, to ride. The plaintiffs claim that the Camper was given a pony rather than a horse because Camp Mohawk [*2] did not have enough horses for all of the campers to ride. At some point during the lesson, the Camper lost control of the pony and was thrown over the pony’s shoulder or head. The Camper allegedly had her hands caught in the pony’s reins when she fell.

The complaint alleges that the Camper’s fall, as well as the injuries and losses the plaintiffs have suffered as a result of the fall, were caused by Camp Mohawk’s negligence. Specifically, the plaintiffs list 10 ways in which they believe Camp Mohawk was negligent with respect to the Camper’s horseback riding lesson:

(a) In that the pony was of an insufficient size for the plaintiff to properly and safely ride;

(b) In that the plaintiff’s weight and/or height exceed the reasonably safe riding weight for the pony assigned to the plaintiff;

(c) In that the riding equipment on the pony (the stirrups) were improperly installed or fitted thereby rendering the pony unsafe for the plaintiff to ride;

(d) In that the pony was not adequately and/or properly trained thus rendering the pony unsafe and hazardous for the plaintiff to ride;

(e) In [*3] that the pony was of a disobedient disposition thereby causing the pony to be unsafe for riding by the plaintiff;

(f) In that the defendant failed to properly or adequately train and instruct its employees;

(g) In that the defendant failed to properly and adequately supervise the camp students including the plaintiff;

(h) In that the defendant failed to properly or []adequately instruct or teach the camp students including the plaintiff on how to safely and properly ride on a pony;

(i) In that the defendant failed to warn the plaintiff of the dangers and hazards associated with riding the pony; and

(j) In that the defendant could not have reasonably assumed that the plaintiff, a minor, possessed the experience and judgment necessary to fully appreciate the dangerous condition of the pony and/or the full extent of the risk involved.

(Complaint (Doc. No. 1), at 3-4.)

II. LEGAL STANDARD

A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); [*4] Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). Rule 56(a) “mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

When ruling on a motion for summary judgment, the court must respect the province of the jury. The court, therefore, may not try issues of fact. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is well-established that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge.” Anderson, 477 U.S. at 255. Thus, the trial court’s task is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined . . . to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224.

Summary [*5] judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is “genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248 (internal quotation marks omitted). A material fact is one that would “affect the outcome of the suit under the governing law.” Id. As the Court observed in Anderson: “[T]he materiality determination rests on the substantive law, [and] it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” Id. Thus, only those facts that must be decided in order to resolve a claim or defense will prevent summary judgment from being granted. When confronted with an asserted factual dispute, the court must examine the elements of the claims and defenses at issue on the motion to determine whether a resolution of that dispute could affect the disposition of any of those claims or defenses. Immaterial or minor facts will not prevent summary [*6] judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).

When reviewing the evidence on a motion for summary judgment, the court must “assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)). Because credibility is not an issue on summary judgment, the nonmovant’s evidence must be accepted as true for purposes of the motion. Nonetheless, the inferences drawn in favor of the nonmovant must be supported by the evidence. “[M]ere speculation and conjecture is insufficient to defeat a motion for summary judgment.” Stern v. Trs. of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997) (internal quotation marks omitted) (quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)). Moreover, the “mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which [a] jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.

Finally, the nonmoving party cannot [*7] simply rest on the allegations in its pleadings since the essence of summary judgment is to go beyond the pleadings to determine if a genuine issue of material fact exists. See Celotex Corp., 477 U.S. at 324. “Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact,” Weinstock, 224 F.3d at 41, if the movant demonstrates an absence of such issues, a limited burden of production shifts to the nonmovant, who must “demonstrate more than some metaphysical doubt as to the material facts, . . . [and] must come forward with specific facts showing that there is a genuine issue for trial.” Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quotation marks, citations and emphasis omitted). Furthermore, “unsupported allegations do not create a material issue of fact.” Weinstock, 224 F.3d at 41. If the nonmovant fails to meet this burden, summary judgment should be granted.

III. DISCUSSION

Camp Mohawk argues that summary judgment is appropriate here because expert testimony is required to establish the standard of care and breach of duty with respect to instruction in horseback riding, and the plaintiff has not offered [*8] a relevant opinion from a qualified expert.

A. Whether Expert Testimony is Required

“In this diversity action, the question of whether or not expert testimony is required to prove negligence is a question of [Connecticut] State law.” Conte v. Usalliance Federal Credit Union, Civ. No. 3:01-cv-463(EBB), 2007 U.S. Dist. LEXIS 82908, 2007 WL 3355381, at *3 (D. Conn. Nov. 8, 2007) (citing Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 27 (1st Cir. 2006) (“In a diversity action, whether expert testimony is required is a matter of state law[.]”)). The Connecticut Supreme Court has stated on multiple occasions that “[e]xpert testimony is required ‘when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.'” LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002) (quoting Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961)) (emphasis in original); see also Santopietro v. City of New Haven, 239 Conn. 207, 226, 682 A.2d 106 (“If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required.”); State v. McClary, 207 Conn. 233, 245, 541 A.2d 96 (1988) (holding that expert testimony is required when a matter is [*9] “manifestly beyond the ken of the average trier of fact, be it judge or jury”).

Thus, the issue the court must resolve is whether the answers to the questions presented by the allegations of negligence in the plaintiffs’ complaint are beyond the ordinary understanding, knowledge, or experience of the average judge or juror. The court concludes that the questions at issue here are such that the answers are beyond such understanding, knowledge and experience. The Connecticut Appellate Court reached a similar conclusion in Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 889 A.2d 829 (2006). The court in Keeney found that

the proper method of teaching a novice rider, the qualification necessary to be a competent and qualified instructor of a novice rider, whether to instruct such a rider to remove her or his feet from the stirrups, [and] where those stirrups should then be placed . . . are not matters within the common knowledge of the jury but, rather, are specialized matters unique to the profession of those teaching novice riders.

Id. at 376. These questions are either the same as or substantially similar to the majority of those raised by the plaintiffs in their complaint. See also Raudat v. Leary, 88 Conn. App. 44, 868 A.2d 120 (2005) [*10] (holding that expert testimony was required on the issue of whether a horse was one “that is incompletely broken or trained”) (internal quotation marks omitted)). In Keeney the court explained that “[t]he plaintiffs’ allegations in the present case are akin to allegations of professional negligence or malpractice . . . . because the defendant was rendering specialized professional service to the plaintiff.” Keeney, 93 Conn. App. at 375. The court observed that “[w]e are well into the age of the automobile, and the general public in the twenty-first century is not generally as acquainted with horsemanship as it arguably was at the beginning of the twentieth century.” Id. Therefore, the court concluded, it was necessary “for the plaintiffs to produce expert testimony to establish both the standard of care to which the defendant was to be held and a breach of that standard.” Id. at 376.

The same reasoning is applicable here. The services being provided by the defendant, i.e. horseback riding lessons to minor children, are specialized and beyond the ordinary understanding, knowledge and experience of jurors. Since Keeny, the general public has not become more familiar with horsemanship or [*11] the appropriate method for teaching minors how to ride horses. Therefore, the issues raised by the plaintiffs’ contentions as to all the ways in which Camp Mohawk was negligent require expert testimony.

The plaintiffs’ arguments to the contrary are not persuasive. The plaintiffs point to three issues they claim do not require expert testimony: “whether [the Camper] was too big to be riding Geri the pony to begin with”; “whether [the Camper’s] stirrups were properly adjusted prior to beginning her lesson”; and “whether Geri the pony was disobedient.” (Pl.’s Mem. Opp. Mot. Summ. J. (Doc. No. 48) (“Pl.’s Mem.”), at 10-11.) In support of this contention, the plaintiffs point to excerpts of deposition testimony by a number of witnesses that included substantially similar statements. However, the mere existence of a lay opinion regarding a particular issue does not obviate the necessity of an expert opinion on that same issue, if an expert opinion is required in the first place. None of the deponents cited are the plaintiffs’ expert. Therefore, their testimony does not suffice to create a genuine issue of material fact as to these issues.

B. Whether the Plaintiffs’ Expert is Qualified

The defendants [*12] argue that because expert testimony is required on the issues raised by the plaintiffs’ contentions, summary judgment should be granted because the only expert the plaintiffs have identified is not qualified to give an expert opinion on those issues. The court agrees.

Under Federal Rule of Evidence 702 a witness may serve as an expert if he or she “is qualified as an expert by knowledge, skill, experience, training, or education.” Among other requirements, “the expert’s scientific, technical, or other specialized knowledge [must] help the trier of fact to understand the evidence or to determine a fact in issue.” Id. The plaintiffs have disclosed Corey Andres of Robson Forensic as their expert. His expert report contains a description of his education and experience. He has no education, training, or experience related to horseback riding. In fact, there is no mention of “horses” or “horseback riding” anywhere in his curriculum vitae.

In 1998, Andres received a Bachelor’s of Education with a major in therapeutic recreation and a minor in psychology. He received a Master’s of Education with a major in therapeutic arts in 1999. In 2005, Andres received a Master’s of Arts in educational [*13] policy and leadership; in connection with that degree, he participated in the Principal Licensure Cohort Program. His work experience is comprised of working as a graduate teaching assistant from 1998 to 1999 (where his focus was community recreation programming), working as a 4th and 5th grade teacher from 2001 to 2002, and working as an intervention specialist teacher at a high school in Ohio from 2002 to the present; in that capacity he leads a department of 36 professionals that serve special needs students. Since 2010 he has also been an associate at Robson Forensic, Inc.

In high school and college, Andres was involved with football, lacrosse, track, tennis and various intramural sports, in addition to being a certified lifeguard. He worked at a summer camp in 1995 instructing skills and techniques of golf, basketball, baseball, waterfront activities and tennis. He subsequently worked at camps in a number positions during the period from 1995 to 2008 and taught weightlifting and lacrosse. He has coached lacrosse and also served as a weight room supervisor, giving instructions on proper lifting techniques and exercises.

His resume indicates that his work for Robson Forensic, Inc. [*14] has involved providing technical investigations, analysis reports and testimony in connection with commercial and personal injury litigation involving: school administration, child supervision, recreation and sports programing, coaching, camp supervision and administration, weight training and athletic conditioning.

The only indication that he has had any involvement whatsoever with horseback riding is the fact that at page 6 of his report he cites in footnotes three publications on which he has relied in preparing his report.

At issue in Keeney was whether the plaintiff’s riding instructor was negligent in providing an unsafe instruction to a novice rider. The court concluded that the trial court had not abused its discretion in precluding the proposed expert witness from testifying about the appropriate standard for a riding instructor to teach a young novice rider, explaining

The issue in this case, however, was whether Heather Keeney’s riding instructor was negligent in providing an unsafe instruction to this novice rider. The expert, although having been a certified horse riding instructor since 1973, testified that she had not trained young novice riders in more than twenty years, [*15] had taken no refresher courses in training students, had no specialized training in the use of lunge lines with novice riders, had never prepared any instructional or training materials for instructors, had never served on a safety committee and had never taught riding instructors. On the basis of this testimony, we cannot conclude that the court abused its discretion in precluding this witness from testifying as to the appropriate standard for a riding instructor to teach a young novice rider.

93 Conn. App. 372-73.

Andres falls far short of having the qualifications possessed by the proffered expert in Keeney. Because expert testimony is required for the plaintiffs to establish their case and they have failed to produce a qualified expert, they have failed to create a genuine issue of material fact as to any of the issues raised in the complaint, and the defendant is entitled to judgment as a matter of law.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment (Doc. No. 43) is hereby GRANTED.

The Clerk shall enter judgment in favor of defendant Y.M.C.A. Camp Mohawk, Inc. as to all the claims in the complaint and close this case.

It is so ordered.

Dated this [*16] 11th day of August, 2014, at Hartford, Connecticut.

/s/ Alvin W. Thompson

United States District Judge


Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney

The easiest way to void a release is to say the release has no legal value or is not worth anything. Don’t be afraid to be honest with your clients.

Guido et al., v. Koopman, 1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350

State: California: Court of Appeal of California, First Appellate District, Division Five.

Plaintiff: Diana L. Guido et al.

Defendant: Charles Koopman

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the defendant

Year: 1991

This case would have been decided for the plaintiff but for one small fact. The plaintiff was an attorney. If the plaintiff wasn’t an attorney the screw ups by the defendant would have allowed any other plaintiff to win the case.

The plaintiff signed up with the defendant to take horseback riding lessons. When she did so she was given a release so sign. She was hesitant about signing the release. The defendant told her it had no value and he only did it because his insurance company made him do it.

In her deposition Guido [plaintiff] testified she “just didn’t feel comfortable signing something that said ‘Release’ on it on the top.” However, she signed it without reading it because respondent [defendant] advised her, “…  It doesn’t mean anything.  It is something that I need to have you sign, because my insurance company won’t let me give lessons unless I have people sign this.  …  As a matter of fact, the insurance company wants me to give the students this long detailed form, which I don’t do, because it scares them away when they see this long, detailed form.

The plaintiff took lessons from the defendant twice a week for 9 months before she was bucked from a horse suffering injuries. She had bucked from a horse while taking lessons with this defendant earlier. She sued and the trial court dismissed the complaint based on the release.

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

This case has a few interesting statements. The plaintiff stated she did not think that an inherent risk of riding a horse was the risk of being thrown off the horse. The court responded with this statement.

As to appellants’ argument that the release is ineffective because Guido did not think being thrown off a horse was an inherent risk of horseback riding, we are of the contrary view–that it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse. The cases of injuries from horseback riding are numerous, and we have found none which describe this risk as unexpected or extraordinary.

The next argument made by the plaintiff was the release was void because it was against public policy. The court’s analysis of public policy in this case was well thought out and well written.

In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics.  It concerns a business of a type generally thought suitable for public regulation.  The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.  As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.  In 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. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

This analysis of public policy was along the same lines as all other states that have looked at the issue with regard to releases for recreational activities.

Other than in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 reviewed in Oregon Supreme Court finds release signed at ski area is void as a violation of public policy. No court has found a recreational activity to be subject to public policy exceptions. For a business to be found to be subject to the public policy exception to using a release it must be found to be:

… a business of a type generally thought suitable for public regulation. 

… the business invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

… the business 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.

…, the person or property of the purchaser is placed under the control of the business, subject to the risk of carelessness by the seller or his agents.

With the sole exception of Oregon, the public policy argument to void a release has never worked against a recreational business. The court then looked at whether horseback riding was recreational. The analogy started with the settling of the west up to modern times.

However, for better or worse, the times have changed, and except for a few working cattle ranches where the cow pony has not been completely replaced by the pickup truck, equestrian activities are largely confined to the entertainment arena.

We are unaware of any constitutional or statutory provision that would place horseback riding within the “public interest” category.

Finally the court looked at whether the release was void because of the statements made by the defendant. This is called fraudulent misrepresentation and allows a party to rescind the release. This can also be defined as nondisclosure of a material fact to the contract, which allows rescission of the release. A fraudulent misrepresentation is one made to convince someone to do something.

The representations need not be made with knowledge of actual falsity but also include the “false assertion of [a] fact by one who has no reasonable grounds for believing his own statements to be true, and when made with [the] intent to induce the other to alter his position, to his injury.

The key is the reliance must be justified. Meaning the misrepresentation must be significant so that the fact being misrepresented is important. The other requirement is the person relying on the misrepresentation must do so because it is on its face seemingly valid. “Justifiable reliance is an essential element of a claim for fraudulent misrepresentation, and the reasonableness of the reliance is ordinarily a question of fact.”

The court found the reliance was not justified in this case but for only one reason. The plaintiff was an attorney.

Guido’s [plaintiff] deposition testimony on which appellants rely also reveals that she is a practicing attorney and uses releases in her practice. In essence, she is asking this court to rule that a practicing attorney can rely on the advice of an equestrian instructor as to the validity of a written release of liability that she executed without reading.

In determining whether one can reasonably or justifiably rely on an alleged misrepresentation, the knowledge, education and experience of the person claiming reliance must be considered.

The appellate court found that an attorney could not rely on the legal statements of a non-attorney. “Under these circumstances, we conclude as a matter of law that any such reliance was not reasonable.”

This is a remarkable statement from the court. It makes sense, but at the same time, it has no real value because you are not going to review every participant to determine if they are a lawyer so you can then on worry about misrepresenting material facts about your release.

So Now What?

If the misrepresentation had been made to anyone else this decision would have gone the other way.

The defendant’s fear in having customers sign a release or be scared away from his business because of a release used to be common. However it is an incorrect fear.

The first thing to remember is the people the release scares away are the people who will be hurt and sue if they are hurt. Part of the value of a good release is that it will scare some people away.

The next issue is it will scare everyone away. I had one client have 40,000 people a year for more than ten years sign the release. Over those ten years 26 people refused to sign the release.

You have an obligation to your clients to tell them of the risks of the activity. Nothing can be worse than to have someone on a trip who is terrified because they did not understand the real risks of the activity. It is even worse when someone is injured or dies because they did not understand the risks. Your release must tell the people what they are getting into. It will save you time and money, it will make your customer’s trip better and it will save your butt!

This defendant got lucky.

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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Guido et al., v. Koopman, 1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350

Guido et al., v. Koopman, 1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350

Diana L. Guido et al., Plaintiffs and Appellants, v. Charles Koopman, Defendant and Respondent.

No. A052006

COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE.

1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350

December 12, 1991, Decided

SUBSEQUENT HISTORY: [***1] Review Denied February 26, 1992, Reported at 1992 Cal. LEXIS 2024.

PRIOR HISTORY: Superior Court of the City and County of San Francisco, No. 897795, Stuart R. Pollak, Judge.

COUNSEL: McTernan, Stender & Wash and Marvin Stender for Plaintiffs and Appellants.

Drevlow, Murray & Payne and Mary S. Cain for Defendant and Respondent.

JUDGES: Opinion by Haning, Acting P. J., with King, J., and Poche, * concurring.)

* Associate Justice of the Court of Appeal, First District, Division Four, sitting under assignment by the Chairperson of the Judicial Council.

OPINION BY: HANING, Acting P. J.

OPINION

[*839] [**438] Plaintiffs and appellants Diana L. Guido and Donald Schwartz, a married couple, appeal from a summary judgment, enforcing a release from all liability, in favor of defendant and respondent Charles Koopman, doing business as The Academy of Equestrian Arts (the Academy). Appellants contend the release is unenforceable because it was executed in reliance on respondent’s misrepresentation that it was unenforceable. We affirm.

Facts and Procedural History

Guido [***2] filed her complaint against three groups of defendants for personal injuries allegedly resulting from three separate, sequential accidents during [*840] the summer of 1988: two automobile accidents and a horseback riding accident. These incidents were unrelated, but were joined in the complaint because “[p]laintiff is in doubt as to which of the defendants … she is entitled to redress because there is a question as to which defendant is liable and to what extent for injuries, as she was injured in each incident.” Guido’s husband, Donald Schwartz, filed a separate action for loss of consortium, and the two actions were consolidated.

The summary judgment motion was brought by respondent and is addressed solely to the cause of action against him involving the horseback riding accident.

On September 29, 1987, Guido visited the Academy to inquire about taking horseback riding lessons from respondent. At that time she signed a document entitled “Release,” given to her by respondent. That document reads:

“Release

“I Hereby Release [the Academy], Charles Koopman, Donna Koopman, Managers, Trainers, Instructors and Emplyees [sic] of and From All Claims Which May Hereafter Develop [***3] or Accrue to me on account of, or by Reason of, Any Injury, Loss or Damage, Which May Be Suffered by Me or to Any Property, Because of any Matter, Thing or Condition, Negligence or Default Whatsoever, and I Hereby Assume and Accept the Full Risk and Danger of Any Hurt, Injury or Damage Which May Occur Through or by Reason of Any Matter, Thing or Condition, Negligence or Default, of Any Person or Persons Whatsoever.”

After signing the release, Guido took lessons from respondent, as often as twice a week, until the accident on June 16, 1988, when she allegedly was thrown from one of respondent’s horses.

Respondent’s motion for summary judgment was based, in part, on the ground that the waiver precluded Guido from pursuing any claims against him. The trial court found there was no triable issue of any material fact and granted summary judgment for respondent.

Discussion

[HN1] “[S]ummary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party [*841] is entitled to a judgment as a matter of law. …” ( Code Civ. Proc., § 437c, subd. (c).) The issues [**439] presented are whether the release is voidable and, if [***4] so, whether the undisputed facts prevent appellants from avoiding the release.

Appellants advance two theories for avoidance of the release: First, in Guido’s declaration in opposition to respondent’s summary judgment motion, she states: “… I am an attorney. When I signed the release it was my understanding that releases from negligence were against public policy. [P] … [P] … I am not an expert on horses. But I do not think that an inherent risk of horseback riding is being thrown off of a horse ….” Second, although not mentioned in Guido’s declaration, appellants argued to the trial court, as she does on appeal, that respondent told Guido the release was “meaningless.”

(1) With regard to appellants’ initial contention regarding the legality of the release, they are in error. [HN2] Civil Code section 1668 provides: “All contracts which have for their object, directly or indirectly, to exempt anyone from [the] responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” [HN3] This statute has been interpreted to mean that “a contract exempting from liability for ordinary [***5] negligence is valid where no public interest is involved ….” (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 631, p. 569; Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 97 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]; Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 148-149 [277 Cal.Rptr. 887].)

[HN4] Public interest or policy is generally defined by the constitution, statutes or judicial precedent. “In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [***6] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a [*842] standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” ( Tunkl v. Regents of University of California, supra, 60 Cal.2d at pp. 98- 101, fns. omitted.)

(2) There was a time during the development of this nation, particularly during the early westward migration, that one’s survival frequently depended upon a good horse [***7] and the ability to remain in the saddle. Indeed, legend has it that so vital was the horse to our well-being in the American West that horse thieves were routinely hanged, with a dispatch that bore little resemblance to contemporary notions of due process. However, for better or worse, the times have changed, and except for a few working cattle ranches where the cow pony has not been completely replaced by the pickup truck, equestrian activities are largely confined to the entertainment arena.

We are unaware of any constitutional or statutory provision that would place horseback riding within the “public interest” category. Like the court in Buchan, we are also unaware of any case in the sports or recreation field that has voided such a release on public interest or public policy [**440] grounds. ( Buchan v. United States Cycling Federation, Inc., supra, 227 Cal.App.3d at p. 149.) Similar releases have been upheld for activities that are equally, if not more, hazardous than horseback riding, such as bicycle racing (Ibid.), motorcycle dirt bike racing ( Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606 [246 Cal.Rptr. 310]), [***8] white-water rafting ( Saenz v. White-water Voyages, Inc. (1990) 226 Cal.App.3d 758 [276 Cal.Rptr. 672]), scuba diving ( Madison v. Superior Court (1988) 203 Cal.App.3d 589 [250 Cal.Rptr. 299]) and skydiving. ( Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 [214 Cal.Rptr. 194].)

As to appellants’ argument that the release is ineffective because Guido did not think being thrown off a horse was an inherent risk of horseback riding, we are of the contrary view–that it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse. The cases of injuries from horseback riding are numerous, and we have found none which describe this risk as unexpected or extraordinary. (See, e.g., Palmquist v. Mercer (1954) 43 Cal.2d 92 [272 P.2d 26]; Dorobek v. Ride-A-While Stables (1968) 262 Cal.App.2d 554 [68 Cal.Rptr. 774]; Griffin v. Sardella (1967) 253 Cal.App.2d 937 [61 Cal.Rptr. 834]; [***9] O’Brien v. Gateway Stables (1951) 104 Cal.App.2d 317 [231 P.2d 524].) In fact, Guido admitted she was “bucked” from a different horse a few months before this accident.

[*843] (3a) For their second contention–that respondent advised Guido the release was “meaningless”–appellants rely on Guido’s deposition testimony, submitted by respondent in support of his summary judgment motion. In her deposition Guido testified she “just didn’t feel comfortable signing something that said ‘Release’ on it on the top.” However, she signed it without reading it because respondent advised her, “… It doesn’t mean anything. It is something that I need to have you sign, because my insurance company won’t let me give lessons unless I have people sign this. [P] … As a matter of fact, the insurance company wants me to give the students this long detailed form, which I don’t do, because it scares them away when they see this long, detailed form.”

(4) [HN5] “It is well established that a party to an agreement induced by fraudulent misrepresentations or nondisclosures is entitled to rescind, notwithstanding the existence of purported exculpatory provisions contained [***10] in the agreement. [Citation.]” ( Danzig v. Jack Grynberg & Associates (1984) 161 Cal.App.3d 1128, 1138 [208 Cal.Rptr. 336]; Civ. Code, § 1689, subd. (b)(1).) The representations need not be made with knowledge of actual falsity but also include the “false assertion of [a] fact by one who has no reasonable grounds for believing his own statements to be true, and when made with [the] intent to induce the other to alter his position, to his injury. [Citation.]” ( In re Cheryl E. (1984) 161 Cal.App.3d 587, 599 [207 Cal.Rptr. 728]; Civ. Code, § 1572, subd. 2.)

[HN6] The existence of actual fraud is always a question of fact. ( Civ. Code, § 1574; Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1475 [266 Cal.Rptr. 593].) (5) [HN7] Justifiable reliance is an essential element of a claim for fraudulent misrepresentation, and the reasonableness of the reliance is ordinarily a question of fact. ( Seeger v. Odell (1941) 18 Cal.2d 409, 414-415 [115 P.2d 977, 136 A.L.R. 1291]; Danzig v. Jack Grynberg & Associates, supra, 161 Cal.App.3d at p. 1138.) [***11] However, whether a party’s reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 289, p. 301.)

(3b) Guido’s deposition testimony on which appellants rely also reveals that she is a practicing attorney and uses releases in her practice. In essence, she is asking this court to rule that a practicing attorney can rely on the advice of an equestrian instructor as to the validity of a written release of liability that she executed without reading. [HN8] In determining whether one can reasonably or justifiably rely on an alleged misrepresentation, the knowledge, education and experience of the person [**441] claiming reliance must be considered. ( Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503 [*844] [198 Cal.Rptr. 551, 674 P.2d 253, 44 A.L.R.4th 763]; Seeger v. Odell, supra, 18 Cal.2d at p. 415.) Under these circumstances, we conclude as a matter of law that any such reliance was not reasonable.

The summary judgment is affirmed.

[***12] King, J., and Poche, J., * concurred. Appellants’ petition for review by the Supreme Court was denied February 26, 1992.

* Associate Justice of the Court of Appeal, First District, Division Four, sitting under assignment by the Chairperson of the Judicial Council.


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

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

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

Plaintiff: Nicole Azad

Defendant: Mill Creek Equestrian Center, Inc.

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Release

Holding: for the defendant

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

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

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

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

Summary of the case

On appeal the plaintiff claimed:

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

What do you think? Leave a comment.

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

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

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

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

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

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

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

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

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

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

Summary of the case

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

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

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

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

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

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

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

Waivers can be voided for three reasons in Hawaii.

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

(1) violative of a statute,

(2) contrary to a substantial public interest, or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

 

Plaintiff: Lisa Courbat and Steven Courbat

 

Defendant: Dahana Ranch, Inc.

 

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

 

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

 

Holding: reversed and sent back for trial

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

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

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

Lisa Courbat and Steven Courbat, Plaintiffs-Appellants, vs. Dahana Ranch, Inc., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.

NO. 25151

SUPREME COURT OF HAWAI’I

111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386

July 10, 2006, Decided

SUBSEQUENT HISTORY: Amended by, Reconsideration granted by, in part, Reconsideration denied by, in part Courbat v. Dahana Ranch, 2006 Haw. LEXIS 417 (Haw., Aug. 3, 2006)

PRIOR HISTORY: [***1] APPEAL FROM THE THIRD CIRCUIT COURT. CIV. NO. 01-1-0049.

COUNSEL: On the briefs:

Andrew S. Iwashita, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.

Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, for the defendant-appellee Dahana Ranch, Inc.

JUDGES: MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.

OPINION BY: LEVINSON

OPINION

[**429] [*256] OPINION OF THE COURT BY LEVINSON, J.

The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, “the Courbats”] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit [*257] [**430] court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).

On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) 1 do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) [***2] (Supp. 1994) 2 in finding that [*258] [**431] Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.

1 HRS ch. 480 provided in relevant part:

§ 480-2 . . . . (a) [HN1] Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.

(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

. . . .

§ 480-3 . . . . [HN2] This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes . . . .

. . . .

§ 480-12 . . . . [HN3] Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.

§ 480-13 . . . . (b) [HN4] Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:

(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $ 1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and

(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.

Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Haw. Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Haw. Sess. L. Act 79, §§ 1 and 5 at 127-28.

[***3]

2 HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Haw. Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:

§ 663B-1 . . . . [HN5] As used in this [chapter], unless the context otherwise requires:

“Engages in an equine activity” means riding . . . or being a passenger upon an equine . . . .

. . . .

“Equine activity” means:

. . . .

(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and

. . . .

“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity. . . .

“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.

“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;

(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

(3) Certain hazards such as surface and subsurface conditions;

(4) Collisions with other equines or objects; and

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.

“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.

§ 663B-2 . . . . (a) [HN6] In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.

(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:

. . . .

(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury

. . . . (Some brackets in original and some omitted.)

[***4] For the reasons discussed infra in section III.A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” 3 According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having [***5] no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.

3 The rules and waiver stated in pertinent part:

In order for us to keep our ride from being a “Nose To Tail Trail Ride[,”] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.

RULES AND REGULATIONS

FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE

. . . .

. PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO

. . . .

. DO NOT FOLLOW ONE ANOTHER

. . . .

WAIVER

I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawai[]i and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.

I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.

(Emphasis in original.)

[***6] The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:

Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .

[*259] [**432] [Lisa]: When I felt that the horse[] was getting too close to the horses above me.

Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?

[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.

Q: [T]hose two horses, the guide’s [***7] horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?

[Lisa]: Yes.

Q: You recall which hind leg of the horse kicked you? Was it the right or the left?

[Lisa]: It would be the right one.

Q: And that was a horse which was ridden by the guide or the guest?

[Lisa]: The guide.

Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?

[Lisa]: Just before?

Q: Yes.

[Lisa]: Yes.

Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?

[Lisa]: No.

Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?

[Lisa]: Yes.

Nakoa described the same incident in a January 9, 2002 deposition:

[Nakoa]: . . . Everybody was facing the gate, the second gate. . . . And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and [***8] ask me about the horse.

. . . .

Q: On which side of your horse was he at the time?

[Nakoa]: He was on the left side of me.

Q: And were you still moving or were you stopped?

[Nakoa]: We were walking.

. . . .

Q: . . .[H]ad you passed Lisa along the way? . . . .

[Nakoa]: Because of the angle, she was off to my left.

Q: Still in front of you?

[Nakoa]: No. About the same.

. . . .

Q: And when is the next time you notice[] Lisa’s horse before the injury takes place?

. . . .

[Nakoa]: She was still on the left side of me.

Q: . . . [A]bout how far away do you estimate she was from your horse?

[Nakoa]: You know, 30 feet maybe. . . .

Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?

[Nakoa]: Yes. The man was on my left and I was talking to him.

. . . .

Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?

[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the [***9] left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.

Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and [*260] [**433] since the incident has complained of ongoing pain and injury to her leg.

The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.

On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats [***10] had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.

The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.

The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. 4

4 On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).

[***11] II. STANDARDS OF REVIEW

A. Summary Judgment

We [HN7] review the circuit court’s grant or denial of summary judgment de novo . . . .

[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.

[Hawai’i Cmty. Fed. Credit Union v. Keka, 94 Hawai’i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).

Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) [***12] (internal citation omitted) (some brackets in original).

B. Interpretation Of Statutes

[HN8] The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).

Furthermore, our statutory construction is guided by established rules:

[HN9] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty [*261] [**434] of an expression used in a statute, an ambiguity exists. . . .

In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. [***13] One avenue is the use of legislative history as an interpretive tool.

Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted).

State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). [HN10] Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).

III. DISCUSSION

A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.

The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted [***14] method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).

The Intermediate Court of Appeals held in Beerman v. Toro, 1 Haw. App. 111, 118, 615 P.2d 749, 754-55 (1980), that [HN11] the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F. Supp. 2d 1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, [***15] but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $ 116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1. As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.

1. The elements of a deceptive trade practice claim for recision of a contract

[HN12] To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” violates HRS § 480-2.

[HN13] “Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal [***16] cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369, 36 F.T.C. 1106 (10th Cir. 1943))), we have not articulated a more refined test.

[HN14] HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” [*262] [**435] and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§ ] 45(a)(1)[(2000)],” 5 in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” 6 Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, Trade Cas. (CCH) P22137 (1984), developed [***17] a three-part analytical test for “deception,” 7 which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice[] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[] the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves “‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.'” Novartis Corp. v. FTC, 343 U.S. App. D.C. 111, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); [***18] FTC v. Crescent Publ’g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. 8

5 15 U.S.C. § 45(a)(1) provides that ” [HN15] [u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”

6 Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Haw. 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Haw. App. 420, 426, 651 P.2d 1228, 1233-34 (1982).

[***19]

7 See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).

8 [HN16] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new. . . . [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few. . . . [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).

[HN17] Given our obligation under HRS §§ 480-3 [***20] and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. 9

9 Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 353 Md. 335, 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F. Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.

2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination [***21] Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.

The Courbats do not allege that the waiver itself is deceptive; rather, they urge [*263] [**436] that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. 10 Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. 11 Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.

10 It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that [HN18] an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).

[***22]

11 If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980) [HN19] (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety. . . . [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.

[HN20] The application [***23] of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.'” Amfac, Inc., 74 Haw. at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment “‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon [***24] all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.'” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). “‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.'” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence .”) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw [***25] only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.

Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May [*264] [**437] 13, 2002 judgment and remand for further proceedings consistent with this opinion.

B. The Consequences, On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice

If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence [***26] on the part of the tour operator, does not apply to the present matter.

Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.

1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.

If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.

HRS § 663B-2(b) provides in relevant part that “[n]othing in [***27] this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.

2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.

a. The waiver was validly executed.

Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Haw. App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear [***28] and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.

[HN21] “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosp., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Haw. 1980). Furthermore, “‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.'” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 [*265] [**438] (Ind. Ct. App. 1982)). [***29] “[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, “‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.'” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).

The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.

In Krohnert, the ICA defined the public interest

as involving some or all of the following characteristics:

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

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

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

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

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

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

4 Haw. App at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1981) [***31] (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (Cal. Ct. App. 1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp. 2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). 12 Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S. Ct. 148, 57 L. Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir. 1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y. App. Div. 1981), and hospitals, see Tunkl, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga. App. 387, 287 S.E.2d 99, [*266] [**439] 101 (Ga. Ct. App. 1981); [***32] Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788, 798 (Cal. Ct. App. 1968).

12 Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F. Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga. App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F. Supp. 2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).

Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally [***33] suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.

Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993). [HN22] “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.'” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); [***34] see also Wheelock, 839 F. Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Haw. App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.

In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity [***35] to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.

b. The scope of the Courbats’ waiver does not extend beyond negligence claims.

The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because [HN23] “‘[e]xculpatory provisions are not [***36] favored by the law and are strictly construed against parties relying on them,'” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F. Supp. at 378); see also Wheelock, 839 F. Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate [*267] [**440] the public interest, rendering the clause void).

IV. CONCLUSION

In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.

DISSENT BY: DUFFY

DISSENT

DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS

I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding [***37] activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.