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Crashing while mountain biking is an inherent risk under Indiana’s law.

The plaintiff also admitted that he knew the risks of mountain biking and as such were contributorily negligent which barred his claims against the park owner.

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

State:  Indiana, Court of Appeals of Indiana

Plaintiff: (At Trial) Richard Kaler 

Defendant: (At Trial) Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation

Plaintiff Claims: Premises Liability 

Defendant Defenses: No liability and Contributory Negligence 

Holding: For the Defendants (at Trial) 

Year: 2017 

Summary

Crashing while mountain biking is an inherent risk under Indiana’s law. The plaintiff, an experienced mountain biker could not recover from the park because he knew and had crashed mountain biking and his knowledge of mountain biking also made him contributorily negligent. Contributory negligence under Indiana Law is a complete bar to recovery when suing a municipality.

Facts 

This decision the parties in the heading is reversed. The plaintiff is listed second in this case at the appellate court heading and the defendants are listed first. The reason is the defendants are appealing the trial court’s ruling and they the defendants are prosecuting the case to the appellate court. Few states work this way in titling their decisions. 

The City of Indianapolis, through its Indy Parks and Recreation department owns Town Run Trail Park. It has numerous mountain bike trails through the park which are managed by the Hoosier Mountain Bike Association.

The plaintiff had been mountain biking for five or six years. An Eagle Scout had created a berm in the park as part of a “merit badge” in the park. While riding the berm the plaintiff crashed and sued.

He described himself as an “experienced” and “better than average” bicyclist. Although he was familiar with the trails at Town Run, he had not been on the mountain-bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.”

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

All states have Premises Liability statutes. These statutes set out the duties of land owners relative to people on their land. If the land owner fails to meet those duties, the landowner is liability. An injury to a person on someone’s land is called a premises liability claim.

The plaintiff mountain biker brought a premises liability claim for his injuries. To win a premises liability claim in Indiana the plaintiff must prove the landowner. 

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable
risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger. 

The plaintiff failed to prove this to the appellate court on two different arguments. First, the plaintiff’s experience as a mountain bike showed he knew that crashing was a possibility mountain biking, and he crashed often. 

He admitted that a fall “was just a general consequence of the sport.” Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark, but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” At no point, did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions. 

Second he had ridden the wooden berm once before that day, electing to take a lower ride through the berm. The second time he went faster taking the higher edge of the berm when he crashed.

The plaintiff could not prove that actual or constructive knowledge that the City knew the trail created an unreasonable risk of harm to the plaintiff. Not because of the lack of the cities’ knowledge, but because crashing was part of the sport. Therefore, there was no unreasonable risk. The plaintiff had testified that crashing was part of the sport.

As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element.

Having the plaintiff admit crashing was part of the sport, the court held that while mountain biking crashing was an inherent risk of the sport. If a risk is inherent to the sport, then you could not sue for injuries from an inherent risk.

The second defense brought by the City on appeal was the plaintiff was contributorily negligent. Contributory negligence 

“[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.

If you can prove the plaintiff was responsible for his own injuries, then the defendant is not liable. In some states, this could act to reduce the plaintiff’s damages. In Indiana, it was a complete bar to the plaintiff’s claims. 

Reviewing the testimony of the plaintiff, the court found that the plaintiff was not completely free of all negligence. Meaning the plaintiff was also negligent and therefore, barred from suing for his claims.

So Now What? 

Two great ideas came out of this for land owners in Indiana. The first is crashing is an inherent risk of the mountain biking. Most mountain bikers already knew this; however, having a court make the statement is great. 

Second premises liability statute in Indiana has been interpreted to allow the defendant to introduce the knowledge and skill of the plaintiff as a defense to the plaintiff’s claims and as a denial of his claims. 

What do you think? Leave a comment. 

Copyright 2017 Recreation Law (720) 334 8529 

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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

 


Cycling Sports Group Recalls Commuter Bicycles Due to Fall Hazard

Recall Summary

Name of Product: Cannondale commuter bicycles

http://www.cpsc.gov/en/Recalls/2016/Cycling-Sports-Group-Recalls-Commuter-Bicycles/

Hazard: The bicycle’s fork axle can crack, posing a fall hazard.

Remedy: Repair

Consumers should immediately stop using the recalled bicycles and take them to the nearest authorized Cannondale dealer for a free repair. Cannondale dealers will replace the fork free of charge.

Consumer Contact: Cannondale at 800-726-2453 from 9 a.m. to 6 p.m. ET Monday through Friday, by email at custserve@cyclingsportsgroup.com or online at http://www.cannondale.com and click on Safety Notices and Recalls at the bottom right-hand corner of the main page for more information.

Recall Details

Photos Available At http://www.cpsc.gov/en/Recalls/2016/Cycling-Sports-Group-Recalls-Commuter-Bicycles/ 

Units: About 3,100 (in addition, about 400 were sold in Canada)

Description: This recall involves 2010-2012 Cannondale Bad Boy and Bad Girl commuter bicycles. They were sold in black. Only bicycles with date codes beginning with P, Q and RB through RL are included in this recall. The date code is located on the bottom of the bicycle fork. The frame is matte black. A Cannondale decal can be found on the downtube.

Incidents/Injuries: The firm has received 30 reports of the bicycle’s fork axle cracking; including an injury report of a fall that resulted in a concussion and bruising.

Sold at: Authorized Cannondale dealers nationwide from June 2010 through December 2014 for between $1,000 and $1,800.

Importer: Cycling Sports Group Inc., of Wilton, Conn.

Manufacturer: Post Moderne Tech Corp., of Taiwan

Manufactured in: Taiwan

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

clip_image002What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 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

Mobile Site: http://m.recreation-law.com

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, Recall, CPSC, Consumer Product Safety Council, Bicycle Fork, Cannondale, cycling, Front Axle, Cycling Sports Group, Inc.,

 

 


Plaintiff argues under Minnesota law, the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.

Since the language was not an “offer” no new contract was being offered by the ski area to skiers, and the language did not create any conflict with the release language.

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

State: Minnesota, Court of Appeals of Minnesota

Plaintiff: Lee and Cathy Bergin

Defendant: Wild Mountain, Inc. d/b/a Wild Mountain Ski Area

Plaintiff Claims: negligence,

Defendant Defenses: Release

Holding:

Year: 2014

This is a lawsuit by a husband and wife against a ski area for the injuries husband received skiing. A friend purchased season passes online for himself and the defendants. As part of that online purchase, the friend agreed to a release online.

Interesting that just five years ago the issue would have been whether the release signed electronically was valid, now the courts do not even look at that issue.

The friend did not discuss the season pass with the defendants before agreeing to it for them. In a deposition, the husband agreed that he had the friend purchase the passes and had purchased season passes online for the past eleven years and agreed to the release all those years. The defendants wrote a check to the friend for the cost of the season passes.

The trial court held that the friend bound the defendants to the season pass release. The defendants did not argue this issue on appeal.

Seven months later, the defendants picked up their season passes and went skiing. On the back of the season pass was disclaimer language.

The defendants skied “the Wall” a double black diamond trail. The wall had a bump run on the right, and the husband skied the left side. Near the bottom of the run, he hit a bump (mogul?) and went airborne landing on his back. The defendant husband is paralyzed.

This was the only incident the defendant ski area had recorded concerning that run that year. The plaintiff’s sued, and the trial court granted the defendants motion for summary judgment. This appeal followed.

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

During or prior to the granting of the defendant’s motion for summary judgment, the plaintiff’s moved to amend their complaint to add a claim for reckless, willful or wanton conduct of the defendant. The trial court denied this, and the appellate court looked at this issue on appeal.

In order to support a claim for more than ordinary negligence, the rules of civil procedure required a short and plaint statement describing facts supporting their claim.

The court reviewed the requirements to prove the amended allegations. “Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril.” The plaintiff’s argued their two expert’s affidavits supported these new claims.

Because the defendant had no other notice of the issues, the defendant had no notice of the problem in advance of the plaintiff’s injuries. A requirement under Minnesota law to prove reckless, willful or wanton conduct.

Because the evidence is insufficient to establish that Wild Mountain engaged in conduct constituting greater-than-ordinary negligence, the district court correctly determined that a claim of greater-than-ordinary negligence would not survive a motion for summary judgment.

The next issue the court looked at was the validity of the release.

A clause exonerating a party from liability,” known as an exculpatory clause, is enforceable if it: (1) is “unambiguous”; (2) is “limited to a release of liability arising out of negligence only”; and (3) does not violate public policy.

An ambiguous clause in Minnesota is one that is “susceptible to more than one reasonable construction.” The trial court held the release was valid because the release was unambiguous and barred only ordinary negligence.

The plaintiff argued the release was ambiguous because they argued the language on the back of the season pass created questions concerning the release. The plaintiff argued the season pass warning was part of the release and therefore, created issues of how the language of the release could be interpreted.

An ambiguity exists only in the language of the document.

Because a contract ambiguity exists only if it is “found in the language of the document itself,” we consider whether the season-pass card is a part of the season-pass agreement between Lee and Wild Mountain.

The court found the season pass was not a contract or part of the release. The language on the season pass emphasized the inherent risk of skiing. The language on the season pass was not a new offer by the defendant, to enter  a new or modified contract with the plaintiffs.

As the district court correctly concluded, the season-pass card, itself is not a contract. Although the season-pass card contains language emphasizing the inherent risk of skiing, it does not contain an offer by Wild Mountain to be legally bound to any terms.

Even if the language on the season pass was part of the release contract, it still did not create an ambiguity.

Accordingly, the season-pass agreement’s specific language excluding greater-than-ordinary negligence from the scope of the exculpatory clause supersedes the season-pass card’s general language on the inherent risks of skiing. The district court correctly determined that the exculpatory clause is limited to a release of liability arising out of negligence only and granted summary judgment in favor of Wild Mountain.

Because the release was valid, and the plaintiff’s failed to establish the factual issues supporting a greater than the ordinary negligence claim the appellate court upheld the release and the trial court’s dismissal of the case.

So Now What?

When the plaintiff is paralyzed there is going to be a lawsuit. Either a subrogation claim by a health insurance company or a simple negligence claim will be filed because the possible recovery is so large. The amount of money involved is just too much not to try a lawsuit.

Here innovative thinking looked at the release and the language on the back of the plastic season pass card and found a new way to argue the release should be void.

At the same time, the obvious issue, there was no contract because the plaintiff did not purchase the pass from the defendant was missed.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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Mobile Site: http://m.recreation-law.com

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, Wild Mountain, Inc, Wild Mountain Ski Area, Season Pass, Release, Ambiguous, Ski Area, Mogul,

 


Pacific Cycle Recalls Swivel Wheel Jogging Strollers Due to Crash and Fall Hazards

http://www.cpsc.gov/en/Recalls/2016/Pacific-Cycle-Recalls-Swivel-Wheel-Jogging-Strollers/

Recall Summary

Name of Product: Instep and Schwinn swivel wheel jogging strollers

Hazard: The front wheel can become loose and detach, posing crash and fall hazards.

Remedy: Repair

Consumers should immediately stop using the recalled jogging strollers and contact Pacific Cycle to obtain a repair kit to secure the front wheel. The repair kit includes a replacement mechanism for securing the front wheel that uses a traditional screw on/off method of attachment instead of the quick release lever method of attachment shipped with the product, as well as new warning labels. Consumers should not return the jogging strollers to retailers where purchased. A repair video is available at www.pacific-cycle.com/safety-notices-recalls/.

Consumer Contact: Pacific Cycle toll-free at 877-564-2261 from 8 a.m. to 5 p.m. CT Monday through Friday, online at www.pacific-cycle.com, www.instep.net or www.schwinnbikes.com and click on “Safety Notices & Recalls” or email customerservice@pacific-cycle.com for more information.

Recall Details

Photos Available At http://www.cpsc.gov/en/Recalls/2016/Pacific-Cycle-Recalls-Swivel-Wheel-Jogging-Strollers/

Units: About 217,600

Description: This recall involves single and double occupant swivel wheel jogging strollers that have a quick release mechanism for removing and re-attaching the front wheel. Instep Safari, Instep Grand Safari, Instep Flight, Schwinn Turismo and Schwinn Discover Single and Double Occupant Swivel jogging strollers with the following model numbers are affected. These models come in a variety of colors. The model number is located on the inside of the metal frame above the rear right wheel.

Instep Safari

Single

Instep Grand Safari

Single

Instep Safari

Double

Instep Grand Safari

Double

Instep Flight 

Single

Instep Flight

— Double

Schwinn Turismo

Single

Schwinn Turismo

Double

Schwinn Discover

Single

Schwinn Discover

Double

11-AR178

11-AR182

11-AR220B

11-AR282

11-AR101AZ

11-AR201AZ

13-SC113

13-SC213

13-SC105AZ

13-SC205AZ

11-AR179

11-AR183

11-AR224

11-AR283

 

11-AR301AZ

13-SC114

13-SC214

 

 

11-AR180

11-AR184

11-AR278

11-AR284

 

 

13-SC116

13-SC216

 

 

11-AR181

11-AR-192

11-AR279

11-AR292

 

 

13-SC117

13-SC217

 

 

11-AR240B

11-AR193

11-AR280

11-AR293

 

 

 

 

 

 

11-AR245

 

11-AR281

 

 

 

 

 

 

 

11-AR250

 

11-AR290

 

 

 

 

 

 

 

11-AR255

 

11-AR291

 

 

 

 

 

 

 

11-AR700A

 

11-AR340B

 

 

 

 

 

 

 

111-AR750

 

11-AR345

 

 

 

 

 

 

 

11-AR178DS

 

11-AR350

 

 

 

 

 

 

 

11-AR179DS

 

11-AR355

 

 

 

 

 

 

 

11-AR120B

 

 

 

 

 

 

 

 

 

11-AR190

 

 

 

 

 

 

 

 

 

11-AR191

 

 

 

 

 

 

 

 

 

Incidents/Injuries: The firm has received 132 reports of the front wheel becoming loose or unstable, resulting in 215 injuries, including head injuries, sprains, lacerations, bumps, bruises, and abrasions.

Sold at: Small retailers nationwide and online at Amazon.com, Target.com, Toys-R-Us.com, Walmart.com and other online retailers from January 2010 through June 2016 for between $130 and $350.

Importer: Pacific Cycle Inc., of Madison, Wis.

Manufacturer: Lerado (Zhongshan) Industrial Co. Ltd., of China

Manufactured in: China

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

clip_image002What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 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

Mobile Site: http://m.recreation-law.com

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, Recall, CPSC, Consumer Product Safety Council, Pacific cycle, Inc., Instep, Schwinn, Swivel Wheel, Jogging Strollers,

 


Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Lee Bergin, et al., Appellants, vs. Wild Mountain, Inc. d/b/a Wild Mountain Ski Area, Respondent.

A13-1050

COURT OF APPEALS OF MINNESOTA

2014 Minn. App. Unpub. LEXIS 212

March 17, 2014, Filed

NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

PRIOR HISTORY: [*1]

Chisago County District Court File No. 13-CV-11-695.

DISPOSITION: Affirmed.

CASE SUMMARY:

COUNSEL: For Appellants: James P. Carey, Marcia K. Miller, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, Minnesota.

For Respondent: Brian N. Johnson, John J. Wackman, Peter Gray, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota.

JUDGES: Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Hooten, Judge.

OPINION BY: HOOTEN

OPINION

UNPUBLISHED OPINION

HOOTEN, Judge

In this personal-injury action, appellants-skiers sued respondent-ski resort for damages resulting from a skiing accident. Appellants challenge the district court’s grant of summary judgment in favor of respondent, arguing that the district court erred by (1) denying their motion to amend the complaint to add allegations of reckless, willful, or wanton conduct; (2) determining that an exculpatory clause bars their claim of ordinary negligence; and (3) applying the doctrine of primary assumption of risk to bar their claim of ordinary negligence. Because respondent’s conduct does not give rise to a claim of greater-than-ordinary negligence, and because the exculpatory clause is enforceable to bar a claim of ordinary negligence, we affirm.

FACTS

Appellants Lee and Cathy Bergin sued respondent [*2] Wild Mountain, Inc. d/b/a Wild Mountain Ski Area for injuries that Lee sustained while skiing at Wild Mountain. The Bergins sought damages for Lee’s physical injuries, loss of wages and earning ability, loss of property, and medical expenses, as well as for Cathy’s loss of services, companionship, and consortium. Following discovery, Wild Mountain moved for summary judgment. The pleadings and discovery reveal the following.

In March 2010, Robert Knight purchased over the internet 2010-2011 season passes to Wild Mountain for himself, the Bergins, and another individual. To complete the purchase, Knight agreed to a season-pass agreement which included a release of liability:

I understand and accept the fact that alpine skiing and snowboarding in its various forms is a hazardous sport that has many dangers and risks. I realize that injuries are a common and ordinary occurrence of this sport. I agree, as a condition of being allowed to use the area facility and premises, that I freely accept and voluntarily assume all risks of personal injury, death or property damage, and release Wild Mountain Ski & Snowboard Area . . . and its agents, employees, directors, officers and shareholders from [*3] any and all liability for personal injury or property damage which results in any way from negligence, conditions on or about the premises and facilities, the operations, actions or omissions of employees or agents of the area, or my participation in skiing or other activities at the area, accepting myself the full responsibility for any and all such damage of injury of any kind which may result.

In accordance with Minnesota law, nothing in this Release of Liability should be construed as releasing, discharging or waiving claims I may have for reckless, willful, wanton, or intentional acts on the part of Wild Mountain Ski & Snowboard Area, or its owners, officers, shareholders, agents or employees.

Knight [*4] did not ask Lee about the release of liability before agreeing to it. Lee wrote a check to Knight for the Bergins’ season passes. In his deposition, Lee admitted that he authorized Knight to purchase the season passes, that he had purchased season passes to Wild Mountain since 2001 and had agreed to a release of liability each year, that he understood the release of liability, and that he would have authorized Knight to purchase the season passes had he known about the release of liability.1

1 The Bergins do not appeal the district court’s determination that Lee is bound by the season-pass agreement even though he did not execute it himself.

On the morning of November 28, 2010, the Bergins arrived at Wild Mountain to pick up their season passes and ski. The season pass is a wallet-sized card with Lee’s name and picture on the front and the following language on the back:

I agree and understand that skiing and snowboarding involve the risk of personal injury and death. I agree to assume those risks. These risks include trail conditions that vary due to changing weather and skier use, ice, variations in terrain and snow, moguls, rocks, forest growth, debris, lift towers, fences, mazes, snow [*5] grooming, and snowmaking equipment, other skiers, and other man-made objects. I agree to always ski and snowboard in control and to avoid these objects and other skiers. I agree to learn and obey the skier personal responsibility code.

The Bergins and their friends skied “The Wall,” a double-black-diamond trail. At the top of The Wall, Lee observed that there were mounds of snow on the skiers’ left side of the run. Thinking that the left side was not skiable terrain, Lee skied down the right side. Then, at the bottom of the hill in the flat transition or run-out area, Lee encountered a “mound of snow” that he could not avoid. He hit the snow mound, flew up six to ten feet in the air, and landed on his back and the tails of his skis. Lee estimated that the snow mound was “maybe a little bigger” and “maybe a little taller” than a sofa, and that “there was no sharp edges defining” it. After the fall, Lee underwent surgery on his back and is partially paralyzed.

Daniel Raedeke, the president of Wild Mountain, testified by affidavit that Wild Mountain started making snow on The Wall on November 25, three days before Lee’s accident. On the morning of November 26, snowmaking ceased and The [*6] Wall was opened for skiing. According to Raedeke, “hundreds of skiers took thousands of runs down The Wall prior to” Lee’s accident. Raedeke added:

At the completion of snowmaking activities, there were some terrain variations at various points throughout the entire Wall run from top to bottom and side to side. Terrain variations from snowmaking are common at Minnesota (and Midwest) ski areas, particularly early in the season as ski areas rely on machine-made snow to get the areas open. It is very common for terrain variation to be encountered by skiers in Minnesota and elsewhere and they are generally well-liked, particularly by expert level skiers like [Lee].

Raedeke testified that “Wild Mountain received no reports of anything being hazardous or even out-of-the ordinary on The Wall.”

The Bergins submitted the affidavits of two ski-safety experts, Seth Bayer and Richard Penniman. Bayer testified that Wild Mountain “engaged in snow-making activity, intentionally created the hazard [Lee] encountered by creating large mounds of man-made snow . . . then intentionally left the snow-making mound in the run-out or transition area.” According to Bayer, Wild Mountain “knew or should have known [*7] that the snow-making mound in the transition area created a hazard and should have groomed out the mound or further identified the mound as a hazard.” He added that Wild Mountain failed to follow professional safety standards in making and grooming the snow.

Similarly, Penniman testified that complying with professional safety standards “would have entailed grooming out the snow making mounds; putting fencing around the snow making mounds; and warning skiers of the mounds with a rope barricade and caution signs.” He testified that “Wild Mountain’s failure to have a consistent and structured snow making and grooming policy, which specifically addressed the [professional safety standard], caused or contributed to the unsafe decision to leave a large mound of man-made snow in the transition area between the bottom of The Wall ski trail and the chair lift.” According to Penniman, “snow making mounds are not an inherent risk to the sport of skiing.”

Following discovery and Wild Mountain’s motion for summary judgment, the Bergins moved to amend their complaint to add a claim of greater-than-ordinary negligence. In April 2013, the district court denied the Bergins’ motion and granted summary [*8] judgment in favor of Wild Mountain. This appeal follows.

DECISION

I.

[HN1] After a responsive pleading is served, “a party may amend a pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Minn. R. Civ. P. 15.01. [HN2] “We review a district court’s denial of a motion to amend a complaint for an abuse of discretion.” Johnson v. Paynesville Farmers Union Co-op. Oil Co., 817 N.W.2d 693, 714 (Minn. 2012), cert. denied, 133 S. Ct. 1249, 185 L. Ed. 2d 180 (2013). [HN3] “A district court should allow amendment unless the adverse party would be prejudiced, but the court does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment.” Id. (citations omitted).

[HN4] Summary judgment is proper “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 either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. [HN5] A genuine issue of material fact does not exist “when the nonmoving party presents evidence which merely creates a metaphysical doubt [*9] as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). [HN6] On appeal, “[w]e view the evidence in the light most favorable to the party against whom summary judgment was granted. We review de novo whether a genuine issue of material fact exists. We also review de novo whether the district court erred in its application of the law.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002) (citations omitted).

The Bergins moved to amend their complaint to add the allegation that Lee’s accident “was a result of the reckless, willful, or wanton conduct” of Wild Mountain. They assert that Wild Mountain “knew or should have known that a large, un-marked, un-groomed, mound of snow in the transition area between ‘The Wall’ and a chair lift . . . created a significant risk of physical harm to skiers.” The district court concluded that, although Wild Mountain would not be prejudiced if the motion to amend was granted,2 the motion must still be denied because the proposed claim “would not survive [*10] summary judgment, as [Wild Mountain’s] conduct does not, as a matter of law, rise to the level of reckless, willful or wanton.”

2 Wild Mountain does not challenge this finding on appeal.

The Bergins argue that the district court erred as a matter of law by “[r]equiring [them] to move to amend the [c]omplaint.” They assert that “Minnesota Rule of Civil Procedure 9.02 does not require plaintiffs to plead allegations of reckless, willful, or wanton conduct with particularity.” See Minn. R. Civ. P. 9.02 (stating that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally”). Accordingly, they contend that the district court should have examined whether Wild Mountain committed greater-than-ordinary negligence based on the complaint and discovery.

The Bergins’ reliance on rule 9.02 is misplaced. [HN7] Although the Bergins were not required to plead a claim of greater-than-ordinary negligence with particularity under rule 9.02, they still had to plead it with “a short and plain statement . . . showing that [they are] entitled to relief” under Minn. R. Civ. P. 8.01, which they failed to do by pleading only a claim of “negligence and carelessness.” See L.K. v. Gregg, 425 N.W.2d 813, 819 (Minn. 1988) [*11] (stating that pleadings are liberally construed to “give[] adequate notice of the claim” against the defending party); cf. State v. Hayes, 244 Minn. 296, 299-300, 70 N.W.2d 110, 113 (1955) (concluding that “both at common law and by virtue of long-established usage,” the term “carelessness” in a criminal statute is “synonymous with ordinary negligence”).3

3 We also note that the district court did not require the Bergins to move to amend their complaint. Following a hearing on the summary judgment motion, the district court sent a letter to the parties, stating that “[a]t the Summary Judgment Motion Hearing, [the Bergins] moved the Court to amend the Complaint” and that “[t]he Court will leave the record open” for them to file the motion. The district court simply responded to the Bergins’ desire to amend the complaint without requiring them to do so.

Turning to the Bergins’ substantive argument, they assert that “there are questions of fact regarding whether Wild Mountain engaged in reckless or willful or wanton conduct that . . . preclude summary judgment.” [HN8] “[R]eckless conduct includes willful and wanton disregard for the safety of others . . . .” Kempa v. E.W. Coons Co., 370 N.W.2d 414, 421 (Minn. 1985).

The [*12] 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 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.

Restatement (Second) of Torts § 500 (1965) (emphasis added); see also 4 Minnesota Practice, CIVJIG 25.37 (2006). “Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril.” Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002).

The Bergins argue that their expert affidavits support their claim of greater-than-ordinary negligence. We are not persuaded for three reasons.

First, [HN9] “[a]ffidavits in opposition to a motion for summary judgment do not create issues of fact if they merely recite conclusions without any specific factual support.” Grandnorthern, Inc. v. W. Mall P’ship, 359 N.W.2d 41, 44 (Minn. App. 1984). Bayer’s testimony that Wild [*13] Mountain “knew” that the snow mound was hazardous is speculation because there is no evidence that Bayer knew Wild Mountain employees’ state of mind before Lee’s fall and injury.

Second, the Bergins misunderstand the “had reason to know” standard for establishing a claim of greater-than-ordinary negligence. The Bergins contend that they need not prove knowledge to establish a claim of greater-than-ordinary negligence and that it is enough that Wild Mountain “should have known” that the snow mound was hazardous. But [HN10] knowledge separates the “had reason to know” standard from the “should have known” standard:

(1) The words “reason to know” . . . denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.

(2) The words “should know” . . . denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that [*14] such fact exists.

Restatement (Second) of Torts § 12 (1965) (emphases added). Accordingly, Bayer’s testimony that Wild Mountain “should have known” that the snow mound was hazardous is insufficient to establish the state of mind necessary to establish a claim of greater-than-ordinary negligence.

Finally, the expert affidavits are insufficient to establish that Wild Mountain had reason to know that the snow mound was hazardous. According to Bayer and Penniman, the snow mound was hazardous because skiers do not expect a snow mound in the transition run-out area and because the lighting condition obscured the snow mound. Assuming that these alleged facts are true, nothing in the record suggests that Wild Mountain had knowledge of these facts from which to infer that the snow mound was hazardous. Rather, Raedeke’s testimony shows that Wild Mountain received no complaints from hundreds of skiers who skied The Wall before Lee’s accident. The expert affidavits are, at most, evidence that a reasonable person managing the ski operation would not have created, or would have marked, the snow mound in the run-out area. This evidence shows only ordinary negligence.

Because the evidence is insufficient [*15] to establish that Wild Mountain engaged in conduct constituting greater-than-ordinary negligence, the district court correctly determined that a claim of greater-than-ordinary negligence would not survive a motion for summary judgment. Accordingly, the district court acted within its discretion by denying the Bergins’ motion to amend their complaint to add a claim of greater-than-ordinary negligence. See Johnson, 817 N.W.2d at 714 (stating that [HN11] a district court “does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment”).

The Bergins also argue that the district court “did not address the evidence that created questions of material fact regarding Wild Mountain’s reckless, willful, or wanton conduct.” But the district court examined Wild Mountain’s conduct and concluded that it “does not meet the standards for gross negligence, willful and wanton conduct, or reckless conduct (as defined by both parties).” The district court’s discussion of Lee’s knowledge of the inherent risks of skiing–while perhaps extraneous–does not indicate that the district court failed to analyze Wild Mountain’s conduct.

II.

The Bergins argue [*16] that the district court erred by determining that the exculpatory clause bars the Bergins’ claim of ordinary negligence. [HN12] The interpretation of a written contract is a question of law reviewed de novo. Borgersen v. Cardiovascular Sys., Inc., 729 N.W.2d 619, 625 (Minn. App. 2007). [HN13] Under certain circumstances, “parties to a contract may . . . protect themselves against liability resulting from their own negligence.” See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982) (considering exculpatory clauses in construction contracts and commercial leases). “A clause exonerating a party from liability,” known as an exculpatory clause, is enforceable if it: (1) is “unambiguous”; (2) is “limited to a release of liability arising out of negligence only”; and (3) does not violate public policy. See id. at 923. “An exculpatory clause is ambiguous when it is susceptible to more than one reasonable construction.” Beehner, 636 N.W.2d at 827.

The district court concluded that Wild Mountain’s exculpatory clause is enforceable because it is unambiguous and bars only ordinary-negligence claims. The Bergins contend that the exculpatory clause is ambiguous because “there are questions of fact [*17] regarding whether the [season-pass card] was part of the exculpatory contract.” They assert that the exculpatory clause and the language on the season-pass card “construed together are overly broad and ambiguous” because the season-pass card contains a non-exhaustive list of risks while the season-pass agreement expressly excludes greater-than-ordinary negligence from the scope of the exculpatory clause. We are not persuaded.

Because [HN14] a contract ambiguity exists only if it is “found in the language of the document itself,” we consider whether the season-pass card is a part of the season-pass agreement between Lee and Wild Mountain. See Instrumentation Servs., Inc. v. Gen. Res. Corp., 283 N.W.2d 902, 908 (Minn. 1979). [HN15] “It is well established that where contracts relating to the same transaction are put into several instruments they will be read together and each will be construed with reference to the other.” Anchor Cas. Co. v. Bird Island Produce, Inc., 249 Minn. 137, 146, 82 N.W.2d 48, 54 (1957). Here, the contractual relationship between Lee and Wild Mountain was formed when the online season-pass agreement was executed more than eight months before Lee picked up the season-pass card. [*18] As the district court correctly concluded, the season-pass card itself is not a contract. Although the season-pass card contains language emphasizing the inherent risk of skiing, it does not contain an offer by Wild Mountain to be legally bound to any terms. See Glass Serv. Co., Inc. v. State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867, 870 (Minn. App. 1995), review denied (Minn. June 29, 1995). And as a corollary, Lee could not have accepted an offer that did not exist. The season-pass card is an extrinsic document that does not create an ambiguity in the season-pass agreement.

The Bergins rely on Hackel v. Whitecap Recreations, 120 Wis. 2d 681, 357 N.W.2d 565 (Wis. Ct. App. 1984) (Westlaw). There, a skier was injured when he was “caught in a depression apparently caused by the natural drainage of water.” 120 Wis. 2d 681, at *1. The ski resort “denied liability on the basis of language printed on the lift ticket purchased by” the skier. Id. The Wisconsin Court of Appeals held that summary judgment was improper because “[w]hether the printed language on the ski ticket was part of the contractual agreement between the parties is a question of fact.” Id. Based on Hackel, the Bergins argue that “there are [*19] questions of fact regarding whether the [season-pass card] was part of the exculpatory contract.”

The Bergins’ reliance on Hackel is misplaced. As an unpublished opinion issued before 2009, Hackel has neither precedential nor persuasive value in Wisconsin. See Wis. R. App. P. 809.23(3) (Supp. 2013). Even if it were, Wisconsin’s adoption of a common-law rule is “not binding on us as authority.” See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (examining other jurisdictions’ standards of tort liability). Substantively, the questions of fact that precluded summary judgment in Hackel are absent here. In Hackel, the only language alleged to be exculpatory was printed on the back of a lift ticket, which the skier did not sign. 120 Wis. 2d 681, at *1. This language did not expressly release the ski resort from liability, but it listed the risks that the skier agreed to assume. Id. The Wisconsin court concluded that a fact issue exists as to whether the language could be construed to mean “that skiers assume inherent risks of the sport without relieving [the ski company] of its own negligence” or that “[t]he language might also be construed as an exculpatory clause.” 120 Wis. 2d 681, Id. at *2. Another [*20] question of fact that precluded summary judgment was “whether the [unsigned] ticket was intended as part of the contract.” 120 Wis. 2d 681, Id. at *1 n.1. Here, unlike in Hackel, neither the existence of an exculpatory clause nor the intention that it be a part of the contract is in question. It is undisputed that Lee agreed to the exculpatory clause in the season-pass agreement before receiving the season-pass card.

Even if the season-pass card and season-pass agreement are construed together, they do not create an ambiguity. [HN16] “Terms in a contract should be read together and harmonized where possible,” and “the specific in a writing governs over the general.” Burgi v. Eckes, 354 N.W.2d 514, 518-19 (Minn. App. 1984). Accordingly, the season-pass agreement’s specific language excluding greater-than-ordinary negligence from the scope of the exculpatory clause supersedes the season-pass card’s general language on the inherent risks of skiing. The district court correctly determined that the exculpatory clause is limited to a release of liability arising out of negligence only and granted summary judgment in favor of Wild Mountain.

Because we conclude that an unambiguous and enforceable exculpatory clause [*21] bars the Bergins’ claim of ordinary negligence, we decline to reach the issue of whether the doctrine of primary assumption of risk also bars the claim of ordinary negligence.

Affirmed.