One winner for equine liability statutes. Indiana statute stops litigation based on horse kick.

However, the plaintiff in this case owned horses and participated as a volunteer in the activities. Equine liability statutes protect horses better than the horse owners.

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Plaintiff: Teresa Perry

Defendant: Whitley County 4-H Clubs Inc.

Plaintiff Claims: injuries were caused by the 4-H Club‘s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn…

Defendant Defenses: Equine Activity Statute

Holding:

The plaintiff was a volunteer with the defendant 4-H Club serving on its Equine Advisory Board. She also owned seven horses. During an event, the plaintiff walked over to a child to instruct the child to move her horse because she was at risk of being injured. The plaintiff in the process was kicked by a horse.

The plaintiff sued. The trial court dismissed the case based on the Indiana Equine Activity Statute. This appeal followed.

Summary of the case

The court fist looked at its duties when interpreting a statute for the first time.

When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.

The court then looked at the requirements of the statute and whether or not the defendant had met the requirements. First, the protection afforded by the statute does not apply unless at least one warning sign is posted on the premises.

…the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c).

The court found the signs were posted at all entrances to the horse barn and were clearly visible. However, there were no signs on the show barn where the incident occurred. However, the plaintiff admitted that she had seen the signs posted on the horse barn.

The next issue was whether or not the incident and injury the plaintiff suffered were an inherent risk of equine activities. (Really? I grew up with horses; being kicked happens…….a lot.) In this case, the plaintiff tried to argue the language in the statute did not cover the actual incident that caused her injury. Meaning the accident was not caused by an inherent risk but by negligence of the defendants.

Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:

(1) an injury to a participant; or

(2) the death of a participant;

resulting from an inherent risk of equine activities.

Ind. Code § 34-31-5-1(a). 2  The definition of “inherent risks of equine activities” is:

the dangers or conditions that are an integral part of equine activities, including the following:

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

(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.

(3) Hazards such as surface and subsurface conditions.

(4) Collisions with other equines or objects.

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

Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:

Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:

(1) who:

(A) provided equipment or tack that was faulty and that caused the injury; and

(B) knew or should have known that the equipment or tack was faulty;

(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:

(A) determine the ability of the participant to engage safely in the equine activity; and

(B) determine the ability of the participant to safely manage the particular equine;

(3) who:

(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and

(B) knew or should have known of the dangerous latent condition that caused the injuries;

if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;

(4) who committed an act or omission that:

(A) constitutes reckless disregard for the safety of the participant; and

(B) caused the injury; or

(5) who intentionally injured the participant.

The court’s analysis quasi reversed the plaintiff’s argument. If the injury was caused by an inherent risk of equine activities, then it would not matter if the defendant was negligent.

The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.”

The plaintiff’s injuries were due to an inherent risk of horses.

As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent.

Consequently, the court held the complaint was properly dismissed, and the defendant was not liable.

So Now What?

This is a great case; the statute worked. I now have to change my quote. Equine liability statutes are 100% effective. Since being passed no horse has been sued, but owners of horses are still being sued. And the statute protected one of them.

If you are subject to a statute that requires signs, post them everywhere. Post them in every location where people enter the premises. Post them on every building and every building entrance. Post them inside the building were spectators, and participants will see the signs. The signs are cheap compared to the cost of litigation.

Understand the statute and make sure you fulfill every aspect of the statute and cover all the requirements.

As this case points out, however, the statute still left a lot to lose a lawsuit over. Statutes are rarely written to provide 100% protection. Consequently, unless you want to litigate every word in the statute, use additional defenses.

1.      Use a release. As pointed out in this case, if interpreted differently or if a sign had blown away, the best defense to this lawsuit would have been a release.

2.    Educate the youth you are working with and the adults working with them. In this case, the adult was there because of her knowledge of the risks of the activity.

One point that stands out in this decision is the knowledge and experience of the plaintiff.  It is hard for someone who owns seven horses to argue that getting kicked by a horse is not an inherent risk of horses.

Would this decision be different if the plaintiff had no knowledge or experience with horses?

What do you think? Leave a comment.

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Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.

No. 92A03-1002-CT-101

Court Of Appeals Of Indiana

931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

August 16, 2010, Decided

August 16, 2010, Filed

PRIOR HISTORY: [**1]

APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.

COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.

ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.

JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.

OPINION BY: ROBB

OPINION

[*934] OPINION – FOR PUBLICATION

ROBB, Judge

Case Summary and Issue

Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.

Facts and Procedural History

The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).

On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.

In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.

The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:

14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.

15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.

16. The Equine Activities Act . . . is applicable to this case.

17. Being kicked by a horse is an inherent risk of equine activity.

18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.

Appellant’s App. at 5. Perry now appeals.

Discussion and Decision

I. Standard of Review

[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).

Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:

[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.

Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).

II. Equine Activity Statute

A. Warning Signs

Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.

Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.

The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.

1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.

B. [**11] Inherent Risk of Equine Activities

Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:

[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:

(1) an injury to a participant; or

(2) the death of a participant;

resulting from an inherent risk of equine activities.

Ind. Code § 34-31-5-1(a). 2 [HN6] The definition of “inherent risks of equine activities” is:

the dangers or conditions that are an integral part of equine activities, including the following:

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

(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.

(3) Hazards such as surface and subsurface conditions.

(4) Collisions with other equines or objects.

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.

Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:

[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:

(1) who:

(A) provided equipment or tack that was faulty and that caused the injury; and

(B) knew or should have known that the equipment or tack was faulty;

(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:

(A) determine the ability of the participant to engage safely in the equine activity; and

(B) determine the ability of the participant to safely manage the particular equine;

(3) who:

(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and

(B) knew or should have known of the dangerous latent condition that caused the injuries;

if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;

(4) who committed an act or omission that:

(A) constitutes reckless disregard for the safety of the participant; and

(B) caused the injury; or

[*939] (5) who intentionally [**13] injured the participant.

Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.

2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.

3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.

Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.

Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.

[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.

Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.

Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.

In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.

Conclusion

There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.

Affirmed.

FRIEDLANDER, [**20] J., and KIRSCH, J., concur.


Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball. However, language of the decision may apply to well written releases to stop all claims for negligence.

Decision appears to add Indiana to the list of states were a parent can sign away a minor’s right to sue for injuries.

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Date of the Decision: August 31, 2012

Plaintiff: Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant

Defendant: Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson

Plaintiff (Defendant on Appeal) Claims: negligent and violated its duty to protect Taylor by its failure to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base “such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base and, thereby, posing a clear safety hazard

Defendant Defenses: Release

Holding: Release signed by the mother of the injured plaintiff (defendant on appeal) barred claims for the inherent risks of playing softball

Again, the plaintiff on appeal was the defendant in the trial court. The defendant at the trial court level filed a motion to dismiss. The motion was denied, and the defendant appealed that decision. Because of that timeline, the defendant became the plaintiff on appeal. Because of the confusion, I’ll just refer to the parties by their names: YMCA and Thompson.

The mother of Thompson, 17 years old at the time of her injury, signed a release to allow her daughter to play softball. The release was quite bad. It did not contain solid language, the word release, or explain any risks except the inherent risks of softball. The trial court rejected the YMCA’s argument and denied its motion for summary judgment based on the release.

The YMCA appealed the decision to the Indiana Appellate Court which reversed the decision.

Of note and of interest, Indian defines negligence in three steps, not the normal four steps as defined by the appellate court in this case.

In order to prevail on a claim of negligence, a plaintiff is required to prove:

(1) a duty owed by the defendant to the plaintiff;

(2) a breach of that duty by the defendant; and

(3) an injury to the plaintiff proximately caused by the breach.”

Basically, Indiana combines the majority third and fourth step into Indiana’s third step to define the requirements to prove negligence.

Summary of the case

Thompson first argued that an Indiana statute required any release for a minor to be approved by the court before it became effective. Many states require court approval of the settlement of the claims of minors.

The court quickly dismissed this argument because the statute in question was part of the probate law of Indiana and only dealt with post injury claims. Thompson did not raise any other arguments against the release so the court declared the release valid.

The court then went through the requirements for a valid release under Indiana’s law.

It is well established in Indiana that exculpatory agreements are not against public policy. “Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent.” However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically and explicitly refer[s] to the negligence of the party seeking release from liability.'” An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Furthermore, an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity.

Of greater note was this statement from the court. “The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.”

This may lead you to believe, and I believe properly that a properly written release would top a minor’s claim for negligence under Indiana Law.

The court concluded the release signed by the mother did not release the YMCA for all negligent acts because it was written so poorly. However, it will release the YMCA for what was stated in the release, the inherent risks of softball.

The court then reviewed whether sliding into a base was an inherent risk of softball.

Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity.

So Now What?

It appears that Indiana will allow a parent to sign away a minor’s right to sue. A well-written release, including the magic word negligence, which identifies the risks other than the inherent risks, would stop a claim for negligence.

A well-written release would have eliminated half of this decision, maybe even the appeal. If the proper language, the magic word negligence and a broader definition of the risks were in the release, this case would have been decided faster and with less worthy.

What do you think? Leave a comment.

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Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant, vs. Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson, Appellees-Plaintiffs.

No. 85A05-1203-CT-138

COURT OF APPEALS OF INDIANA

2012 Ind. App. LEXIS 428

August 31, 2012, Decided

August 31, 2012, Filed

PRIOR HISTORY: [*1]

APPEAL FROM THE WABASH CIRCUIT COURT. The Honorable Robert R. McCallen, III, Judge. Cause No. 85C01-1110-CT-839.

COUNSEL: FOR APPELLANT: RANDALL W. GRAFF, ORFEJ P. NAJDESKI, LESLIE B. POLLIE, Kopka, Pinkus, Dolin & Eads, LLC, Indianapolis, Indiana.

FOR APPELLEES: JOSEF MUSSER, Spitzer Herriman Stephenson, Holderead Musser & Conner, LLP, Marion, Indiana.

JUDGES: BROWN, Judge. FRIEDLANDER, J., and PYLE, J., concur.

OPINION BY: BROWN

OPINION

OPINION – FOR PUBLICATION

BROWN, Judge

Wabash County Young Men’s Christian Association, Inc., (“YMCA”) appeals the trial court’s order denying its motion for summary judgment. The YMCA raises one issue which we revise and restate as whether the trial court erred in denying the YMCA’s motion for summary judgment. We reverse.

The relevant facts follow. On October 13, 2011, Taylor Thompson, by next friends Brian Thompson and Charlene Thompson, filed a complaint against the YMCA alleging that she was at the premises known as the Field of Dreams which was owned by the YMCA on May 28, 2009, and was injured when she slid into second base while participating in the Wabash Metro Summer Baseball/Softball League.1 The complaint alleged that the YMCA was negligent and violated its duty to protect Taylor [*2] by its failure to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base “such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base and, thereby, posing a clear safety hazard.” Appellant’s Appendix at 7. The complaint alleged that Taylor suffered serious and permanent physical injury.

1 The complaint indicated that Taylor was seventeen years old at the time of the filing of the complaint.

On November 22, 2011, the YMCA filed a Motion to Dismiss And/Or Change of Venue Pursuant to Trial Rule 12(B)(6). The YMCA alleged that Charlene, Taylor’s mother, executed a contractual document for Taylor’s participation in the Wabash Metro Summer Baseball/Softball League, and the YMCA attached the document to the motion. The form contains the following statement:

I (parent or guardian) Charlene Thompson hereby give permission for Taylor Thompson to participate in Metro League Baseball/Softball. I further understand that injuries can occur and will not hold the field, sponsor, coaching staff or league responsible for injury or medical expenses incurred while participating in practice [*3] or playing in a game. I also affirm that my child is physically fit to participate in athletic activities.

Id. at 12. The YMCA alleged that Taylor contractually agreed that there was an inherent risk to her participation in the softball game that could result in injury and that she contractually agreed that she would hold the YMCA, as alleged owner of the field, harmless for any injuries or medical expenses resulting from such injuries.

On December 22, 2011, Taylor filed a response to the YMCA’s motion to dismiss and argued that “in the case of minors, a person claiming tort damages on behalf of the minor against another person has power to execute a release on the minor’s behalf, however, the release must be approved by the Court before being effective.” Appellant’s Appendix at 14. Taylor also alleged that the document YMCA relies upon did not contemplate an injury from the negligent maintenance of the property, rather, it contemplates the foreseeable injuries which can inherently occur while playing baseball or softball. Taylor argued that the YMCA was not a party to the understanding evidenced by the document.

On December 30, 2011, the court held a hearing on the YMCA’s motion. On [*4] January 18, 2012, the court denied the YMCA’s motion to dismiss. On February 16, 2012, the YMCA filed a motion to certify the interlocutory order, which the court granted on February 21, 2012. On April 16, 2012, this court accepted jurisdiction pursuant to Ind. Appellate Rule 14(B).

The issue is whether the trial court erred by denying summary judgment to the YMCA. Initially, we note that the YMCA’s motion to dismiss was filed pursuant to Ind. Trial Rule 12(B)(6) and attached the form completed by Taylor’s mother. Therefore, we will review the YMCA’s motion to dismiss as a motion for summary judgment. [HN1] See Ind. Trial Rule 12(B) (“If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.”); New Albany-Floyd Cnty. Educ. Ass’n v. Ammerman, 724 N.E.2d 251, 255 n.7 (Ind. Ct. App. 2000) (“Although the trial court specifically granted Holman’s motion to dismiss and did not rule on his motion for summary judgment, we must nevertheless treat [*5] the former as a motion for summary judgment on review.”); Galbraith v. Planning Dep’t of City of Anderson, 627 N.E.2d 850, 852 (Ind. Ct. App. 1994) (treating the trial court’s dismissal of plaintiff’s complaint as a summary judgment for the defendant when plaintiff submitted an affidavit and the trial court acknowledged that it considered matters outside the pleadings).

[HN2] Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. [HN3] Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. [HN4] We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. [HN5] “[A] motion for summary judgment that is unopposed should be granted only if the designated materials, regardless of whether they stand unopposed by materials designated by the nonmovant, warrant it.” [*6] Starks v. Village Green Apartments, 854 N.E.2d 411, 415 (Ind. Ct. App. 2006), abrogated on other grounds by Klotz v. Hoyt, 900 N.E.2d 1 (Ind. 2009).

[HN6] In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Klinker v. First Merchants Bank, N.A., 964 N.E.2d 190, 193 (Ind. 2012). [HN7] Under Trial Rule 56(C), the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

[HN8] “In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004). [HN9] In negligence cases, summary judgment is “rarely appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the [*7] objective reasonable person–one best applied by a jury after hearing all of the evidence.” Id. Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff’s claim. Id. at 385.

We initially address Taylor’s argument that while Indiana law requires that a parent claiming tort damages on behalf of a minor against another person has power to execute a release on the minor’s behalf, the release must be approved by the court to be valid. Taylor cites Ind. Code § 29-3-9-7(b) which provides:

[HN10] Whenever a minor has a disputed claim against another person, whether arising in contract, tort, or otherwise, and a guardian for the minor and the minor’s property has not been appointed, the parents of the minor may compromise the claim. However, before the compromise is valid, it must be approved by the court upon filing of a petition requesting the court’s approval. If the court approves the compromise, it may direct that the settlement be paid in accordance with IC 29-3-3-1. If IC 29-3-3-1 is not applicable, the court shall require that a guardian be appointed and that the settlement be delivered to the guardian [*8] upon the terms that the court directs.

Taylor argues that “[n]o Indiana statute, rule, or decision authorizes a parent of a minor to sign a pre-tort waiver.” Appellee’s Brief at 5. Taylor also argues that “the Indiana statute requiring court approval of minor’s claim settlement arises out of a public policy of favoring protection of minors with respect to contractual obligations” and “[t]he statute guards minors against improvident compromises made by their parents.” Id.

The YMCA argues that Taylor’s reliance on Ind. Code § 29-3-9-7(b) “is misplaced and has no bearing on the subject matter at issue in this case, which involves a vastly different legal scenario having nothing to do with probating a disputed claim a minor has against another person.” Appellant’s Brief at 8. The YMCA also argues that if Taylor’s argument is accepted, it would render all releases signed by parents to allow their children to participate in school and sporting events ineffective and meaningless. The YMCA contends that “[i]t would be impossible for parents to obtain court approval for every release or hold harmless agreement for every club, hobby, camp, and sporting activity for each of their children.” Id. at 9.

We [*9] observe that the referenced statute governs a post-injury claim and falls under Title 29, which governs probate law, and not the issue in this case. Further, Taylor does not point to any other authority indicating that the release form was invalid. Under the circumstances, we conclude that the release form is valid. See Bellew v. Byers, 272 Ind. 37, 38, 396 N.E.2d 335, 336 (1979) (addressing a minor’s compromise claim in which the parent and natural guardian was paid an amount for the injuries to her three children in return for a release), abrogated on other grounds by Huffman v. Monroe Cnty. Cmty. Sch. Corp., 588 N.E.2d 1264 (Ind. 1992); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 206-207 (Ohio 1998) (holding that it was not appropriate to equate a pre-injury release with a post-injury release and that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activites where the cause of action sounds in negligence).

We next turn to whether the release applies to Taylor’s injury. The YMCA argues that the release form applies to Taylor’s action of sliding into second base during the softball game. [*10] The YMCA also argues that “one can take almost any on-field mishap and seek to couch it in terms of negligence by arguing for more padding, softer playing surfaces, rule changes, etc., but the fact remains that the injury arose because of a risk inherent in the game.” Appellant’s Reply Brief at 3. Taylor argues that the YMCA’s repeated reference to her injury being the result of her sliding into second base without referencing the accompanying allegations of the complaint that the injury was caused by the negligent maintenance of the second base is a glaring omission throughout the YMCA’s argument.

“It is well established in Indiana that [HN11] exculpatory agreements are not against public policy.” Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 749 (Ind. Ct. App. 2006), trans. denied. [HN12] “Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent.” Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999), trans. denied. However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically [*11] and explicitly refer[s] to the negligence of the party seeking release from liability.'” Id. (quoting Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct. App. 1998)). [HN13] An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 581 (Ind. Ct. App. 2006), trans. denied. Furthermore, [HN14] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity. Id. [HN15] The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. Id. at 581-582.

The form signed by Taylor’s mother did not release the YMCA of liability for all negligent acts because the form did not contain any specific or explicit reference to the negligence of the YMCA or owner of the field. See Stowers, 855 N.E.2d at 749 (“The Stowers’ proposed instruction set out that the Release Forms did not absolve Clinton Central of liability for negligent acts if they did not contain language specifically referring [*12] to negligence; thus, it was a correct statement of the law.”). Thus, we must determine whether Taylor’s injury was derived from a risk inherent in the nature of the activity. See Anderson, 852 N.E.2d at 581 (holding that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity).

Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity. See id. at 584-585 (observing that the plaintiff was injured when attempting to mount her horse and concluding that the plaintiff’s damages were inherent in the nature of the activity of horse riding and that the trial court did not err by granting summary judgment to the defendants). The release attached to the YMCA’s motion to dismiss indicated that the owner of the field would not be responsible for any injury or medical expenses “incurred while participating in practice or playing in a game.” Appellant’s Appendix at 12. Based upon the language in the release, we conclude [*13] that the YMCA met its burden of making a prima facie showing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law and that the burden then shifted to Taylor who did not designate any evidence to show that an issue of material fact existed. Accordingly, we conclude that the trial court erred by denying the YMCA’s motion for summary judgment.

For the foregoing reasons, we reverse the trial court’s denial of the YMCA’s motion for summary judgment.

Reversed.

FRIEDLANDER, J., and PYLE, J., concur.

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First of a kind! A release written so badly the assumption of risk language stopped the release from working for one defendant and did not cover the minors because the release did not name them.

How many times do I have to repeat this, hire an attorney to write your release? Hire an attorney that understands your activity and your guests. These releases (yes two of them) are truly ridiculous. The release attempted to cover skiing, snowboarding, “sliding,” (whatever that is) and the tubing hill. On top of that the skier responsibility code or “your responsibility code” was included in the release for tubing. Two different releases were signed for the same activity. Finally the language in the release was just plain wrong and the court pointed it out.

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

Plaintiff: James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor

Defendant:  Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr,

Plaintiff Claims: negligence

Defendant Defenses: release, assumption of risk, no duty owed

Holding: For the defendant snowtubers who hit the plaintiff’s and for the plaintiff’s against the ski area because the release failed.

 

The case is about facts that probably occur every day on a tubing hill. One group of three tubers, plaintiffs, veered into another lane in the run out. As the second group of tubers, defendant tubers, came down they hit the plaintiffs. The parents of the injured tubers filed suit against the ski area owner of the tubing hill Perfect North Slope, and the defendant tubers that hit the kids.

As luck would have it or actually extremely poor management of the legal issues and documents of the defendants; plaintiff’s signed one release to go tubing, and the defendant tubers signed a different release. The director of Snowsport’s Operations stated:

…testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms.

Both groups of defendants filed motions for summary judgment leading to this decision.

Summary of the case

The court first looked at the claims against the defendant tubers. The plaintiff’s brought the defendant tubers into the case arguing the tubers assumed a duty of care to the plaintiff’s by signing the release. The plaintiff’s quote language in the release and specifically in the “Your Responsibility Code” in the release which they argued created liability on the part of the defendant tubers.

The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.”

Your responsibility control was based on skiers and boarders on ski slopes. It is based on the simple premise that skier and boarders can turn and stop, that you can ski and board under control. In tubing, the only control, you have is to hold on or not. “Your Responsibility Code” has no bearing on tubing and in this case gave the plaintiffs away to drag in other guests of the ski area.

Under Indiana law a contract that creates a duty can create negligence. That means you sign an agreement that says you will act or not act in a certain way. You breach that duty which causes injury to the other party to the contract, under Indiana law you could be liable. The contract created the standard of care you breached.

Generally, only the parties to the contract can create the duty which can create liability. Third parties, those not identified in the contract or signors to the contract are not part or have benefits or duties from the contract. It is difficult to bring third parties into a contract unless the contract is made to benefit the third party or contemplates the third party in the contract.

Here the court agreed with the defendant tubers that the contract they signed with the defendant ski area did not create a duty of care owed to the plaintiffs. However, that conclusion was based on a very thorough and intense review of the “release” the defendant tuber’s signed. There were several sentences in the agreement that caused the court’s concern.

The signor of the agreement which contained the skier responsibility code agreed to abide by the code. The release also stated, “…as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” The plaintiff argued that those statements created an affirmative duty of care on the part of one group of tubers to another.

The ski area testified that the skier responsibility code had nothing to do with tubing. In fact, much of the deposition testimony incorporated into the decision concerning the intent of the ski area with the release was about the defendant tubers. The judge concluded: “It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other patrons, while other snow tubers did not.” The third party defendants were dismissed from the case.

Defendant Ski Areas arguments

The same confusion that led to the release from the suit of the defendant tubers worked against the ski area. There is an axiom in the law that states a contract will be construed against the person who drafted it. This means if there is a section of the contract that could be interpreted either for or against the drafter; it will be interpreted against the drafter. This applies to all releases because releases are presented to the guests on a take it or leave it basis. As the drafter, the court figures they had the best chance to write the release correctly and thus wrote the release to help the other party if the release is confusing.

Badly written releases are legally termed ambiguous. Here the court held the release was ambiguous.

“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence, and its construction is a matter for the fact-finder. An ambiguity exists where a provision is susceptible to more than one interpretation, and reasonable persons would differ as to its meaning.

A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.

Ambiguous contracts or releases cannot be upheld.

In reading the release signed by the plaintiff the court looked at whether it was intended to apply to the minor children. The first part of the release was written to prevent suits by the “signor.” In this case, the signor was the parents of the injured minors.

Only in the second part of the release, the medical authorization was there a mention to other parties, children or minors.

Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.”

Reading the contract as a whole, the court found the only part of the release that applied to the children was the medical authorization. The release part of the release only applied to the person who signed it.

The ski area was not released from the lawsuit.

So Now What?

When you have a new release, you shred, recycle, and throw out the old release. You don’t keep them around to save money or paper. The amount of paper you save is just a small percentage of what the parties will go through in a trial.

Make sure that your release does not create duties of care or promises that create liability for you or for third parties. You cannot disclaim liability for future injuries and promise not to injure a guest in the same document.

Don’t put anything in your release that could confuse or compromise the release. Here the skier responsibility code had no application to tubing and could have created liability for third parties. Why waste the space to complicate your document.

Never write, or use, a release that is confusing. Here the interpretation of several confusing sections led to the decision that could have gone either direction to some extent. Your release must be clear and distinctly understandable showing that the parties intend the document will prevent future litigation for any injuries.

The court never considered if the release covered minors. Here was a perfect opportunity for the court to hold that releases stopped suits by minors. However, the release was written so badly the court never even got to that issue.

How hard is it to include a simple phrase into a release so that other tubers are not drawn into a lawsuit? Do you think the defendant tubers are going to go tubing for a while, or for that matter, any other sport with other people they do not know? Instead of marketing and keeping people safe, the release at issue here probably helped keep people from the sport.

This contract was written to cover everything and effectively covered nothing. It just does not work to write releases to cover the world if your operation is that big. Your release must be written for the law of the state where you are operating or based and must be written to cover the activities your client’s are engaged in. Here the release was written to cover everything, written badly and ended up covering nothing.

The release in this case was a disaster. The new release was equally bad. Both were written badly and included language that made them ineffective at best and increased liability to a greater extent. It is difficult to write a release where the language voids it because you describe the risks improperly, however, this release did.

Other Tubing Cases

Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing            http://rec-law.us/So8QS8

Bad release and prepped plaintiff defeat motion for summary judgment filed by ski areahttp://rec-law.us/12mE4O1

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Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor, Plaintiffs, v. Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr, Defendants.

Case No. 4:12-cv-00027-TWP-WGH

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, NEW ALBANY DIVISION

2014 U.S. Dist. LEXIS 468

January 3, 2014, Decided

January 3, 2014, Filed

PRIOR HISTORY: Sauter v. Perfect North Slopes, Inc., 2012 U.S. Dist. LEXIS 95882 (S.D. Ind., July 11, 2012)

CORE TERMS: snow, slope, tube, tubing, lane, summary judgment, patrons, ambiguity, skiing, signor, duty of care, snowboarding, tuber, ski, affirmatively, ambiguous, signing, safely, trail, authorization, extrinsic, collision, skier, sport, seal, language used, patent, release form, ride, top

COUNSEL: [*1] For JAMES STEPHEN SAUTER, Individually and as Natural Guardian of M.S., a Minor, PIPER SAUTER, Individually and as Natural Guardians of M.S., a Minor, Plaintiffs: Louise M Roselle, Paul M. De Marco, MARKOVITS, STOCK & DEMARCO, LLC, Cincinnati, OH; Wilmer E. Goering, II, ALCORN GOERING & SAGE, LLP, Madison, IN.

For PERFECT NORTH SLOPES, INC., Defendant: Michael C. Peek, CHRISTOPHER & TAYLOR, Indianapolis, IN.

JUDGES: Hon. Tanya Walton Pratt, United States District Judge.

OPINION BY: Tanya Walton Pratt

OPINION

ENTRY ON SUMMARY JUDGMENT

Following a tragic accident which occurred at Defendant Perfect North Slopes, Inc. (“Perfect North Slopes”) on January 30, 2011, Plaintiffs James Stephen Sauter (“Mr. Sauter”) and Piper Sauter (“Mrs. Sauter”) (collectively, “the Sauters”) filed this negligence action. Perfect North Slopes is a ski resort which among other activities, offers snow tubing, a recreational activity that involves sitting on an inner tube and sliding down a hill. The Sauters were at Perfect North Slopes with their three children, T.S. age 8, J.S., and M.S. age 10 (collectively, “the Sauter children”), on January 30, 2011, for a Boy Scouts event. While snow tubing, the Sauter children veered into Defendants’, [*2] Andrew Broaddus, Stephanie Daniel,1 Christopher Daniel, Jenny Warr, and Anthony Warr (collectively, “Snow Tube Defendants”), snow tube lane, after which the Snow Tube Defendants collided into the Sauter children. As a result of the collision, M.S. suffered a brain injury.

1 The Court notes that the Complaint and CM/ECF caption use this spelling for Stephanie Daniel’s name. However, Snow Tube Defendants’ briefing uses the spelling, “Stephany Daniel.” If “Stephanie” is incorrect, the parties are ordered to file a motion to correct the error.

The Sauters filed suit against both Perfect North Slopes and the Snow Tube Defendants for negligence. Before the Court are the Defendants’ separate Motions for Summary Judgment. The issue of Perfect North Slopes’ alleged negligence has not been briefed, and the sole issue before the Court regarding Perfect North Slopes is the validity and applicability of the release form signed by Mrs. Sauter. For the reasons set forth below, Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED and the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED.

I. BACKGROUND

A. Snow Tubing and Perfect North Slopes

Perfect North Slopes is a [*3] ski resort located in Lawrenceburg, Indiana. It has terrain parks, ski slopes, and a snow tubing hill. Snow tubing involves sitting or lying inside a round inner tube and riding at a quick speed down a snow-covered slope. To reach the top of the snow tubing hill, patrons at Perfect North Slopes ride a moving walkway called the “magic carpet” up to the top of the hill. The snow tube hill is divided into multiple lanes separated by packed snow barriers approximately one foot high. On January 30, 2011, there were nine express lanes, nine regular lanes, and four super lanes on the snow tubing hill. Express lanes were longer than regular lanes and the super lanes were wider than regular lanes. The snow tubing hill flattens into a gravel lot called the “run-out” area, which is approximately 180 feet long. Snow tubers can average between 20 and 40 miles per hour down the hill.

Perfect North Slopes employees are located at the top of the snow tubing hill to direct the flow of patrons down the hill. The employees specifically determine when it is safe for patrons to proceed down the hill and they assist the patrons’ start by pushing or pulling the tubes into the designated lane. Perfect North [*4] Slopes also has employees located at the bottom of the hill to assist patrons exiting the snow tube area.

On January 30, 2011, Perfect North Slopes had rules and regulations governing use of the snow tubing hill. The rules and regulations were posted throughout the park, as well as broadcast on a loud speaker system. Only one rider was allowed per tube. Linking — allowing a number of tubers going at one time in one lane — was allowed as conditions warranted. Linking was to be single file and “[w]hen linking, tubers must hold on to each other’s short tube handles the entire time.” Dkt. 85-23 at 2. Perfect North Slopes’ website FAQs stated that, “[o]n the main hill, as many as three tubes can ‘link’ together.” Dkt. 129-10 at 2. Perfect North Slopes also recommended that parents supervise their children at all times.

B. The Releases

Before participating in snow tubing, all patrons were required to sign a release form prepared by Perfect North Slopes. On January 30, 2011, Perfect North Slopes provided the Snow Tube Defendants with a release titled “Skiing/Snowboarding/Tubing Waiver”. Mrs. Sauter was provided a release titled “Snow Tubing Release of Liability”. The [*5] two forms differed in language.

The Skiing/Snowboarding/Tubing Waiver included the following language in its “YOUR RESPONSIBILITY CODE”:

A. Always stay in control, and be able to stop or avoid other people or objects.

B. People ahead of you have the right of way. It is your responsibility to avoid them.

C. You must not stop where you will obstruct a trail, or are not visible from above.

D. Whenever starting downhill or merging into a trail, look uphill and yield to others.

E. Always use devices to help prevent runaway equipment.

F. Observe all posted signs and warnings. Keep off closed trails and out of closed areas.

G. Prior to using any lift, you must have knowledge and ability to load and unload safely.

This is a partial list. Be safety conscious.

Dkt. 85-21 at 1. This waiver also states that, “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. Each of the five Snow Tube Defendants signed this release.

Conversely, the Snow Tubing Release of Liability form did not have a personal responsibility code. It included language releasing Perfect North Slopes of liability for claims of personal injury, death and/or property [*6] damage. Dkt. 85-20 at 1 (under seal). It acknowledged acceptance of risk of snow tubing as a hazardous activity and risk of injury. It specifically stated, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). It further stated:

I, the undersigned, acknowledge that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself. I understand that my signature below expressly waives any rights I may have to sue Perfect North Slopes, Inc. for injuries and damages.

Dkt. 85-20 at 1 (under seal). Mrs. Sauter filled in the names of her three children and signed and dated this release.

C. The Collision

After Mrs. Sauter signed the release, Mr. Sauter took their three children to the “magic carpet,” where he escorted the children in line and then left. The Sauter children and Snow Tube Defendants each made their way to the top of the snow tubing hill. The Sauter children went to Express Lane 7 and the Snow Tube [*7] Defendants went to Express Lane 8. The Sauter children linked their tubes and were pushed down the lane by Perfect North Slopes employee Kelsi Carlson (“Ms. Carlson”). Unfortunately, at some point during their ride, the Sauter children veered out of their lane into Express Lane 8 and came to a stop before the end of the lane 8. Two of the Sauter children got out of their tubes and were pulling the third child in his or her tube toward the “magic carpet”. The Snow Tube Defendants had linked their five tubes and were pushed down lane 8 by Ms. Carlson. Stephanie Daniel went down the hill backwards in her tube and could not see where the tube was going. The Snow Tube Defendants collided with the Sauter children in Express Lane 8, approximately 25 feet short of the end of the snow tube slope. The Snow Tube Defendants’ tubes continued down Express Lane 8 after the collision and came to a stop in the gravel run-out area. Both Stephanie Daniel and Christopher Daniel suffered minor injuries from the collision. M.S. was knocked unconscious by the collision and was seriously injured.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, [*8] depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Finally, “neither the mere existence [*9] of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).

III. DISCUSSION

As previously discussed, the Sauters’ Complaint alleges both Perfect North Slopes and the Snow Tube Defendants were negligent. Perfect North Slopes filed a motion for summary judgment based on the Snow Tubing Release of Liability and the Snow Tube Defendants move for summary judgment on the bases that they acted reasonably at all times and owed no duty to the Sauter Children. The motion’s are addressed in turn.

A. Snow Tube Defendants’ Motion for Summary Judgment

The Court must first address whether the Snow Tube Defendants owed a duty of care to M.S., because in the absence of duty a claim of negligence necessarily fails. See Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). The Snow Tube Defendants contend they had no duty of care toward the Sauter children, and thus should be dismissed from the suit. The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing [*10] Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.” Dkt. 85-21 at 1.

In Indiana, “[i]f a contract affirmatively evinces an intent to assume a duty of care, actionable negligence may be predicated upon the contractual duty.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1268 (Ind. Ct. App. 2002). To make this determination, “it is the court’s duty to ascertain the intent of the parties at the time the contract was executed as disclosed by the language used to express their rights and duties.” Walker v. Martin, 887 N.E.2d 125, 135 (Ind. Ct. App. 2008). “Generally, only parties to a contract or those in privity with the parties have rights under a contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-15 (Ind. 1996). The Indiana Supreme Court has stated that:

One not a party to an agreement may nonetheless enforce it by demonstrating that the parties intended to protect him under the agreement by the imposition of a duty in his favor. To be enforceable, it must clearly appear that it was the purpose or a purpose of the contract [*11] to impose an obligation on one of the contracting parties in favor of the third party. It is not enough that performance of the contract would be of benefit to the third party. It must appear that it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.

Id. at 1315 (quoting Kirtley v. McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App. 1990)).

The Snow Tube Defendants argue that the Skiing/Snowboarding/Tubing Waiver does not affirmatively create a duty of care of the signor of the waiver to other patrons at Perfect North Slopes. The Court agrees. The waiver included the following general language:

A. Always stay in control, and be able to stop or avoid other people or objects.

B. People ahead of you have the right of way. It is your responsibility to avoid them.

C. You must not stop where you will obstruct a trail, or are not visible from above.

D. Whenever starting downhill or merging into a trail, look uphill and yield to others.

E. Always use devices to help prevent runaway equipment.

F. Observe all posted signs and warnings. Keep [*12] off closed trails and out of closed areas.

G. Prior to using any lift, you must have knowledge and ability to load and unload safely.

This is a partial list. Be safety conscious.

Dkt. 85-21 at 1. This list of responsibilities appears at the beginning of the waiver and by signing the waiver, a signor attests that he or she is “familiar with and will adhere to” the responsibilities. The waiver also states: “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. This statement appears within the first full paragraph of the waiver, in which the signor also acknowledges the risks of the snow sports offered at Perfect North Slopes, Perfect North Slopes’ lack of duty to warn of dangers, and that participating in snow sports is voluntary with knowledge of the aforesaid risks.

The Court is not persuaded by the Sauters’ argument that the recitation of these responsibilities, even with the acknowledgment of the signor to adhere to them, represents an affirmative assumption of a duty of care. First, the “Your Responsibility Code” includes basic safety instructions and concludes with the words, “This is a partial list. Be [*13] safety conscious.” This implies not that the list imposes affirmative duties that are actionable if ignored, but that it is a general guideline. Second, the statement that the signor will tube safely and in control is included as one of many acknowledgments in a paragraph that ends with the statement, “I . . . hereby expressly agree to accept and assume all such risks of [in]jury or death associated with the sport of snow skiing/boarding/tubing.” Dkt. 85-2 at 1. This affirmative assumption of the risks does not mention the responsibilities listed within the same paragraph. Instead, the language regarding the responsibilities includes the words “recognize,” “familiar,” and “agree.” However, it does not affirmatively state the signor “assumes” those responsibilities.

Especially considering that the Sauters are third parties to the contract between the Snow Tube Defendants and Perfect North Slopes, there is no evidence that “it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.” OEC-Diasonics, Inc., 674 N.E.2d at 1315. [*14] While performance of the responsibilities listed certainly would benefit third parties like the Sauters and M.S., there is no evidence of clear intent as required.

Further, to the extent the contract language is ambiguous regarding the assumption of a duty of care, the extrinsic evidence of record supports the Snow Tube Defendants’ position. The Director of Snow Sports Operations at Perfect North Slopes, Mike Mettler (“Mr. Mettler”), explained during his deposition that the “Your Responsibility Code” section of the Skiing/Snowboarding/Tubing Waiver was derived from the “Skier’s Responsibility Code” developed by the National Ski Areas Association as a standard code for all skiers and snowboarders. Dkt. 85-7 at 5, 111:14-20. Mr. Mettler testified that there are not standard rules for snow tubing, the “Your Responsibility Code” did not apply to snow tubing, and that snow tubing is inherently distinct from skiing or snowboarding, particularly because a snow tuber lacks the ability to steer and control the tube. Dkt. 85-7 at 5, 111:22-25; Dkt. 85-8 at 51-53, 214:22-216:21; Dkt. 85-8 at 51, 214:6-21. Perhaps also telling, the Snow Tubing Release of Liability signed by Mrs. Sauter did not [*15] include a “Your Responsibility Code” section or any similar language. Mr. Mettler testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms. He further stated that there were no distinction between the forms in terms of responsibilities while snow tubing. Dkt. 85-8 at 50, 213:7-17.

Mr. Mettler’s explanations support the conclusion that the Snow Tube Defendants did not assume a specific duty of care to other patrons. First, Perfect North Slopes did not expect or intend for snow tubers to have the exact abilities and safety responsibilities as skiers and snow boarders given the differences between the sport activities. Second, Perfect North Slopes was phasing out use of the Skiing/Snowboarding/Tubing Waiver for snow tubing, and the new form, the Snow Tubing Release of Liability, did not include any mention of responsibilities to stop and give right of way to other patrons. It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other [*16] patrons, while other snow tubers did not. The random nature of who signed which form is evidence that Perfect North Slopes considered the two forms to contain the same obligations and releases.

Accordingly, the Court finds that the Sauters have not established as a matter of law that the Snow Tube Defendants affirmatively assumed a duty of care to the Sauter children. Nor have the Sauters established a common law duty existed. Therefore, the Snow Tube Defendants’ motion is GRANTED and they will be dismissed from the suit.

B. Perfect North Slopes’ Motion for Summary Judgment

At first glance, Perfect North Slopes’ motion is seemingly straightforward, as it contends that the Sauters released all claims for liability when Mrs. Sauter signed the Snow Tubing Release of Liability form on behalf of her children. The Sauters respond with two arguments in the alternative. First, they ask the Court to invalidate the release on public policy grounds, an issue on which the Indiana Supreme Court has not spoken. Second, the Sauters contend the language of the release does not contain a waiver of claims on behalf of minors. Because the Court finds that the release is ambiguous and thus does not bar the [*17] Sauters’ claim against Perfect North Slopes, the Court will not speculate on the public policy issue raised by the Sauters.

The Sauters contend that the Snow Tubing Release of Liability does not waive a minor’s possible negligence claims against Perfect North Slopes. The Indiana standard of review for contract interpretation is as follows:

“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002). If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. City of Indianapolis v. Kahlo, 938 N.E.2d 734, 744 (Ind. Ct. App. 2010), trans. denied. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence and its construction is a matter for the fact-finder. Kahlo, 938 N.E.2d at 744. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind. Ct. App. 2004). But the fact that the parties disagree over the meaning of the contract does not, in and of itself, establish an ambiguity. [*18] Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008, 1013 (Ind. 2010) (citation omitted).

When interpreting a written contract, the court should attempt to determine the parties’ intent at the time the contract was made, which is ascertained by the language used to express their rights and duties. Kahlo, 938 N.E.2d at 744. A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Hammerstone v. Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind. Ct. App. 2013).

Claire’s Boutiques, Inc. v. Brownsburg Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013). Furthermore, an ambiguity may be patent or latent:

A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.

Weinreb v. Fannie Mae, 993 N.E.2d 223, 232 (Ind. Ct. App. 2013) [*19] (internal citations omitted). If an ambiguity arises by reason of the language used, construction of the ambiguous contract is a question of law for the court. Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 80 (Ind. Ct. App. 2010).

The Sauters present the release form as a dual-purpose document; a medical authorization on one hand, and a release of liability on the other. They argue that nowhere does the release explicitly release the claims of minors, and the only reference to minors is in regard to medical authorization. The Court agrees that at best, the release is ambiguous regarding whether a minor’s claims against Perfect North Slopes are waived.

Specifically, the release is written from the viewpoint of an adult signor. Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). In the seventh and final paragraph the release also states, “I, the undersigned, acknowledge [*20] that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself.” Dkt. 85-20 at 1 (under seal). Perfect North Slopes argues this final statement applies to the entirety of the agreement, while the Sauters argue it applies only to the medical authorization.

Contract interpretation requires “the contract to be read as a whole, and the language construed so as not to render any words, phrases, or terms ineffective or meaningless.” Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 56 (Ind. Ct. App. 2009). Here, the release inserts a specific reference to minors only regarding medical authorization. It does not reference minors regarding acceptance of risk, awareness that tubing is a hazardous activity, or releasing Perfect North Slopes from damage resulting from negligence, or any other clause. This disparity creates a susceptibility of more than one interpretation of the release’s provisions. However, if Perfect North Slopes’ interpretation that the final statement applies to the entire release was accepted, the specific [*21] reference to minors regarding medical authorization would be rendered redundant or unnecessary. Rather, it is reasonable to interpret the release as referencing minors when the release specifically applies to them, which is reiterated at the conclusion of the release. Thus, the Court finds the contract ambiguous. The ambiguity is a patent one, as it is inherent in the language of the document. In this circumstance, extrinsic evidence is not admissible or necessary to the Court’s determination. The release does not include a clear, unambiguous waiver of M.S.’s claims against Perfect North Slopes for its alleged negligence. Therefore, Perfect North Slopes’ motion is DENIED.

IV. CONCLUSION

For the reasons set forth above, the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED. The Sauters’ claims against the Snow Tube Defendants are DISMISSED with prejudice. Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED. The Sauters’ negligence claim may proceed. No final judgment will issue for the Snow Tube Defendants until the remaining claims against Perfect North Slopes are resolved.

SO ORDERED.

Date: 01/03/2014

/s/ Tanya Walton Pratt

Hon. Tanya Walton Pratt, [*22] Judge

United States District Court

Southern District of Indiana

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Indiana Equine Liability Statute used to stop litigation

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Issue of failure to post the required notice, not at issue when the plaintiff admitted reading the sign on the other building.

In this case, the plaintiff was an adult leader of a 4-H house club. The plaintiff had helped the kids and participated in the activity for years and owned seven horses. During an event, the plaintiff was moving to assist a child who had lined her horse up in a way that was irritating other horses. While moving to assist the child the plaintiff was kicked by a horse.

The event was held in a building that was only used once a year. Normally, all events were held at the horse building. The horse building had the required Indiana Equine Liability Act signs on all entrances into the building. The plaintiff had been in the Horse Building and admitted seeing the signs.

The defendant filed a motion for summary judgment, which was granted by the trial court based upon the issue that the accident was caused by a horse, and the defendant was protected under the Indiana statute. The motion was granted, and the plaintiff appealed.

Summary of the case

The plaintiff claimed the 4-H club was negligent for having a horse show in premises that were unsuitable for such activities. The plaintiff also argued that there were no warning signs as required by the statute posted around the building were the accidents occurred.

The court reviewed the statute and the required posting of the warning notice. The statute could not be used as a defense, unless there was a sign posted around the building or on the premises.

34-31-5-3.  Warning notices required.

(a)        This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.

(b)        A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.

(c)The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.

The court found that signs on the other building were sufficient to meet the requirements of the statute. It did so not by finding the signs were present, but by finding the plaintiff did not prove the signs were absent. An affidavit of the defendant stating the signs were present shifted the burden of proof to the plaintiff and the plaintiff failed to prove the necessary facts.

The plaintiff then argued that her injury did not arise from an inherent risk of an equine activity. (Really? The number-one  thing’s horses do is kick; number two is bite and number three throw  you off; This from a person who has been kicked, bitten and thrown off horses.)

The court found the plaintiff was injured by an inherent risk of hanging around horses.

The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn.

So Now What?

The obvious argument of the plaintiff was the injury was not due to the actions of the horse but because of the negligence of the 4-H. This normally is very effective in eliminating the defense of equine liability statutes. The human was liable; the horse was not the cause of the accident, just what was being ridden.

Looking at the argument a different way, the ladder failed not because the ladder broke, but because the person who placed the ladder where he did, caused the ladder to break.

The second issue is always having extra statutorily required warning signs, posting them wherever  there are horses. It would have been easy to post a sign on the entrance with tape just for the event. Better, post a warning sign near the entrance into the grounds and on every building.

Finally, this was a lucky case. Another court could have ruled the club was negligent for creating the situation. Most courts have. Since equine liability acts have been enacted, lawsuits against horses have disappeared, however, suits against horse owners are on the rise.

Like a broken record, having all the participants, youth, parents and adults sign a release would have prevented this action, or at least made it even quicker to dismiss under Indiana’s law.

Plaintiff: Teresa Perry

 

Defendant: Whitley County 4-H Clubs Inc.

 

Plaintiff Claims: Negligence

 

Defendant Defenses: Indiana Equine Liability Statute

 

Holding: For the defendant. The acts that gave rise to the plaintiff’s injuries were protected from suit by the Indiana statute.

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