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

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

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

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

Plaintiff: Wilberto Melendez

Defendant: Happy Trails and Riding Center, Inc.

Plaintiff Claims: Negligence and Recklessness

Defendant Defenses: Release and Pennsylvania Equine Liability Protection Act

Holding: For the plaintiff

Year: 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

In this decision those facts included:

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

Combined with the next sentence:

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

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

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

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

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

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

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

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

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

For other Equine Liability Act articles see:

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

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

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

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

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

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

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

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

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

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

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

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

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

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

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

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

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

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

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

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

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

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

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

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

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

II. Statement of Undisputed Facts

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

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

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

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

….

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

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

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

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

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

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

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

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

….

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

….

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

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

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

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

III. Standard of Review

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

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

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

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

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

IV. Analysis [*9]

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

A. Exculpatory Agreement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cody Kemble’s negligence consisted of the following:

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

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

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

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

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

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

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

B. Equine Activities Immunity Act

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

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

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

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

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

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

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

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

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

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

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

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

V. Conclusion

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

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

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

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

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

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

 


Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.

The decision came down as generally expected, an avalanche is snow and any type of snow is an inherent risk assumed by skiers and boarders as defined by the Colorado Skier Safety Act.

Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532

State: Colorado, Supreme Court of Colorado

Plaintiff: Salynda E. Fleury, individually on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris

Defendant: IntraWest Winter Park Operations Corporation

Plaintiff Claims: negligence and wrongful death

Defendant Defenses: Colorado Skier Safety Act

Holding: for the defendant

Year: 2016

The deceased went  skiing at Winter Park. While skiing he rode a lift to Trestle Trees run, an inbounds run at Winter Park. An avalanche occurred, and the skier was killed.

The Colorado Avalanche Information Center, (CAIC) had been issuing warnings about avalanches based on new heavy snows. Winter Park admitted knowing about the warnings and knowing that there was the possibility of unstable snow on Trestle Trees run. Winter Park also never posted warning signs about the avalanche risk or closed runs.

Side comment: What would you do if you saw a sign that said warning, increased likelihood of avalanches today?

The plaintiff sued, and the trial court dismissed the case based on the Colorado Skier Safety Act (CSSA). The appellate court in a split decision upheld the trial court ruling. The Colorado Supreme Court granted certiorari and heard the case.

Certiorari is granted when an appeal to an appellate court to hear a case is approved. There is no automatic right of appeal to the Colorado Supreme Court for civil cases (most of the time) so the party that wants to appeal has to file an argument why the Supreme Court should hear their appeal. If the appeal is granted, then a Writ of Certiorari is issued telling the parties to bring their case to the court. Certiorari is Latin for “to be informed of, or to be made certain in regard to.”

When a Writ of Certiorari is granted, most times the arguments to be presented to the court are defined by the court.  Here the writ was issued to:

Whether, for the purposes of the Ski Safety Act (“SSA”) of 1979, codified at sections C.R.S. 33-44-101 to -114 (2014), the term “inherent dangers and risks of skiing,” as defined in C.R.S. 33-44-103(3.5) (2014), encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers at the time in question.

Probably, because of the value of the decision to the state, skiing is a big economic driver and because of the split decision at the Colorado Court of Appeals, the Supreme Court heard the case and issued this decision.

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

The entire issue revolves around interpreting once section of the CSSA. The words or phrases the Court liked at are highlighted.

C.R.S. §§ 33-44-103. Definitions.

(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

If an avalanche is an inherent risk as defined by the CSSA, then a skier/boarder/tele skier, etc., assumes the risk and cannot sue the ski area for any injury or claim.

Does the phrases weather conditions and snow conditions as they exist or may change encompass or the term Avalanche or can an Avalanche be defined by such phrases.

One obvious way in which a snow condition “may change” is through movement of the snow, including by wind and gravity. And at its core, an avalanche is moving snow caused by gravity. The dictionary definition of “avalanche” is “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice.”

The court found that the phrases in the CSSA defined an avalanche.

At bottom, then, an avalanche is one way in which snow conditions may change. As alleged here, snow conditions started with fresh snow on unstable snowpack, and, within moments, changed to a mound of snow at the bottom of the incline. We therefore, conclude that Norris’s death is alleged to have been caused by changing snow conditions.

The decision was fairly simple for the court to reach.

Because an avalanche is, at its essence, the movement of snow, and is therefore, a way in which snow conditions may change, we hold that section 33-44-103(3.5) covers in-bounds avalanches. It follows that section 33-44-112 precludes skiers from suing operators to recover for injuries resulting from in-bounds avalanches.

There was a dissent to this opinion joined by one other judge who interpreted the issues along the arguments made by the plaintiff. An avalanche was not a snow condition but was an event. As such, it does not fall within the inherent risks of the CSSA.

The dissent was further supported by the idea that the statute was broad but the inherent risks were narrow in scope. If the legislature wanted avalanches to be included as an inherent risk, the legislature would have placed it in the statute when enacted, or anytime it has been modified since enactment.

So Now What?

Under the CSSA, an inbound movement of snow, an avalanche is an inherent risk of skiing and as such, a skier injured or killed by such snow assumes the risk of the injury.

The decision also provides some insight into how the court may interpret the risks of skiing in the future. In general, the CSSA is to be interpreted broadly. Skiing is a risky sport, and the CSSA was enacted to promote skiing and to identify, in advance the risk a skier must assume in Colorado.

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In most you assume the risk of the risks of the sport (but not all) unless the defendant did something to increase that risk to you.

In this case, the defendant was snowboarding without a retention strap. His snowboard got away from him hitting a young girl. The California Appellate Court held this was not a risk the plaintiff assumed when she went skiing.

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

State: California

Plaintiff: Jennifer Campbell

Defendant: Eric Derylo

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 1999

Snowboarders argue they don’t have to wear retention straps because their binding keeps their snowboards attached to them. Snowboard bindings are not releasable. That is true until the Snowboarder sits down to adjust his board or boots and takes his bindings off or tears his bindings off his board.

Working at a ski area you see snowboards coming down the hill that have escaped from boarders.

Most state laws also say that you cannot board a lift without a retention strap.

In this case, the plaintiff was skiing down a run at Heavenly Valley Ski resort. She skied to an icy section and took off her skis and hiked down the icy section. She was sitting on the snow putting her skis back on when the accident occurred.

The defendant was snowboarding on the same run when he encountered the icy section. He sat down to take his snowboard off to walk down the icy section when his snowboard got away from him. The snowboard hit the plaintiff in the lower back.

California does not have a skier safety statute. El Dorado County, the county where Heavenly Valley Ski Resort is located does have a county ordinance requiring all skiers and boarders to have a safety retention strap on their skis and boards.

The skier responsibility code also used by Heavenly requires retention straps.

The plaintiff filed this lawsuit, and the defendant filed a motion for summary judgment based on assumption of the risk. The trial court granted the motion, and the plaintiff appealed.

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

The trial court’s supporting argument for granting the defendant’s motion for summary judgment was:

The trial court concluded that primary assumption of the risk barred plaintiff’s action because injury from runaway snowboards is an “everyday risk in the sport of skiing or snowboarding.” Plaintiff contends that primary assumption of risk does not bar this action because defendant’s use of a snowboard unequipped with a retention strap amounted to conduct outside the inherent nature of the sport.

The Appellate court first went to the deciding case in California (and relied upon in most other states) concerning assumption of the risk. Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696]. The California Supreme Court in Knight defined assumption of the risk.

…ordinary duty of care to avoid injury to others is modified by the doctrine of “primary assumption of risk.” Primary assumption of the risk negates duty and constitutes a complete bar to recovery. .) Whether primary assumption of the risk applies depends on the nature of the sport or activity in question and the parties’ relationship to that activity. In the context of sports, the question turns on “whether a given injury is within the ‘inherent’ risk of the sport.”

The court then looked at California cases dealing with skiing where assumption of the risk was a basis for the defense.

…assumption of the risk applies to bar recovery for “. . . moguls on a ski run, trees bordering a ski run, snow-covered stumps, and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing.”

Knight, Id, however, does not grant immunity to “all defendants participating in sporting activity.” Defendants have a duty of care not to increase the risks to another participate “over and above those inherent in the sport.”

Meaning if you increase the risk of a sport to another participant, you have eliminated the inherent risk from the sport. Inherent risks of a sport are assumed by the participants, whether or not those risks are truly inherent or identified as inherent by statute.

The court then applied a quasi but for test to determine if the actions of the defendants in cases increased the risk unnecessarily. In a baseball game, the actions of the mascot took a spectator’s attention away from the game, and he was hit with a foul bar. The game of baseball could be played without a mascot; therefore, having the mascot increased the risk to the spectators.

In a skiing case you could ski without alcohol. Therefore, skiing drunk increases or changes the risk to the other skiers on the slope placing them at greater risk of a collision. Therefore, the inherent risk of skiing was changed when the defendant was drunk.

The court then looked at the present case as: “the question whether defendant’s use of a snowboard without a retention strap could be found by a jury to have  increased the inherent risk of injury to coparticipants from a runaway snowboard.”

The court found that both the county ordinance and the Heavenly Valley Skier Responsibility Code which was posted at the resort require the use of a retention strap. Therefore, there was a demonstrated recognition that retention straps were a necessary safety equipment to reduce the risk of runaway ski equipment.

A jury could find that, by using a snowboard without the retention strap, in violation of the rules of the ski resort and a county ordinance, defendant unnecessarily increased the danger that his snowboard might escape his control and injure other participants such as plaintiff. The absence of a retention strap could therefore constitute conduct not inherent to the sport which increased the risk of injury.

A test in the drunken skier case upheld this conclusion.

[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.”

When you assume the risk, those risks are the normal risks, even if they occur infrequently or rarely. More so, the risks you assume in a sport are not changed by the individual actions of one person.

The defendant also argued there was no proximate cause between this action in taking off his board and the injury the plaintiff suffered because the board could have gotten away from him at any time when he was taking it off to walk down the hill. The court looked at statements from the Defendant’s expert witness to refute that argument.

However, the declaration of plaintiff’s expert established that, used properly; the retention strap would have tethered defendant’s leg or boot to his snowboard. Defendant offered no evidence to refute the possibility that the strap would have provided him an opportunity to secure control of the board and prevent the accident.

The court reversed and sent the case back to the lower court for trial because “We conclude that defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport.”

So Now What?

The first obvious issue is, do not snowboard without a retention strap or a way to secure your board from getting away. Even if you take your board off to walk down the slope or work on your board/binding you need to secure the board. Skis all have breaks now days, and if you drop a ski on the slope, it will stop.

More importantly, this case looks at the upper limit of assumption of an inherent risk in a sport.

The inherent risks of a sport are those risks that are part and parcel of the sport or activity. Without those risks, the sport would not be what it is. Remove the inherent risks and the sport has no value to the players.

In skiing, most ski area safety statutes have broadened the definition of the inherent risk of skiing to include numerous other risks. Several other state statutes have done the same for other activities.

California has not defined the inherent risk of skiing except through case law. Consequently, each new injury a skier suffers on the slope is defined afterwards by the courts as being an assumed risk or not, rather before the injured guest starts skiing.

Here, the inherent risks of skiing were tightened in California, and I would guess most other courts would come to the same conclusion.

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Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

JENNIFER CAMPBELL, a Minor, etc., Plaintiff and Appellant, v. ERIC DERYLO, Defendant and Respondent.

No. C030104.

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

October 14, 1999, Decided

SUBSEQUENT HISTORY: [***1] Review Denied January 13, 2000, Reported at: 2000 Cal. LEXIS 132.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of El Dorado County. Super. Ct. No. SV1129. Suzanne N. Kingsbury, Judge.

DISPOSITION: The judgment is reversed. Plaintiff shall recover costs.

COUNSEL: Law offices of Edwin E. Williams and Edwin E. Williams for Plaintiff and Appellant.

Caulfield, Davies & Donahue, James R. Donahue and Catherine A. Woodbridge for Defendant and Respondent.

JUDGES: Opinion by Callahan, J., with Kolkey, J., concurring. Blease, Acting P. J., concurred in the result.

OPINION BY: CALLAHAN

OPINION

[*825] [**520] CALLAHAN, J.

Jamie Xelowski, as guardian ad litem of her daughter Jennifer Campbell, a minor, plaintiff, appeals from a judgment granting defendant summary judgment in this negligence action against defendant Eric Derylo. The trial court ruled that the doctrine of primary assumption of risk precluded plaintiff from recovering for injuries [**521] sustained when defendant’s runaway snowboard hit Jennifer in the back. We shall reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 1994, Jennifer, then 11 years old, was skiing down the World Cup [***2] ski run at the Heavenly Valley Ski Resort when she stopped and removed her skis due to ice on the slope. She walked down the remainder of the hill and at the bottom sat down to put her skis back on. At this time defendant Derylo, then age 17, was snowboarding down the same run. He stopped approximately 100 yards from the bottom and removed his snowboard due to fatigue and ice on the slope. After he had removed his feet from the bindings, the snowboard slid out of his control and down the slope, hitting Jennifer in the lower back.

An El Dorado County ordinance, as well as the skier responsibility code posted at Heavenly Valley, require participants to wear a retention strap that attaches to the bindings of the board and is secured to the snowboarder’s leg or boot. For purposes of this motion, it is uncontested that defendant’s snowboard was not equipped with such a strap on the day of the accident.

[*826] Defendant moved for summary judgment on the basis of assumption of risk. The trial court granted the motion on the ground that the danger of being injured by runaway snowboards was inherent in the sport of skiing and there was no evidence of recklessness on the part of defendant. [***3] Plaintiff appeals.

DISCUSSION

(1) [HN1] On appeal from an order granting summary judgment, the reviewing court conducts a de novo examination of the record to determine whether the moving party was entitled to summary judgment as a matter of law or whether genuine issues of material fact remain. ( [HN2] Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal. App. 3d 205, 212 [285 Cal. Rptr. 717].)

“We independently review the parties’ papers supporting and opposing the motion, using the same method of analysis as the trial court. . . . [HN3] The moving party bears the burden of proving that the claims of the adverse party are entirely without merit on any legal theory. . . . The opposition must demonstrate only the existence of at least one triable issue of fact . . ., and all doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion.” ( Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, 1836 [20 Cal. Rptr. 2d 913], [***4] citations omitted.)

The trial court concluded that primary assumption of the risk barred plaintiff’s action because injury from runaway snowboards is an “everyday risk in the sport of skiing or snowboarding.” Plaintiff contends that primary assumption of risk does not bar this action because defendant’s use of a snowboard unequipped with a retention strap amounted to conduct outside the inherent nature of the sport.

(2a) In Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] and its companion case Ford v. Gouin (1992) 3 Cal. 4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724, 34 A.L.R.5th 769], the Supreme Court concluded that the [HN4] ordinary duty of care to avoid injury to others is modified by the doctrine of “primary assumption of risk.” Primary assumption of the risk negates duty and constitutes a complete bar to recovery. ( [HN5] Knight, supra, at pp. 309-310, 314-316.) Whether primary assumption of the risk applies depends on the nature [***5] of the sport or activity in question and the parties’ relationship to that activity. ( Id. at p. 313.) In the context of sports, the question turns on “whether a given injury is within the ‘inherent’ risk of the sport.” ( Staten v. Superior Court (1996) 45 Cal. App. 4th 1628, 1635 [53 Cal. Rptr. 2d 657].)

In Knight, a defendant carelessly knocked over a coparticipant and stepped [**522] on her hand during a touch football game. (3 Cal. 4th at pp. 300-301.) The [*827] conduct was deemed an inherent risk of the sport and therefore recovery was barred under primary assumption of risk. ( Id. at p. 321.) The court in Knight reasoned that “. . . vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.” ( Id. at p. 318.)

In the context of skiing, courts have held that primary assumption of the risk applies to bar recovery for “. . . moguls on a ski run ( Knight v. Jewett, supra, 3 Cal. 4th 296, 315-316), trees bordering a ski run ( Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal. App. 3d 111 [266 Cal. Rptr. 749]), [***6] snow-covered stumps ( Wright v. Mt. Mansfield Lift (D.Vt. 1951) 96 F. Supp. 786), and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing.” ( O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal. App. 4th 188, 193 [35 Cal. Rptr. 2d 467].) A runaway snowboard resulting from ordinary skier carelessness would seem to fit within the realm of those risks inherent to the sport. 1

1 We quickly dismiss plaintiff’s contention that there is a triable issue over whether plaintiff and defendant were coparticipants. At Heavenly Valley Ski Resort, skiers and snowboarders share the same slope. Both parties were in a designated ski area; moreover, putting on and taking off equipment is an integral part of the sport. Skiing, like ice skating, is a sport which may be engaged in just as well alone as with others. There is no requirement that athletes be acquainted with each other or join together in order to be considered coparticipants within the meaning of Knight. (See Staten v. Superior Court, supra, 45 Cal. App. 4th at p. 1633 [figure skater assumes risk of collision with other skaters even when skating solo, where “proximity to one another created certain risks of collision”].)

[***7] Knight however does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that [HN6] “. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (3 Cal. 4th at pp. 315-316, italics added.) Thus, even though “defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,” they may not increase the likelihood of injury above that which is inherent. ( Id. at p. 315.)

The principle is illustrated in the skiing context in Freeman v. Hale (1994) 30 Cal. App. 4th 1388, 1396 [36 Cal. Rptr. 2d 418]. In Freeman the defendant had consumed alcoholic beverages to the point of inebriation prior to skiing. While on the slopes defendant collided with plaintiff coparticipant, rendering her a quadriplegic. ( Id. at p. 1391.) The defendant claimed he was immune from liability because the plaintiff had assumed [***8] the risk of harm by participating in the sport. (Ibid.) The Fourth District reversed summary judgment for the defendant.

[*828] While conceding that inadvertent collisions are an inherent risk of skiing and therefore assumed by participants (30 Cal. App. 4th at p. 1395), Freeman pointed out that the consumption of alcoholic beverages, an activity not ordinarily associated with skiing, may have unnecessarily increased the risk of collision. Furthermore, “the increased risks presented by the consumption of alcohol are not inherent in the sport of skiing.” ( Id. at p. 1396.) A skier has a duty not to increase the risks of the sport beyond those inherent, and summary judgment is improper where the [**523] circumstances suggest that the defendant engaged in activity that increased the risk. ( Id. at p. 1397.)

In Lowe v. California League of Prof. Baseball (1997) 56 Cal. App. 4th 112, 123 [65 Cal. Rptr. 2d 105], the plaintiff was a spectator at a minor league baseball game. He was sitting in an uncovered section of the stadium when a foul ball struck him in the face. Immediately prior to being struck, the [***9] team’s mascot was behind the plaintiff and his tail was hitting the plaintiff on the head and shoulders. The plaintiff turned to see what the mascot was doing and as he was turning back around to face the field, a foul ball hit him. ( Id. at pp. 116-118.)

While agreeing that the risk of being hit with a foul ball was inherent in the sport of baseball and therefore assumed by spectators, the court, relying on Knight, held that the defendant had a duty not to increase the risk of a spectator being struck. ( Lowe v. California League of Prof. Baseball, supra, 56 Cal. App. 4th at p. 123.) Summary judgment was improper because, “. . . whether such antics [by the mascot] increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.” (Ibid.; see also Branco v. Kearny Moto Park, Inc. (1995) 37 Cal. App. 4th 184, 193 [43 Cal. Rptr. 2d 392] [bicycle jump’s unsafe design may have increased risk to bicycle racers].)

Finally, in Yancey v. Superior Court (1994) 28 Cal. App. 4th 558 [33 Cal. Rptr. 2d 777], the court ruled that a participant in discus throwing owed a duty to a coparticipant [***10] to ascertain that the target area was clear before releasing the discus onto the playing field. In reversing summary judgment, the court found that the inherent risks of discus throwing do not include being injured by a discus thrown with no regard for its potential path. ( Id. at p. 566.)

(3a) Here, we are confronted with the question whether defendant’s use of a snowboard without a retention strap could be found by a jury to have [*829] increased the inherent risk of injury to coparticipants from a runaway snowboard. 2 The factual showing below demonstrates triable issues of fact.

2 At the hearing on the motion, plaintiff’s counsel listed four separate acts or omissions by defendant which he contended went beyond “ordinary careless conduct” and increased the inherent risk to Jennifer: (1) failure to wear a retention strap; (2) taking the board off on a steep slope without consideration for downhill skiers; (3) failure to move to the edge of the slope before removing his snowboard; and (4) failure to leave one foot in his snowboard and walk down the slope. This appeal focuses solely on the absence of a retention strap. We agree with plaintiff’s implicit concession that each of the other instances of misfeasance mentioned by counsel constitutes mere ordinary negligence which is not actionable under the doctrine of primary assumption of the risk.

[***11] Both El Dorado County Ordinance No. 9.20.040, subdivision A6, and the skier responsibility code which was posted at Heavenly Valley Ski Resort, require the use of a retention strap. These safety regulations demonstrate a recognition that retention straps reduce the risk of injury from runaway ski equipment. As the declaration of plaintiff’s expert explains, this requirement is especially important when it comes to snowboards because, unlike skis which are equipped with automatic braking devices, snowboards have no built-in stopping mechanism. A jury could find that, by using a snowboard without the retention strap, in violation of the rules of the ski resort and a county ordinance, defendant unnecessarily increased the danger that his snowboard might escape his control and injure other participants such as plaintiff. The absence of a retention strap could therefore constitute conduct not inherent to the sport which increased the risk of injury. 3

3 We decline to address the issue of whether Evidence Code section 669, read in conjunction with El Dorado County Ordinance No. 9.20.040, subdivision A6, establishes an independent duty of care which overrides the primary assumption of risk doctrine. The Supreme Court granted review in Cheong v. Antablin (1997) 16 Cal. 4th 1063 [68 Cal. Rptr. 2d 859, 946 P.2d 817], purportedly to settle this question, but ended up avoiding it by concluding that the ordinance evinced “no clear intent to modify common law assumption of risk principles.” ( Id. at p. 1069.) As evidenced by the four separate concurring opinions in Cheong (including one by the author of the majority opinion, Justice Chin), there appears to be no clear consensus on the high court about this issue.

[***12] [**524] (2b) Our conclusion is consistent with the test advanced by Freeman to determine what risks are inherent in a sport: [HN7] “[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (30 Cal. App. 4th at p. 1394.) Freeman found that “[t]he consumption of alcoholic beverages could be prohibited during or shortly before skiing without fundamentally altering the nature of the sport.” ( Id. at p. 1396.) The doctrine of primary assumption of risk was not an absolute bar to recovery because the risks associated with skiing while under the influence of alcohol are not inherent in the sport and thus not assumed by fellow participants.

[*830] In Lowe the court used similar reasoning, to conclude that “. . . the antics of the mascot are not an essential or integral part of the playing of a baseball [***13] game,” and “the game can be played in the absence of such antics.” (56 Cal. App. 4th at p. 123.)

Thus, “. . . the key inquiry here is whether the risk which led to plaintiff’s injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game.” ( Lowe v. California League of Prof. Baseball, supra, 56 Cal. App. 4th at p. 123.) (3b) Use of a mandatory retention strap would not impede or alter the sport of snowboarding. On the contrary, retention straps can be used “without fundamentally altering the nature of the sport.” ( Freeman v. Hale, supra, 30 Cal. App. 4th at p. 1396.) Furthermore, use of a retention strap would in no way chill or deter vigorous participation in skiing or snowboarding. ( Knight v. Jewitt, supra, 3 Cal. 4th at p. 317.)

Defendant claims that he was entitled to summary judgment in any event, because he would necessarily have removed the strap in order to walk down the slope. According to this argument, the board would have hit plaintiff regardless of whether it was equipped with a strap. Defendant is essentially arguing that proximate cause [***14] was lacking as a matter of law.

However, the declaration of plaintiff’s expert established that, used properly, the retention strap would have tethered defendant’s leg or boot to his snowboard. Defendant offered no evidence to refute the possibility that the strap would have provided him an opportunity to secure control of the board and prevent the accident. The record therefore presents a triable issue as to whether defendant’s use of a snowboard without a retention strap was the proximate cause of plaintiff’s injuries. Since all inferences in a summary judgment dispute are to be drawn in favor of the party opposing the motion ( Tully v. World Savings & Loan Assn. (1997) 56 Cal. App. 4th 654, 660 [65 Cal. Rptr. 2d 545]), defendant did not eliminate proximate cause as a triable issue.

We conclude that defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport. The doctrine of primary assumption of the risk is not an absolute bar to recovery on these facts, because the lack of a retention strap could be found by a jury to have increased the risk of harm to plaintiff beyond what was inherent in the sport of skiing. Defendant [***15] also did not establish as a matter of law that the lack of a retention strap was not a proximate cause of plaintiff’s injuries. Accordingly, summary judgment was improperly granted.

[*831] [**525] DISPOSITION

The judgment is reversed. Plaintiff shall recover costs.

Kolkey, J., concurred. Blease, Acting P. J., concurred in the result.

Respondent’s petition for review by the Supreme Court was denied January 13, 2000. Kennard, J., and Chin, J., were of the opinion that the petition should be granted.


If you have a manual, you have to follow it, if you have rules, you have to follow them, if you have procedures, you have to follow them, or you lose in court.

Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

Defendant with spin cycle class loses this lawsuit because they simply failed to follow their own rules and procedures. Consequently the plaintiff did not know or understand the risks of riding a spin bike and could not assume the risk.

State: New York, Supreme Court of New York, New York County

Plaintiff: Wolf Scheck and Lynn Scheck

Defendant: – Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the risk

Holding: for the plaintiff

Year: 2012

This is interesting because of how the defendant lost the case. The plaintiff and his wife wanted to try spin classes for fitness. They registered for a spin class not knowing how or what a spin class was. New people in the class were told to arrive 15 minutes early to have an introduction and training in the equipment and the class.

The plaintiff argues he was not properly instructed on the use of the equipment, and the dangers of the equipment were not readily apparent. Those dangers were increased by the defendant’s actions by not properly instructing the class and training the plaintiff.

It appears that the plaintiff arrived late, as his wife was already there. The information provided to the plaintiff was not as comprehensive as the information provided to the plaintiff’s wife.

A spin cycle is a fixed gear bicycle meaning the pedals do not coast but rotate once each side for every wheel rotation.

The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still and let the wheel spin. Just pushing with your feet to attempt to stop the wheel is futile “unless you have very strong legs.”

During the class, the defendant stood up when told and injured his knee. Beginners are normally told not to stand up in spin classes. The plaintiff sued for his knee injury. The defendant filed a motion for summary judgement based on assumption of the risk, which was denied leading to this decision.

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

The first mistake is the defendant had a release but did not have either the plaintiff or the plaintiff’s spouse sign one. The validity of the release might have been at issue because the defendants paid a fee for an exercise class which might trigger General Obligation Law § 5-326 voiding the release. See NY court explains how it interprets § 5-326, which disallows releases in NY. Upholds release for a marathon for more about how this statute bars some releases in New York.

The defendant failed to follow numerous requirements for the class which it had set out either in how it dealt with people or in a manual it created for this situation. Those requirements included the following:

·        The defendant employee adjusted the seat height for the plaintiff and showed him where the brake was, however, the employee did not know how to use the brake.

·        Instructions were given to the defendant’s spouse, but not the defendant on several safety issues.

Ms. Regan, the Soul Ccycle instructor, recalls helping Mrs. Scheck get her bike ready for the class and spending a lot of time with this particular student. She testified she has a “spiel” she gives to beginners, consisting of how to use the resistance, where the emergency brake is and assuring them that there is no need to keep up with anyone else. Although she gave these instructions to Mrs. Scheck, she does not recall telling Mr. Scheck the same thing. Ms. Regan states she always asks beginners to raise their hand so she can spot them and keep an eye on them. She does not recall whether Mr. Scheck raised his hand or, if he did, whether she saw him.

·        Although they were requested to arrive 15 minutes early for training, the defendant’s employee only spent 2 minutes with them explaining the class and the spin cycle.

·        The instructors “…usually warn beginners not to get up out of the saddle. None of the defendant employees did give this warning to either defendant, and the plaintiff was injured when he stood up to pedal when the instructor told him too.

The defendant had a training manual to be used. The training manual required.

…instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.”

None of the items listed in the training manual were followed except for providing the plaintiff with free shoes.

Assumption of risk was defined according to New York law and how it was going to be applied in this situation. For assumption of risk to be effective, the risks cannot be increased. “A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks.” There is a duty on the dependent to make the conditions as safe possible. “Furthermore, the defendant has a duty to make the conditions as safe as they appear to be.”

The defendant’s duty, for the plaintiff to assume the risk, is measured against the risks known by the plaintiff. “…when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered.”

The court then pointed all the problems the defendant created by not instructing the new plaintiff in spinning. The court summed up its analysis of the failures of the defendant to instruct the plaintiff by pointing out the defendant had a manual that required the employees to do each thing the manual required “The Soul Cycle training manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.”

A participant in a sporting activity is held to have consented to the risks inherent in it “[i]f the risks of the activity are fully comprehended or perfectly obvious” and that “participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation”

The court also found that use of a gym or health club was not a sporting event which allows for increased risks to be assumed by the plaintiff and allows for the plaintiff to not fully understand some of the risks. A player in a sporting event assumes the risk of the game; including those he or she may not fully understand.

In this case, defendants have failed to prove, as a matter of law, that plaintiff assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals; the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the risks which he was subjected to. There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment.

The case was set for trial.

So Now What?

Remember that assumption of the risk is accepting a known risk. By not instructing the plaintiff properly before the class began, the plaintiff could not assume the risk because the plaintiff did not know the risk. The defendant knew the risks, and had rules that required them to inform the plaintiff of the risks.

This fact was emphasized by the court several times pointing out the defendant’s manual required something to be done, which was not done.  

If you write it down and call it a manual, plan, standard, rules or regulations you better follow it every time.

What do you think? Leave a comment.

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Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

[**2] Wolf Scheck and Lynn Scheck, Plaintiff(s), -against- Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice, Defendant(s). Index No.: 104046/10

104046/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

July 26, 2012, Decided

August 2, 2012, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: bike, spin, cycle, wheel, brake, leg, assumption of risk, pedal, shoes, summary judgment, stationary, feet, gym, instructor, beginner, clerk’s, resistance, bicycle, spinner, front, heightened, sport, weighted, regular, street, online, minutes, rider, issues of fact, risks inherent

JUDGES: [*1] PRESENT: Hon. Judith J. Gische, J.S.C.

OPINION BY: Judith J. Gische

OPINION

Decision/Order

Upon the foregoing papers, the decision and order of the court is as follows:

Gische J.:

This is a negligence action for personal injuries. Now that issue has been joined and the note of issue was filed, defendants move for summary judgment. Plaintiffs raise the issue of the untimeliness of this motion, arguing that the motion was brought more than 120 days after the Note of Issue was served and filed.

CPLR 3212 provides that any party may move for summary judgment after issue has been joined and, If no date is set by the court, such motion shall be made “no later than [120 days] after the filing of the note of issue…” SCROLL (the Supreme Court Records On Line Library) shows that the Note of Issue was stamped “received” in the [**3] Trial Support Office on June 27, 2011, but the fee was paid and accepted by the New York County Clerk’s Office on June 29, 2011. Defendant’s motion was served by mail on October 26, 2011. A motion on notice is “made” when it is served (CPLR 2211). Papers are filed when they are delivered to the court clerk or the clerk’s designee (see Matter of Grant v. Senkowski, 95 N.Y.2d 605, 744 N.E.2d 132, 721 N.Y.S.2d 597 [2001]). Furthermore, [*2] not only does the Note of Issue have to be filed with the County Clerk, it must be accompanied by the payment of the appropriate fee, as prescribed by CPLR 8020 (Uniform Civil Rules for the Supreme Court and the County Court, 22 NYCRR 202.21).

Since the Note of Issue was paid for and filed with the County Clerk on June 29, 2011, and defendants’ motion was “made” on October 26, 2011, when it was served by mail, it was timely made within the 120 day statutory period (CPLR 3212 [a]; Gazes v. Bennett, 38 A.D.3d 287, 835 N.Y.S.2d 1 [1st Dept 2007]; see also, Nolan v. J.C.S. Realty, 79 AD3d 414, 910 N.Y.S.2d 906 [1st Dept 2011]). The motion, therefore, will be decided on its merits (CPLR § 3212; Brill v. City of New York, 2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 [2004]).

Facts and Arguments

This action arises from events that occurred on December 25, 2009 (“date of the accident”) at “Soulcycle,” located on 83rd Street and Lexington Avenue in Manhattan during an indoor cycling class. The complaint alleges that Wolf Scheck was injured while in this “spin” class. According to Mr. Scheck, taking a spin class is not the same as just riding a regular street bicycle or stationary bicycle found at any gym. He did not, however, know this before he took the class. [*3] Mr. Scheck contends he was not properly instructed or supervised in how to use the equipment and that this constitutes negligence on the part of the defendants. Mr. Scheck denies he assumed the risk of [**4] injury just by participating in the class. He claims that the danger of this activity was not readily apparent to the casual observer and was increased by the defendants’ actions.

Defendants are Soul Cycle East 83rd Street, LLC (“Soul Cycle”), the company that owns, maintains, operates, etc., the Soul Cycle facility where the accident is claimed to have occurred and Julie Rice (“Rice”), a member of the Soul Cycle LLC. Defendants contend they are entitled to summary judgment dismissing the complaint because Mr. Scheck, by voluntarily participating in Soul Cycle’s spin class assumed the risks inherent to the participation of that recreational activity, thereby relieving them of any duty to prevent the type of accident he complains of. Defendants deny they improperly instructed Mr. Scheck in the use of the equipment. Defendants seek the dismissal of all claims against Ms. Rice on the basis that she was not personally involved in the happening of the accident and there are no factual allegations [*4] against Ms. Rice individually. They maintain she is corporate officer.

Mr. Scheck and Mrs. Scheck1 were each deposed about the accident. Mr. Scheck testified at his EBT that his wife suggested they try a spin class. Mrs. Scheck testified at her EBT that friends had told her how they lost weight “spinning” and she was eager to try it. Neither of the Schecks had any idea what it meant to “spin” or what kind of bicycle was involved. Both of them, however, have regular exercise routines. Mr. Scheck is a two-time marathon runner, he does weight training and plays tennis. Each of the Schecks has a gym membership and has belonged to other gyms in the past.

1 Mrs. Scheck has a derivative claims for loss of consortium/services.

Mrs. Scheck registered the couple for the class online after calling the facility and [**5] asking some questions. She was told on the phone they should come to class 15 minutes early so staff could go through “the whole [regimen] for you and explain everything carefully, because I said I don’t want there to be anything that goes wrong.” When Mr. Scheck arrived for the spin class, his wife was already there. He did not check himself in or do anything other than put his things [*5] in a locker. Mrs. Scheck testified that when she arrived, she learned that Soul Cycle showed only one of them was registered for the class, even though she had payed online for two participants. Apparently that was corrected and both Mr. and Mrs. Scheck were allowed to take the class.

Once inside the classroom, a female employee approached them and asked whether they had done a spin class before. Each of them said no. Mr. Scheck testified this person suggested they sit in the back because it might be easier for them to watch what everyone else was doing. This person told Mr. Scheck to get on the bike while she adjusted the seat for him. She also showed him where the brake was, but not how to use it. Mr. Scheck testified that he did not test the brake out to see how it worked. This process took about two (2) minutes. Noticing that he was not wearing the correct shoes, the female employee told Mr. Scheck to go get bike shoes from the front desk, which he did. These shoes (later described by others who were deposed), have a cleat that locks the rider’s shoes to the pedals, preventing their feet from slipping off.

The female employee who taught the class, later identified as Marybeth Regan, [*6] was someone different than the person who had shown Mr. Scheck the equipment. Ms. Regan was seated at the front of the class on a raised platform. Once the class was under way, some of the cyclists started pedaling very fast. Mr. Scheck, however, [**6] maintained a slow pace, pedaling very slowly. Five (5) or ten (2) minutes into the class, the instructor told the cyclists to stand up for the next exercise. Scheck obliged and as he raised himself with his right leg elevated and his left leg extended, “the machine grabbed my [right] leg and pulled it around…” The pedals kept revolving, almost on their own, all the while with Scheck’s feet strapped in. Scheck heard a “pop” and intense pain. One or two persons help extricate him from the bike and he was taken to the hospital by ambulance. He later discovered he had torn the quadriceps muscle in his right leg.

Madison Warren worked at the 83rd Street facility. She was the front desk associated on the day of the accident. Ms. Warren testified at her EBT that there were only three (3) people working that day, including herself, because it was Christmas Day. Ms. Warren was asked about the procedures for purchasing classes online and what new [*7] spinners usually do when they arrive for a class. According to Ms. Warren, new spinners are asked to sit in back of the class and this is reflected in a sheet showing that the Schecks were moved from one set of bikes to another in the back. She also testified that when purchasing classes online, someone can buy more than one class, or classes for more than one person. It is required, however, that the person making the purchase check a box indicating s/he has seen the waiver before s/he can complete the transaction. A hard copy of the waiver is at the front desk and participants are asked to sign and initial them upon arrival. Ms. Warren did not know whether Mr. Scheck was handed a hard copy of the waiver when he arrived for the spin class. No log of who trains each new person is maintained by the facility, Generally, the instructor teaches to the skill level of the class: if there are many beginners, the class is easier. Regardless, of the overall skill level, instructors usually warn beginners not to get up out [**7] of the saddle. Ms. Warren testified that there is a training manual instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, [*8] 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.” Ms. Warren does not recall who assisted Mr. Scheck that day and the two employees who worked there on the day of the accident are no longer with the company.

Ms. Regan, the Soul Ccycle instructor, recalls helping Mrs. Scheck get her bike ready for the class and spending a lot of time with this particular student. She testified she has a “spiel” she gives to beginners, consisting of how to use the resistance, where the emergency brake is and assuring them that there is no need to keep up with anyone else. Although she gave these instructions to Mrs. Scheck, she does not recall telling Mr. Scheck the same thing. Ms. Regan states she always asks beginners to raise their hand so she can spot them and keep an eye on them. She does not recall whether Mr. Scheck raised his hand or, if he did, whether she saw him.

Ms. Warren and Ms. Regan were each separately asked to describe the differences between a spin bike and a stationary bike. Ms. Warren responded that, unlike a regular [*9] bicycle, a spin cycle has a single fixed wheel. Unlike a regular stationary bike, each pedal will result in one revolution of the wheel. Ms. Warren testified that she had never ridden with anyone else who had used a similar bicycle. So long as the front wheel is spinning. The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still [**8] and let the wheel spin. Just pushing with your feet to attempt to stop the wheel Is futile “unless you have very strong legs.”

Ms. Regan testified that instructs beginners that the bike has a weighted wheel and “you know [how] on a bike you can coast and stop your legs, Not on this. It’s a weighted wheel, so if you stop your legs you’re going to keep going. So you need to either turn the resistance up, or push down on the brake.” standing up in the saddle, it is important that a rider not lean on the handlebars because “you can fall forward…” She also stated that the special shoes Mr. Scheck was wearing bound his feet to the pedals and, if you fall forward, “the legs would keep going…” from the momentum “until you push down on the brake.” Ms. Regan specifically recalled that [*10] did not give these instructions to Mr. Scheck or tell him that “righty tighty” is how resistance is increased. According to Ms, Regan, this is an Instruction she gives on an individual basis, not to the entire class. When asked whether the spinner had specific instructions or warning on it, setting forth these precautions, Ms. Regan replied “no.” She also testified that the weighted wheel bike looks different than a stationary bike.

Applicable Law

On a motion for summary judgment, it is the movant’s burden to set forth evidentiary facts to prove its prima facie case that would entitle it to judgment in its favor, without the need for a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). The party opposing the motion must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action, or tender an acceptable excuse for his/her/its failure so to do (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).

[**9] Discussion

While the parties basically agree on the law, they dispute its application to the facts at bar. Plaintiff contends that by all appearances, the spin bike he voluntarily agreed to use during his class looks like any other stationary [*11] bike and that when he signed up to take a spin class he assumed It was like riding any other stationary bike he had seen in other gyms. Thus, his argument is he assumed a lower risk than it turned out to actually be. Taking this argument further, plaintiff urges the court to deny defendants’ motion because he did not assume the more heightened risk and, therefore, the doctrine of implied assumption of risk applies. Plaintiff cites extensively to the Court of Appeals opinion in Trupia v. Lake George Central School Dist. (14 NY3d 392, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010]), Trupia involved a 12 year old student enrolled in a summer school program. The child was injured when, while attempting to slide down a banister, he fell off. In the Court of Appeal’s lengthy opinion Chief Judge Lipmann wrote that:

We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school–only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable [*12] way enabled.

Plaintiff maintains, based on this language, that the doctrine of the assumption of risk is no longer a complete bar to recovery, except in very limited circumstances which are not present in this case. Defendants, on the other hand, urge the court to apply the doctrine of primary assumption of risk. The doctrine of primary assumption of risk is [**10] commonly applied in situations involving sports, both amateur and professional. A key distinction in these doctrines is that CPLR 1411, which addresses issues of comparative negligence, is applicable by its terms to implied assumption of risk (Abergast v. Board of Education, 65 NY2d 161, 480 N.E.2d 365, 490 N.Y.S.2d 751 [1985]) whereas a voluntary participant in a sporting event assumes the known risks normally associated with that sport (see Morgan v. State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Thus, defendants argue Mr. Scheck knew or should have known, and therefore consented to the foreseeable consequences of his participation in the spin class (Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]).

Plaintiff’s interpretation of the Trupia decision is unduly restrictive and ignores other, important language in that decision:

We have recognized that athletic and recreative [*13] activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation…

It is clear from the rest of the Trupia opinion that the doctrine of primary assumption of risk was not a possible defense for the defendant-school because the injury producing activity was unsupervised “horseplay” (i.e. school negligence) not an activity normally associated with the heightened risks attendant to sports activities. The Court did not, as plaintiff suggests, sweep away a legion of cases in which courts have [**11] recognized that certain sport activities present significantly heightened risk of injury. This point is evident from the Court of Appeals’ more recent decision in Bukowski v. Clarkson University (19 NY3d 353 [2012]). Bukowski involved a student whose jaw was broken [*14] when he was struck in the face with a baseball. The accident occurred when, for the very first time, he was pitching live in a cage. The court affirmed dismissal of plaintiff’s case because “there was insufficient evidence from which a jury could have concluded that plaintiff faced an unassumed, concealed, or even enhanced risk . . .”

A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks (Morgan v. State, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [player tripped on torn net]). Furthermore, the defendant has a duty to make the conditions as safe as they appear to be (Gortych v. Brenner, supra, citing Turcotte v. Fell, 68 NY2d at 439). Thus, when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered (Turcotte v. Fell, supra at 438).

Mr. Scheck agreed to take a spin class that was led by an instructor in a gym like setting. He provided shoes he was unfamiliar with, the seat was adjusted for him and he was given preliminary instructions about how the resistance on the bike worked. He was also shown the brake on the bike. No one explained the relationship between the tension knob, the brake and [*15] how the weighted wheel worked, although the instructor and Ms. Warren each acknowledged the uniqueness of the bikes used at the facility. The entire instructional phase took two minutes, even though the person assisting him knew he was new to the class and had never “spun” before. The Soul Cycle training [**12] manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.

A participant in a sporting activity is held to have consented to the risks inherent in it “[i]f the risks of the activity are fully comprehended or perfectly obvious” and that “participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v. Fell, supra at 439). There is appellate authority that use of a gym facility is not participation in a sporting event (Corrigan v. Musclemakers Inc., 258 A.D.2d 861, 686 N.Y.S.2d 143 [3rd Dept 1999]; Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998J). Furthermore, where the plaintiff is a neophyte, the level of his or her experience is taken into account (Petretti v. Jefferson Valley Racquet Club, Inc., supra). [*16] Although the doctrine of primary assumption of risk has been applied in a recreational setting where a biker is injured (Gortych v. Brenner, 83 A.D.3d 497, 922 N.Y.S.2d 14 [1 Dept 2011]; Cotty v. Town of Southampton, 64 A.D.3d 251, 880 N.Y.S.2d 656 [2nd Dept 2009]), a primary distinguishing factor is that those cases involved bikers pedaling outdoors and their injuries were due to a defective condition on the road or path they were on. In each of those cases, defendants were denied summary judgment because they failed to make a prima facie showing that the primary assumption of risk doctrine was applicable to the activity in which the plaintiff was engaged at the time of his or her accident.

In this case, defendants have failed to prove, as a matter of law, that plaintiff [**13] assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals, the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the [*17] risks which he was subjected to (Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998]). There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment. Therefore, defendants’ motion to dismiss the complaint against Soul Cycle is denied.

Defendants’ motion to dismiss the claims against Ms. Rice is granted, as plaintiff has presented no argument about why that branch of their motion should be denied. No factual claim is made that she was involved in the accident or that she acted outside her capacity as a member of the company. Therefore, the claims against Ms. Rice are hereby severed and dismissed in their entirety.

Conclusion

Defendants’ motion for summary judgment is granted only to the extent that the claims against Ms. Rice are severed and dismissed. The balance of defendants’ motion for summary judgment is, however, denied not only because Soul Cycle has failed to prove it is entitled to such relief as a matter of law, but also because there are triable issues of fact. The issue of the timeliness of this motion is decided in favor of the defendants and plaintiff’s objection to this motion as untimely is denied.

[**14] [*18] This case is ready to be tried. Plaintiff shall serve a copy of this decision and order on the Mediator who is assigned to this case and also on the Office of Trial Support so the case can be scheduled for trial.

Any relief requested but not specifically addressed is hereby denied. This constitutes the decision and order of the court.

Dated: New York, New York

July 26, 2012

So Ordered:

/s/ Judith J. Gische

Hon. Judith J. Gische, JSC