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Under California law, you assume the risk of getting hit by a toboggan being towed by a snowmobile while snowboarding.

Both sides of this case created problems for themselves, and both sides stretched their credibility. In the end, it was easy for the plaintiff to lose because of that credibility gap created by the facts and when those facts were reported.

Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204

State: California

Plaintiff: Dominique Forrester

Defendant: Sierra at Tahoe

Plaintiff Claims: General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability

Defendant Defenses: assumption of the risk

Holding: for the defendant

Year: 2017

Summary

Snowboarder loses suit claiming a toboggan being towed by a snowmobile hit him on a beginner slope. By reporting the incident after he left the resort, he created a credibility issue.

In the end, getting hit by a toboggan being towed by a snowmobile is a risk you assume when skiing in California.

Facts

The facts in a case like this are always screwy to begin with and in my opinion, screwy from both sides of the litigation. The plaintiff and a friend were snowboarding. The plaintiff was filming his friend doing jumps. After the last jump, the plaintiff snowboarded toward the bottom which was on a beginner run waiting for his friend. While waiting, he heard someone yell, and he was hit by a toboggan. He hit his head suffering injuries. The plaintiff thought he saw a ski patroller driving away with the toboggan attached to the snowmobile. The fall broke some of his equipment also.

His friend saw the incident and stated that the driver was wearing a different uniform from what the plaintiff reported. Neither of them saw lights nor a flag on the snowmobile.

The plaintiff and his friend did not report the injury but drove home. On the way home they decided the plaintiff should call Sierra. He did and got a recording machine. He then started vomiting.

The next day the plaintiff hurt all over. Eventually, he was diagnosed with a concussion, a whiplash and disc degeneration.

The plaintiff called the ski area the next day and was told there was no one for him to talk to. He was to call back Wednesday. Wednesday, he called back and filed a report.

Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile” (patroller), got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.

The same day the plaintiff contacted an attorney.

The ski area investigated the claim. No ski patrollers or terrain park employees knew of any collision with a toboggan and a snowboarder.

MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they spoke recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.

Obviously, the ski area felt that no collision or accident had occurred. The case went to trial, and the plaintiff lost because the jury found he had assumed the risk of injuries.

Normally, juries like judges are asked to assemble, to a limited extent, the facts upon which they base their decision. In this case that was not done.

As we noted earlier, this case is unusual among liability cases in general because the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be.

The plaintiff appealed the decision.

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

The court first looked into the issues surrounding the snowmobile. The defendant kept a checklist that was to be completed each day before the snowmobile was ridden. The checklist was not kept after it was completed.

Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded daily unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found.

The day in question was one of the busiest of the year. The ski area employees testified that it was so buy, it would have been impossible to drive a snowmobile through the crowd on the slope in question.

The court then reviewed the evidence of the competing expert witnesses, both of whom offered testimony that at best seems stretched and will be ignored here and was ignored a lot by the court.

The court then reviewed the defenses offered by the ski area, starting with Primary Assumption of the Risk.

“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.”

Ski areas and other operators, sponsors and instructors of recreational activities have no duty to eliminate the risk. They do have a duty not to increase the risk beyond those inherent in the sport. The court based on this analysis looked at whether a toboggan is an inherent risk of skiing and boarding and found it was.

We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.

On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.

In both examples, the court compared the collisions to collisions with stationary objects, a lift tower and a tree.

The court looked at the facts in this case and concluded the incident was a collision with a toboggan, rather than a toboggan hitting a snowboarder. I suspect the facts in the two cases the court reviewed would have different conclusions if the lift tower or the tree had hit the skiers?

To reach this conclusion, the court went back to the statements of the experts of both the plaintiff and the defendant who testified that snowmobiles were a standard practice in the sport of skiing.

There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd.

The court then also looked at Secondary Assumption of Risk.

The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). In the latter class of cases, we concluded; the issue could be resolved by applying the doctrine of comparative fault, and the plain-tiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiffs knowing and voluntary acceptance of the risk functions as a form of contributory negligence.

The court held that discussing secondary assumption of risk was not necessary in this case because the jury found the defendant was not liable because of primary assumption of the risk.

The plaintiff also argued that an evidentiary ruling should have been made in the plaintiff’s favor because the defendant failed to keep the snowmobile checklist. The rules and laws of what evidence should be kept or can be destroyed to have changed dramatically in the past twenty years, and this area of law is a hot bed of litigation and arguments.

However, the court moved around this issue because the checklist was destroyed every day. The defendant gave the plaintiff a list of the possible drivers of snowmobiles at the resort. Because the checklist was only used by the first driver, and the snowmobile could have been ridden by someone other than the driver who completed the checklist, the court found it was not critical to the case. The plaintiff request of the information had occurred after the checklist had been destroyed as was the habit for the defendant.

So Now What?

First being hit by an object being towed by a snowmobile inbounds in California is an assumed risk. This is the first case f this type I have found. Every other case where the defendant has been held not liable because of assumption of the risk at a ski area was based on the skier or boarder hitting a fixed object.

Second, credibility maybe all you have in some cases. Consequently, you never want to stretch or destroy your credibility, and you do not want your experts to do the same.

Last, if you are hurt at a resort, get help at the resort. Some of the plaintiff’s injuries might have been mitigated if treated immediately.

However, all the above issues could be crap, if the jury ruled not because they believed the plaintiff assumed the risk, but because they did not believe the plaintiff at all.

What do you think? Leave a comment.

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Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204

Forrester v. Sierra at Tahoe, 2017 Cal. App. Unpub. LEXIS 5204

Dominique Forrester, Plaintiff and Appellant, v. Sierra at Tahoe, Defendant and Respondent.

C079107

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

2017 Cal. App. Unpub. LEXIS 5204

July 27, 2017, Opinion Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

SUBSEQUENT HISTORY: Review denied by Forrester v. Sierra at Tahoe, 2017 Cal. LEXIS 7927 (Cal., Oct. 11, 2017)

PRIOR HISTORY: [*1] Superior Court of El Dorado County, No. PC20120138.

CORE TERMS: snowmobile, collision, ski, inherent risk, snowboarding, sport, checklist, toboggan, driver, ski resort, skiing, unreasonably, assumption of risk, slope, secondary, emergency, resort, ski area, skier, hit, snowboarder, patroller, patrol, risks inherent, instructional error, lift, discarded, siren, suppression, tower

JUDGES: Duarte, J.; Butz, Acting P. J., Mauro, J. concurred.

OPINION BY: Duarte, J.

OPINION

Plaintiff Dominique Forrester was injured while snowboarding at defendant ski resort Sierra-at-Tahoe (Sierra) on March 7, 2010. He claimed he was hit by a toboggan, that in turn was being towed by a snowmobile, while on a beginner slope. The trial court found assumption of the risk applied to the claim, and the case went to the jury to answer the question of whether Sierra unreasonably increased the risk to Forrester above that already inherent in the sport of snowboarding. By a vote of 10 to 2, the jury answered “no.”

On appeal, plaintiff contends the trial court erred in ruling that primary assumption of the risk applied to this case, and instructing the jury accordingly. Plaintiff argues a collision with a snowmobile is not an inherent risk of snowboarding. He further contends the court incorrectly instructed the jury on secondary assumption of the risk, and erred in refusing to instruct on the willful suppression of evidence.

As we will explain, this case is unusual among liability cases in general because the very existence of the alleged accident–the collision itself–was [*2] and remains in dispute. We first conclude that unwanted contact with a snowmobile (here encompassing a towed toboggan), on a ski slope at a ski resort, is indeed an inherent risk of snowboarding. Although Forrester argues the particular alleged circumstances of the operation of the snowmobile on the day of the incident took the collision outside the boundaries of inherent risk, that issue was tendered to the jury and the jury found Sierra did not unreasonably increase the risks already inherent in snowboarding

We assume instructional error on secondary assumption of the risk but find no prejudice, and conclude that the evidence did not support an instruction on willful suppression of the evidence.

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Alleged Accident

On Sunday, March 7, 2010, Forrester met his high school friend, Franklin Medina, for a day of snowboarding at Sierra. That day was the busiest of the year, with about 6,370 people at the resort. Forrester described himself as an intermediate snowboarder who does not perform jumps. He did not wear ear buds or ear phones while snowboarding and did not recall ever seeing a snowmobile in a ski area before that [*3] day.

At about 3:30 or 4:00 p.m., Forrester was filming Medina doing jumps. After the last jump, Medina snowboarded down the run to wait for Forrester. The bottom area of the ski run is known as Broadway; it is a beginner run near the teaching area and close to the lodge.

According to Forrester, as he began to snowboard down Broadway, he heard someone yell “hey.” He tried to turn around and was hit in the back of the legs. He went airborne and landed on his bottom and then hit his head. His goggles cut his face. He was hurt and dizzy. The snowmobile was 30 yards away when Forrester first saw it, and the driver “took off.” Forrester thought the driver’s jacket was orange or red, but he was not sure. He assumed only ski patrollers, who wear orange-red jackets, operated snowmobiles. He thought the snowmobile driver was wearing a beanie. Forrester did not hear the snowmobile. After the collision, Forrester slid down the mountain, and some other snowboarders asked if he was okay. He did not realize his equipment was broken until he later responded to special interrogatories.

Medina claimed he saw the incident, and that the snowmobile was in front of Forrester’s path and pulling a toboggan. [*4] He saw the toboggan clip Forrester’s feet and “take him out.” The snowmobile was going two or three times faster than Forrester. Forrester took his equipment off and walked down the mountain. Medina claimed the driver of the snowmobile was wearing a black and purple vest like the ones worn by terrain park employees (rather than the orange and red jacket described by Forrester). Medina did not see any lights on the snowmobile and did not notice a flag, nor did he hear a siren.

Forrester did not report the accident, but tried to “walk off” the injury. On the way home Forrester and Medina discussed that Forrester had been hit and decided they should call Sierra. Forrester called just after 5:00 p.m. and got an answering machine. Forrester began vomiting and they stopped in Placerville where Medina took pictures of his face. Medina drove Forrester home.

The next day, Monday, Forrester hurt all over his body, including a bad headache. He went to his doctor who ordered a CT scan, the results of which were normal. Over the next few days, Forrester’s back began to hurt. He was diagnosed with a concussion and a whiplash back injury. Forrester was later diagnosed with disc degeneration with a [*5] prognosis of ongoing pain.

Reporting the Accident

Forrester called Sierra again on Monday morning. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. He called Wednesday and spoke with Evan MacClellan, the risk manager. MacClellan completed an incident report based on the phone call. The report described the injury as occurring at the bottom of Broadway near the terrain park. The report described that Forrester was hit by a “snowmobile (patroller),” got up after the incident, and did not report it. On the way home he started to vomit and went to the hospital the next day. The report listed Medina as a witness and included his telephone number.

Forrester contacted an attorney the same day he spoke with MacClellan. Forrester sent MacClellan a written report, in which he stated he “was involved in a collision with a Sierra Ski Patrol Officer (Ski Patroller) whom [sic] was driving a snow mobile, towing a stretcher. . . . The Ski Patroller was apparently attempting to cross from my left, which was behind me (I have a ‘regular’ board stance), across my face, to the right of me when he collided into me from my blind side. As a result I flew over [*6] him and crashed very hard into the mountain. I suffered a head injury, as well as whiplash, and subsequently blacked out for a short period of time.” The statement continued that Forrester did not see the “patroller” and heard no sirens; he heard only a brief “hey” right before the impact. His friend Medina had witnessed the collision and could not believe it; other snowboarders asked if Forrester was okay, but the ski patrol did not.

MacClellan spoke with the ski patrol and terrain park employees about Forrester’s claim. None of the ski patrollers on duty that day or others with whom they had spoken recalled any accident or collision. Both MacClellan and the general manager, John Rice, were suspicious of the claim; in 37 years in the ski industry, Rice had never seen a report made days after the incident. MacClellan did not call Medina, although Forrester had identified him as a witness. MacClellan could not determine that the accident actually took place. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition.

The Lawsuit and Trial

Forrester brought suit against Sierra for general negligence and [*7] premises liability. The complaint stated: “Included in the Cause of Action for General Negligence are Claims for Breach of Statutory Duty; Negligence Per Se; Gross Negligence and/or Reckless Conduct; and/or Common Carrier Liability.” Forrester took some theories of liability “off the table” and the trial court granted defendant’s motion for nonsuit as to others. As we explain in more detail, post, the matter was submitted to the jury as an assumption of the risk case, with the jury asked to determine whether Sierra unreasonably increased the inherent risks of snowboarding

Snowmobile Evidence

Sierra requires its snowmobile drivers to follow a safety checklist and check lights, brakes, and other functions before a snowmobile is taken out. The checklist is a written form detailing the items to be checked and the name of the person taking out the snowmobile. The checklist is discarded on a daily basis unless an entry triggers a need for snowmobile maintenance. Due to this practice of discarding the checklist daily, no attempt was made to find the checklists for March 7, and the driver of the snowmobile allegedly involved in the accident was never found. At trial, Sierra stipulated that anyone [*8] driving a snowmobile at the resort that day would have been employed by Sierra. The checklist would not necessarily reveal the identity of the driver of the snowmobile in any event, because once the snowmobile is checked out others may use it without completing a new checklist. Sierra maintains no record showing who is using a snowmobile at a particular time on a specific date.

A snowmobile is a loud machine; its sound is comparable to a motorcycle or lawnmower. The flashing lights are always on if the snowmobile is running, but the siren can be turned on and off. It is against Sierra’s policy to operate a snowmobile without a siren when guests are present. The snowmobile has an attached fiberglass pole with a flag atop, to aid in visibility. March 7, 2010, was a peak day and there was a blackout on the use of snowmobiles in the ski areas except for emergencies. Rice defined emergencies as ski patrol rescue, lift evacuation, a fire or gas leak on the hill, and to carry law enforcement to an altercation. There were no documented emergencies the day of the incident. MacClellan testified that with 6,000 people on the ski slopes, it would be “virtually impossible” to drive a snowmobile [*9] through the Broadway area.

The ski patrol uses orange toboggans for rescue, which are stored in different locations on the mountain and used to transport injured guests. Patrollers take them uphill by chair lift or by snowmobile. Snowmobiles are rarely used to take a toboggan down the mountain; usually a patroller skis them down. Snowmobiles do not tow injured guests in a toboggan.

Plaintiff’s Experts

In addition to medical experts, plaintiff called a ski safety consultant and an accident reconstructionist. Richard Penniman testified as an expert on ski area mountain operations. He testified it was below industry standard to have a snowmobile on the ski slopes when a large number of people are present. On a run like Broadway that is designed for beginners, it was very dangerous to have anything present other than skiers and snowboarders. It was below the industry standard to use the Broadway area as a snowmobile route. Penniman added snowmobiles are only a convenience and a ski resort can operate without them. He conceded, however, that it was standard practice for ski areas to use snowmobiles and agreed they were extremely useful in an emergency where the risk they create might be worth [*10] it. He agreed with the policy of Sierra-at-Tahoe not to use snowmobiles on busy days except in the case of an emergency. In Penniman’s opinion, Sierra’s conduct in operating a snowmobile the day of the incident increased the risk of injury to skiers and snowboarders.

Jesse Wobrock, an accident reconstructionist and bioengineer, prepared an animation of the accident. He testified the accident had “an injury mechanism for both the lumbar spine and the traumatic brain injury.” The damage to Forrester’s left binding was consistent with the height of the toboggan, as was the orange color transfer on the binding. Wobrock testified the physical evidence corroborated the eyewitness testimony. In his opinion, the snowboard went between the tread of the snowmobile and the toboggan; the toboggan ran over the snowboard.

Defense Case

John Gardiner, a forensic engineer and biomechanic, testified for the defense. He opined there was neither consistent testimony nor sufficient physical evidence to conclude what occurred that day. Gardiner testified that if Forrester’s left binding made contact with a toboggan, the contact occurred at the rear portion of the toboggan. If the contact had been near the [*11] front of the toboggan, the snowboard would have hit the treads of the snowmobile and caused damage; there was no evidence of damage to the front of the snowboard. In Gardiner’s opinion, the force involved in Forrester’s fall would not have caused a lumbar disc injury and a concussion. Gardiner also testified that Medina’s view of the accident would have been obstructed by the snowmobile and its driver and that Wobrock’s animation of the incident was inconsistent with the laws of physics and Forrester’s testimony.

The defense pointed out the many inconsistencies between Medina’s deposition and his trial testimony, such as where he dropped off Forrester, whether Forrester wore a helmet, Forrester’s level of skill on a snowboard, the time they finished snowboarding, and whether Medina saw the snowmobile before the collision. Medina had changed his story only after talking to Forrester. The defense argued the differences between the testimony of Medina and Forrester as to the color of the snowmobile, the clothing of the driver, the location of the accident, and the timing showed that Forrester failed to carry his burden of proof as to what happened. The defense questioned how Forrester [*12] could fail to see or hear the snowmobile and offered three possibilities: (1) the collision had not happened; (2) Forrester was not paying attention; or (3) Forrester saw the snowmobile, but not the toboggan and tried to cut behind. The defense argued number three was the most reasonable and Forrester did not report the accident because he felt it was his fault.

Instructions

As relevant here, the court instructed the jury as follows:

“[CACI No.] 410. Dominique Forrester claims he was harmed while participating in snowboarding at the snow — at the Sierra at Tahoe Ski resort. To establish this claim Dominique Forrester must prove all of the following:

“1. That Sierra at Tahoe was the owner of the ski resort and that its employee was operating the snowmobile in issue in this case. Sierra at Tahoe admits that it is the owner of the ski resort and only its employee would have had access to and would have been operating a snowmobile on the ski resort.

“2. Dominique Forrester must also prove that Sierra at Tahoe unreasonably increased the risk to Dominique Forrester over and above those inherent in snowboarding;

“3. And Dominique Forrester must prove that Dominique Forrester was harmed; and lastly [*13]

“4. That Sierra at Tahoe’s conduct was a substantial factor in causing Dominique Forrester’s harm.

“[Modified CACI No.] 405. Sierra at Tahoe claims that Dominique contributed to his harm. To succeed on this claim, Sierra at Tahoe must prove the following:

“1. That Dominique Forrester assumed the risks that led to his injury; and

“2. That Dominique Forrester’s assumption of those risks was a substantial factor in causing his harm.

“If Sierra at Tahoe proves the above, Dominique Forrester’s damages are reduced by your determinations of the percentage of Dominique Forrester’s responsibility. I will calculate the actual reduction.”

Verdict and Motion for New Trial

During deliberations, the jury asked for a definition of “unreasonable” and to have Rice’s testimony about reports of emergencies that day reread. With the parties’ approval, the court responded to the first request as follows: “‘Unreasonable’ – is conduct that is contrary to conduct that a prudent person would exercise in the same or similar circumstances e.g. conduct that is careless, irrational, foolish, unwise, senseless, immoderate, exorbitant or arbitrary under the circumstances.”

By a vote of 10 to 2, the jury found Sierra did [*14] not unreasonably increase the risks to Forrester over and above those inherent in snowboarding in a ski area. Because the jury’s answer to this first question was “no,” it did not answer any additional questions contained in the verdict forms.

Forrester moved for a new trial, contending assumption of the risk did not apply to the case, there were evidentiary errors, and the court erred in not instructing on suppression of evidence. The court denied the motion.1

1 The record does not contain an order denying the motion. Under Code of Civil Procedure section 660, if there was no order, the effect is a denial of the motion.

DISCUSSION

I

Assumption of the Risk

A. The Law

“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” (Gregory v. Cott (2014) 59 Cal.4th 996, 1001, 176 Cal. Rptr. 3d 1, 331 P.3d 179.) “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.” (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751, 33 Cal. Rptr. 2d 732.)

“The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or [*15] reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration–or cause abandonment’ of the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156, 150 Cal. Rptr. 3d 551, 290 P.3d 1158.) “[U]nder the primary assumption of risk doctrine, operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity. (Id. at p. 1162.)

“Snowboarding is a classic example of a sport that requires participants to assume considerable risks.” (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 603, 13 Cal. Rptr. 3d 370 (Vine).) Courts have recognized many risks inherent in skiing and snowboarding. “Those risks include injuries from variations in terrain, surface or subsurface snow or ice conditions, moguls, bare spots, rocks, trees, and other forms of natural growth or debris. They also include collisions with other skiers, ski lift towers, and other properly marked or plainly visible objects and equipment.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1202, 37 Cal. Rptr. 3d 863.)

Whether the assumption of risk doctrine applies in a particular case is a question of law.”2 (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 227, 132 Cal. Rptr. 3d 567.)

2 Although Forrester recognizes the question of whether assumption of the risk applies is a question of law reviewed de novo, he devotes a considerable portion of his briefing to arguing the trial court’s two analyses, first before trial and then on the motion for a new trial, were incorrect. “In reviewing a trial court’s decision, we review the result, not the reasoning.” (Florio v. Lau (1998) 68 Cal.App.4th 637, 653, 80 Cal. Rptr. 2d 409.)

B. Application to this Case

As we noted earlier, this case is unusual among liability cases in general because [*16] the collision itself was in dispute. Because the jury was not asked to make any preliminary factual findings, we cannot even assume that it found a collision occurred. We know only that the jury found Sierra did not unreasonably increase the inherent risk of snowboarding by its conduct on the day in question–whatever its conduct was found to be. With this in mind, we turn to Forrester’s first claim of error.

Forrester contends a collision with a snowmobile is not an inherent risk of snowboarding. He argues that although some collisions–such as with trees or other skiers or snowboarders–are inherent risks, the line should be drawn at a collision between an individual and a motorized vehicle. He asserts assumption of the risk has no role in the circumstances he claims were present here: an unmarked snowmobile with no lights, siren or flag, operated by a non-safety employee on a busy beginner slope, contrary to the safety policies of the ski resort.

Sierra counters that the circumstances Forrester claims were present here, outlined immediately above, would have unreasonably increased the risks undertaken by Forrester had the jury found the circumstances were as Forrester alleged. Sierra [*17] argues that it is apparent from the jury’s “no” vote that it found circumstances more closely aligned to those alleged by the defense, such as the absence of any collision (and even the absence of any snowmobile) whatsoever and other facts favorable to Sierra.

We first address the threshold question of whether unwanted contact with a snowmobile is, in general, an inherent risk of snowboarding. We conclude that it is.

On at least two occasions, this court has found a collision with resort equipment at a ski resort to be an inherent risk of the sport.

In Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 45 Cal. Rptr. 2d 855 (Connelly), the plaintiff collided with an unpadded ski lift tower while skiing. In affirming summary judgment for the defendant, we found this risk was inherent in the sport, and the obvious danger of the tower served as its own warning. (Id. at p. 12.) In concluding that contact with the tower was an inherent risk of the sport, the Connelly court relied on Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 266 Cal. Rptr. 749, where a skier collided with a tree. Danieley, in turn, relied on a Michigan statute that set forth certain inherent risks of skiing, including both trees and “‘collisions with ski lift towers and their components'” along with properly marked or plainly visible “‘snow-making or snow-grooming [*18] equipment.'” (Id. at p. 123.) “[B]ecause the Michigan Ski Area Safety Act purports to reflect the pre-existing common law, we regard its statutory pronouncements as persuasive authority for what the common law in this subject-matter area should be in California.” (Ibid.)

In Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 41 Cal. Rptr. 3d 389 (Souza), a child skier collided with a plainly visible aluminum snowmaking hydrant located on a ski run. Following Connelly, we affirmed summary judgment for the defendant, finding the snowmaking hydrant was visible and a collision with it was an inherent risk of skiing. (Id. at p. 268.)

A snowmobile is not one of the risks specifically identified in the Michigan Ski Area Safety Act, and we have not found a published case specifically deciding whether a collision on a ski slope with a snowmobile is an inherent risk of skiing or snowboarding. Nevertheless, collision with certain vehicles has been included. While Souza involved only stationary equipment, the Michigan Ski Area Safety Act–which Danieley and Connelly accepted as reflecting the common law–included a collision with snow-grooming equipment as an inherent risk. Thus, collisions with some vehicles are recognized as inherent risks of the sports of skiing and snowboarding.

We recognize that assumption [*19] of the risk applies only to risks that are necessary to the sport. (Souza, supra, 138 Cal.App.4th at p. 268.) In Souza, snowmaking equipment was necessary to the sport of skiing because nature had failed to provide adequate snow. (Ibid.) As in Souza, we find the following quote from Verro v. New York Racing Ass’n, Inc. (1989) 142 A.D.2d 396, 400, 536 N.Y.S.2d 262 apt: “As is at least implicit in plaintiff’s argument, if only the risks of ordinary and necessary dangers inherent in a sport are deemed assumed, the doctrine of [primary] assumption of risk . . . would not apply to obvious, known conditions so long as a defendant could feasibly have provided safer conditions. Then, obviously, such risks would not be ‘necessary’ or ‘inherent’. This would effectively emasculate the doctrine, however, changing the critical inquiry . . . to whether the defendant had a feasible means to remedy [the dangers].”

Forrester’s expert Penniman claimed snowmobiles were merely a convenience and a ski resort could operate without them. He also testified, however, that the use of snowmobiles was a standard practice at ski resorts. Although critical of their overuse, Penniman recognized their usefulness in an emergency. He agreed with Sierra’s policy, which permitted snowmobiles to be used on the ski slopes in cases of emergency, [*20] even on the busiest days. Thus Penniman agreed generally that the use of snowmobiles was necessary to ski resorts, although he disputed the specific circumstances under which that use might be warranted.

There are many inherent risks of injury and emergency in skiing and snowboarding, and snowmobiles are used to respond quickly to injuries as well as to other emergencies such as lift malfunctions requiring evacuation, fire, gas leaks, and altercations. It appears to us that the use of snowmobiles on the ski slopes at ski resorts is at least as necessary to the sport as the snowmaking equipment in Souza or the directional signs acknowledged as “necessary” in Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317, 79 Cal. Rptr. 2d 775.

At least one unpublished federal case has found a collision with a snowmobile to be an inherent risk of skiing or snowboarding. In Robinette v. Aspen Skiing Co., L.L.C. (D. Colo., Apr. 23, 2009, No. 08-CV-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, affd sub nom. Robinette v. Aspen Skiing Co., L.L.C. (10th Cir. 2010) 363 Fed.Appx. 547, the court found “the specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the ‘risks of skiing/riding.'” (Id. at p. *7.) The court reasoned that since “the legislature has seen fit to specifically enact safety measures to prevent skier-snowmobile collisions, one can [*21] hardly argue that such a collision somehow falls outside of [plaintiff’s] express assumption of ‘all risks of skiing.'”3 (Ibid.)

3 Although California has no similar regulation of snowmobiles at ski slopes, the requirements of the Colorado law are similar to Sierra-at-Tahoe’s policy for snowmobile operation. “All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following: One lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.” (Colo. Rev. Stat. Ann. § 33-44-108, subd. (3).)

Based on the foregoing, we conclude the trial court did not err in ruling that primary assumption of the risk applies in this case and instructing the jury accordingly. To the extent that the evidence showed a snowmobile was operating at the resort and involved in an collision with Forrester that day, its presence and that of related equipment (here apparently a towed toboggan) on the slope was an inherent risk of snowboarding at the resort. However, that risk may well have been unreasonably increased by Sierra if the specific circumstances alleged by Forrester regarding the snowmobile’s use at the time of the alleged collision were believed by the jury. But the jury was presented with a variety of competing scenarios as to what happened at the resort that day. Although we do not know which evidence it credited and which it did not, we know that it did not consider the specific circumstances of the snowmobile’s operation that day to have unreasonably increased the risk already present from the necessary use of snowmobiles at resorts.4

4 The better practice in cases such as this one, where key facts–here even the preliminary fact as to whether there was a collision at all, let alone a collision between a snowboarder and a snowmobile towing a toboggan–are in dispute, is to craft the special verdict form to require the jury to make preliminary factual findings, here such as whether the alleged accident occurred at all and the particulars, if so. (See CACI No. 410, Directions for Use [“There may also be disputed facts that must be resolved by a jury before it can be determined if the doctrine applies”], citing Shin v. Ahn (2007) 42 Cal.4th 482, 486, 64 Cal. Rptr. 3d 803, 165 P.3d 581.)

In arguing that a collision [*22] with a motorized vehicle is not an inherent risk, Forrester relies on out-of-state cases, some unpublished. We find those cases distinguishable or not persuasive. In Verberkmoes v. Lutsen Mountains Corp. (D. Minn. 1994) 844 F.Supp. 1356, a skier collided with an unmarked all terrain vehicle (ATV) parked on or near a groomed trail. The court denied summary judgment for the defendant, finding the hazard of the parked ATV was within the control of the ski resort, not an obvious risk like a lift tower, and not a hidden risk like a snow-covered stump. (Id. at pp. 1358-1359.) Defendant’s “parking of the ATV on the trail during routine maintenance of the ski slope cannot be deemed, as a matter of law, an inherent risk of skiing.” (Id. at p. 1360.) Rather, it was “a danger that reasonable prudence on the part [of defendant] would have foreseen and corrected or at least placed a warning for skiers.” (Id. at p. 1359.) We find Verberkmoes distinguishable, largely because the decision was based on where the ATV was parked; the ski resort could have easily parked it elsewhere or warned against the hazard. Here, the question was whether the resort’s use of snowmobiles on the ski slopes and consequential possibility of contact with snowboarders was an inherent risk of snowboarding.

In Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (D. Colo. 2015) 132 F.Supp.3d 1310, the defendant had argued that [*23] a collision with a snowmobile is an inherent danger and risk of skiing. The court had rejected this argument twice before, each time concluding “whether a collision with a snowmobile is an inherent danger or risk of skiing is not necessarily a question of law because what is an inherent danger or risk of skiing is not limited to the circumstances specifically enumerated in the [Ski Safety Act].” (Id. at p. 1316.) The court declined to address the argument again. (Ibid.)

We find this conclusory analysis unhelpful. For the reasons stated ante, we find a collision with a snowmobile is an inherent risk of snowboarding. As to whether this particular collision was the result of the inherent risk, the jury was properly tasked with determining whether Sierra’s operation of the snowmobile unreasonably increased the risk already inherent in snowboarding. This determination governed whether this particular collision was barred by the assumption of the risk doctrine.

Forrester also relies on an unpublished case from the state of Ohio, Coblentz v. Peters 2005 Ohio 1102, 2005 Ohio App. LEXIS 1073, that found use of a motorized golf cart was not “an actual part of the sport of golf,” so the risk of being struck and injured by a golf cart “is not an ordinary risk of the game.” [*24] (Id. at ¶ 21.) To the limited extent this case is analogous, we decline to apply its narrow analysis to the sport of snowboarding and the associated risk of encountering the resort’s necessary equipment when on the ski slopes. (See Souza, supra, 138 Cal.App.4th at p. 269 [finding snowmaking equipment necessary to the sport of skiing].)

As we have noted, unlike many assumption of the risk cases, including those cited ante, here there is a genuine factual dispute as to what happened to Forrester and caused his injuries. The jury needed to resolve this factual dispute in order to determine whether Sierra unreasonably increased the inherent risk. Accordingly, the issue of whether recovery is barred by assumption of the risk could not be determined as a matter of law, such as by a motion for summary judgment, as is often the case. Here, we need not decide if Forrester’s specific collision was an inherent risk, but only the broader question of whether a collision with a snowmobile operated on the ski slopes of a resort is an inherent risk of snowboarding. If so, recovery is still possible if Sierra unreasonably increased the risk by the specific circumstances surrounding its operation of the snowmobile.

“Although defendants generally [*25] have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, 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. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316, 11 Cal. Rptr. 2d 2, 834 P.2d 696.) Numerous cases have pondered the factual question of whether various ski resorts have increased the inherent risks of skiing or snowboarding. (See Vine, supra, 118 Cal.App.4th at p. 591 [redesign of snowboarding jump]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 366, 114 Cal. Rptr. 2d 265 [construction of the unmarked race start area on the ski run]; Van Dyke v. S.K.I. Ltd., supra, 67 Cal.App.4th 1317 [placement of signs in ski run].)

Forrester contends that even if the ski patrol’s use of a snowmobile is necessary to support the sport of snowboarding, the evidence here showed the snowmobile was not used for that purpose. Indeed, he claims that because the members of the ski patrol on duty that day denied being involved in a collision, the evidence established that the snowmobile was driven by a non-safety employee. He argues the trial court was required [*26] to resolve factual questions as to whether a member of the ski patrol was using the snowmobile before it determined whether assumption of risk applied.

We disagree with Forrester that the trial court was required to resolve these factual questions before submitting the case to the jury. Resolution of the factual issues as to how and by whom the snowmobile was operated “requires application of the governing standard of care (the duty not to increase the risks inherent in the sport) to the facts of this particular case–the traditional role of the trier of fact.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 112, 86 Cal. Rptr. 3d 588.) “Our conclusion it is for the trier of fact to determine whether Vela breached his limited duty not to increase the risks inherent in the sport of volleyball finds solid support in the Supreme Court’s most recent sports injury, primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482 . . . . In Shin the Supreme Court affirmed the trial court’s denial of a motion for summary judgment brought by a golfer who had struck one of his own playing partners with a tee shot. The court held the primary assumption of the risk doctrine regulates the duty a golfer owes both to playing partners and to other golfers on the course, found being hit by a stray [*27] golf shot was an inherent risk of the sport and concluded ‘golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.”‘ [Citation.] However, the Court also held whether the defendant had breached that limited duty of care by engaging in reckless conduct was a question for the trier of fact: ‘In determining whether defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. . . . [¶] Many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. . . . [¶] . . . This record is simply too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly. This will be a question the jury will ultimately resolve based on a more complete examination of the facts.’ [Citation.]” (Luna, at pp. 112-113.) “In light of the Supreme Court’s decision in Shin, we conclude as the Luna court did, that resolving the question of whether [defendant] increased the risk of falling is properly decided by the trier [*28] of fact.” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1062, 183 Cal. Rptr. 3d 566.)

Forrester’s argument about the circumstances of the snowmobile’s use that day is premised upon the jury’s accepting his version of events–that a snowmobile hit him from behind, while driven by a non-safety employee who was not responding to an emergency and who was operating without lights, siren, or flag and contrary to numerous safety policies of Sierra. In short, Forrester assumes that the snowmobile had no legitimate reason to be on Broadway at the time of the incident. But the state of the evidence was such that the jury could decide otherwise. Due to Forrester’s failure to report the accident when it happened, the conflicting testimony of Forrester and Medina, the conflict in expert testimony as to how a collision would have occurred and what caused Forrester’s injuries, and the absence of any independent witness who saw or even heard about the accident, the jury could have rationally concluded the accident did not happen at all. Alternatively, the jury could have concluded that Forrester hit the toboggan out of carelessness or recklessness, Forrester’s injuries were not from the collision, or simply that Forrester failed to prove his version of the accident.

This [*29] case turned in large part on the jury’s assessment of credibility. There was evidence from which the jury could conclude that the incident occurred as described by Forrester and Medina, and that Sierra unreasonably increased its visitors’ inherent risk of a collision with a snowmobile accordingly–because a non-safety employee, not responding to an emergency, drove a snowmobile at significant speed across a beginner run on the busiest day of the year without using lights, siren or a flag, and in contravention of numerous safety policies. These circumstances, or any combination thereof, could certainly constitute an unreasonable increase of the inherent risk by Sierra. Forrester’s theory was tendered to the jury and the jury decided adversely to his argument. Forrester does not challenge the sufficiency of the evidence to support the verdict.

The trial court did not err in determining assumption of the risk applied and submitting the case to the jury on the question of whether Sierra unreasonably increased the risk inherent in the sport of snowboarding.

II

Instruction on Secondary Assumption of the Risk

A. Background

As we set forth ante, the jury was also instructed pursuant to CACI No. 405–the comparative [*30] fault instruction modified by the trial court–as to secondary assumption of the risk. The jury was told that in order for Sierra to succeed on its claim that Forrester contributed to his own harm, Sierra would need to prove both that Forrester assumed the risks that led to his injury and that Forrester’s assumption of those risks was a substantial factor in causing his harm.

The term “assumption of risk” has been “used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). [Citation.] In the latter class of cases, we concluded, the issue could be resolved by applying the doctrine of comparative fault, and the plaintiff’s decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal. Rptr. 3d 103, 75 P.3d 30.)

“Secondary assumption [*31] of risk [arises] where a defendant breaches a duty of care owed to the plaintiff but the plaintiff nevertheless knowingly encounters the risk created by the breach. Secondary assumption of risk is not a bar to recovery, but requires the application of comparative fault principles.” (Connelly, supra, 39 Cal.App.4th at p. 11.)

B. Analysis

Forrester contends the special instruction on secondary assumption of the risk was incorrect because it omitted the requirement that a plaintiff “knowingly” or “voluntarily” accept the increased risk, and because the court failed to set it apart from the instruction related to primary assumption of the risk. Forrester contends the error prejudiced him because it confused the jury on the law.

As Sierra does not defend the instruction, we will assume arguendo that it is incorrect for omitting “knowingly” or “voluntarily.” We reject, however, the argument that it was error to instruct on secondary assumption of the risk immediately after instructing in the language of CACI No. 410 on primary assumption of the risk. Each instruction begins by noting the party whose claim the instruction addresses and what each party must prove to succeed on its claim. The two claims are necessarily related. “Nevertheless, in [*32] certain circumstances primary and secondary assumption of risk are intertwined and instruction is required so the jury can properly determine whether the defendant did, in fact, increase the risks inherent in a hazardous sport so that secondary assumption of risk should be considered.” (Vine, supra, 118 Cal.App.4th at p. 592.)

“Cases like this one, where the plaintiff contends the defendant breached the duty not to increase the risks inherent in a hazardous sporting activity, present both aspects of the assumption of risk doctrine. If the plaintiff fails to show any increase in the inherent risks, or if the trial court determines that the only risks encountered were inherent in the sport, the defendant prevails based on primary assumption of risk. If the jury, properly instructed on the scope of the defendant’s duty, determines the defendant did increase the inherent risk, it then considers the plaintiff’s claim based on secondary assumption of risk as an aspect of the plaintiff’s comparative fault.” (Vine, supra, 118 Cal.App.4th at p. 593.)

“[T]here is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case [*33] ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580, 34 Cal. Rptr. 2d 607, 882 P.2d 298 (Soule).)

“Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule, supra, 8 Cal.4th at p. 580.) Actual prejudice must be assessed in the context of the entire record using a multifactor test. (Ibid.) “Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)

Forrester contends the record demonstrates prejudice because there was strong evidence that Sierra increased the risk by its operation of a snowmobile that day, the jury deliberated for two full days, and the request for a definition of “unreasonable” suggests the jury was confused as to the law.

We disagree that the record shows it was “probable” that the instructional error “prejudicially affected the verdict.” (Soule, supra, 8 Cal.4th at p. 580.) As we have discussed, the evidence raised questions [*34] of witness credibility, and the jury was also called upon to consider conflicting expert testimony. The jury heard five days of evidence and deliberated for two days. In that circumstance, the jury’s two days of deliberation may suggest its “conscientious performance of its civic duty, rather than its difficulty in reaching a decision.” (People v. Walker (1995) 31 Cal.App.4th 432, 439, 37 Cal. Rptr. 2d 167 [six and one-half hours of deliberation after two and one-half hours of presentation of evidence].) The jury’s request for a definition of “unreasonable” and its request for a reread of evidence as to whether there was an emergency that day indicate the jury was most likely focused on Sierra’s conduct, not Forrester’s.

The most useful guide for the jury in sorting through the issues of primary and secondary assumption of the risk was the verdict form that separated the issues. The verdict form asked six questions; only if the jury answered yes to a question was it to proceed to the next question. The questions were: (1) Did Sierra or its employee unreasonably increase the risks inherent in snowboarding? (2) Was this unreasonable increase in the risks a substantial factor in causing harm to Forrester? (3) What are Forrester’s total damages? (4) Did [*35] Forrester assume the risks that led to his injury? (5) Was that assumption of risk a substantial factor in causing his injury? (6) What percentage of responsibility for Forrester’s harm do you assign to Sierra, to Forrester? The jury answered the first question “no” and therefore did not answer any other questions. Accordingly, the jury never reached the issue of secondary assumption of risk and thus never had to apply the challenged jury instruction. Forrester has failed to show prejudicial instructional error. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 206, 48 Cal. Rptr. 2d 448 [error to grant new trial due to instructional error when jury never reached issue covered by instruction]; Vahey v. Sacia (1981) 126 Cal.App.3d 171, 179-180, 178 Cal. Rptr. 559 [purported instructional error on damages was not prejudicial where jury found the defendant was not negligent and never reached the issue of damages].)

III

Refusal to Instruct on Willful Suppression of Evidence

A. Background

At trial, Forrester made much of the fact that the snowmobile’s driver was never identified, which he blamed on Sierra’s failure to retain the daily checklist completed by the driver who had taken out the snowmobile that day. Before trial, Forrester sought to admit Sierra’s special ski permit and winter operation plan from the United States Forest [*36] Service. He argued Sierra was required to maintain the checklist under the document retention policy set forth in that plan. The trial court excluded the document, ruling that whether Sierra had a contractual duty to retain the report was irrelevant, particularly because–given the evidence that the snowmobile could be used by multiple people in the same day–the checklist would not necessarily indicate who was driving a snowmobile at the time of the alleged accident. The court noted that Sierra had provided Forrester with a list of 19 authorized drivers.

Forrester requested that the trial court give CACI No. 204, which provides: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” The request was based on evidence that MacClellan failed to interview all 19 people authorized to use a snowmobile that day and the destruction of the checklist. The court denied Forrester’s request.

Forrester raised the failure to give CACI No. 204 in his motion for a new trial.

B. Analysis

Forrester contends it was error to refuse the requested instruction. For the first time on appeal, he asserts [*37] the snowmobile driver’s leaving the scene of the accident without identifying himself was sufficient evidence to support the instruction. As to the destruction of the checklist, the basis for instruction advanced at trial, Forrester argues there was no evidence the checklist was actually discarded, only that the practice was to discard the checklists daily. He contends he was prejudiced by lack of the instruction because he could not argue the presumption that the destroyed evidence was unfavorable to Sierra to offset the inability to identify the driver.

“A party is entitled to have the jury instructed on his theory of the case, if it is reasonable and finds support in the pleadings and evidence or any inference which may properly be drawn from the evidence.” (Western Decor & Furnishings Industries, Inc. v. Bank of America (1979) 91 Cal.App.3d 293, 309, 154 Cal. Rptr. 287.) An instruction on willful suppression of evidence is appropriate if there is evidence “that a party destroyed evidence with the intention of preventing its use in litigation.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434, 86 Cal. Rptr. 3d 457.)

First, Forrester did not rely at trial on the theory that evidence was destroyed when the snowmobile driver left without identifying himself. “‘A civil litigant must propose complete instructions in accordance with his or her theory of the litigation [*38] and a trial court is not “obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.” [Citations.]’ [Citation.]” (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653, 57 Cal. Rptr. 2d 525.) Thus we need not consider this new theory first advanced on appeal.

Further, the evidence established the checklist had been discarded shortly after the accident, before Forrester made his complaint. While there was no testimony from the person who discarded the checklist for that day and MacClellan testified he did not know if the specific checklist had been discarded, Rice testified the checklists were thrown out on a daily basis and MacClellan testified he knew they were thrown out shortly after they were filled out.

Forrester relies on Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 150 Cal. Rptr. 3d 861, claiming it is “right on point.” In Ventura, a negligent hiring and supervision case, the trial court gave the instruction at issue here based on testimony of the human resources director about redactions in personnel records and the defendant’s failure to interview certain witnesses during the investigation of plaintiff’s complaints. (Id. at p. 273.) The appellate court found no error, noting “Defendants were free to present the jury with evidence that (as counsel represented to the [*39] court), the redactions were only of telephone numbers, and that the failure to interview certain witnesses was proper, and to argue that evidence to the jury.” (Ibid.)

Ventura is distinguishable. There, the actions that supported the instruction occurred during the investigation of plaintiff’s claim, thus permitting an inference there was destruction of evidence to prevent its use in litigation. Here, the evidence was that the snowmobile checklists were routinely discarded each day long before the incident at issue here, unless information on the checklist triggered a need for maintenance. Because Forrester did not report his accident until multiple days had passed, Sierra did not become aware of Forrester’s claim until after the checklist at issue had been discarded. There was no evidence, either direct or from which the inference could be drawn, that the practice of discarding the checklists daily was intended to forestall their use in litigation.

The trial court did not err in declining to give CACI No. 204 on willful suppression of evidence.5

5 Further, Forrester’s claim of prejudice is unconvincing. The instruction permits the jury to draw the inference that the suppressed evidence would have been unfavorable to the party suppressing it. The checklist would have shown, at most, the name of the snowmobile driver. Sierra stipulated that the driver was one of its employees and provided Forrester with a list of authorized drivers.

DISPOSITION

The judgment is affirmed. Sierra shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/s/ Duarte, J.

We concur:

/s/ Butz, Acting P. J.

/s/ Mauro, J.


The New York Court found the injuries received by the Plaintiff, there was an inference that the collision was violent.

Snowboarder standing at the base of the hill talking was injured when a skier struck here when he could not stop.

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

State: New York; Supreme Court of New York, Appellate Division, First Department

Plaintiff: Keri Horowitz

Defendant: Ethan Chen

Plaintiff Claims: Negligence

Defendant Defenses: Inherent Risk

Holding: For the Plaintiff

Year: 2016

Summary

The entire case resolves around two issues. The inherent risks of skiing do not include standing at the bottom of the hill and getting hit when just talking and the plaintiff’s injuries were so bad; she was obviously hit by the defendant at a high rate of speed.

Facts

The facts are best described by the court.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably in-creased risk

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

A very simple case. When a skier is skiing out of control at a high rate of speed in the beginner area and knows he has limited ability to stop, is he liable if he hits someone standing in the beginner area. This court said yes.

Collisions are an inherent risk of skiing in New York. However, as here, the collision could not be expected. The plaintiff was not skiing, was barely “on the slope” and was still hit by a skier.

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.

The court found that those factors possibly gave rise to reckless conduct. Reckless conduct is not an inherent risk of skiing.

The supporting statement the court made about reckless conduct is interesting. The court found the injuries the plaintiff received could also infer the plaintiff was skiing recklessly.

Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.

Rarely are the injuries to the plaintiff ruled as indicative of something other than the injuries the plaintiff received unless an expert opines that the injuries could only have occurred by something specific happening. Meaning an expert witness is required to say that an injury that bad meant the defendant was traveling so fast.

So Now What?

It’s really hard to argue with this decision. When you get to the bottom of the hill, you should be slowing down and under control. Here the defendant was not doing either and hit the plaintiff. No one skiing could expect to be hit when standing at the bottom of the ski area. Consequently, a collision like that is not an inherent risk of skiing.

What do you think? Leave a comment.

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Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Keri Horowitz, Respondent, v Ethan Chen, Appellant.

1649, 152242/14

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

July 5, 2016

July 5, 2016, Entered

PRIOR HISTORY: Horowitz v Chen, 2015 N.Y. Misc. LEXIS 4314, 2015 NY Slip Op 32238(U) (N.Y. Sup. Ct., Nov. 20, 2015)

CORE TERMS: skiing, reckless conduct, snowboarding, reckless, beginner’s, slope, speed

HEADNOTES

Negligence–Assumption of Risk–Skiing and Snowboarding Accident–Possibility of Reckless Conduct by Defendant

COUNSEL: [***1] Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for appellant.

Gersowitz Libo & Korek, P.C., New York (Michael Chessa of counsel), for respondent.

JUDGES: Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ.

OPINION

[*410] [**61] Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 24, 2015, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” (Pantalone v Talcott, 52 AD3d 1148, 1149, 861 NYS2d 166 [3d Dept 2008]).

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the [***2] significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances (see Moore v Hoffman, 114 AD3d 1265, 980 NYS2d 684 [4th Dept 2014]). Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ. [Prior Case History: 2015 NY Slip Op 32238(U).]


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

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

Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation,1 Appellants-Defendants, v. Richard Kaler, Appellee-Plaintiff.

1 On February 23, 2017, Hoosier Mountain Bike Association, Inc. filed a notice of settlement with Richard Kaler and, as part of the settlement, dismissed this appeal. Accordingly, Hoosier Mountain Bike Association, Inc. is no longer a party in this cause. We will still include facts with respect to the Hoosier Mountain Bike Association, Inc. where necessary for our decision.

Court of Appeals Case No. 49A04-1604-CT-865

COURT OF APPEALS OF INDIANA

73 N.E.3d 712; 2017 Ind. App. LEXIS 133

March 23, 2017, Decided

March 23, 2017, Filed

PRIOR HISTORY: [**1] Appeal from the Marion Superior Court. The Honorable Cynthia J. Ayers, Judge. Trial Court Cause No. 49D04-1209-CT-35642

COUNSEL: ATTORNEYS FOR APPELLANTS: Donald E. Morgan, Lynne D. Hammer, Kathryn M. Box, Office of Corporation Counsel, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: John F. Townsend, III, Townsend & Townsend, LLP, Indianapolis, Indiana.

JUDGES: Riley, Judge. Crone, J. and Altice, J. concur.

OPINION BY: Riley

OPINION

[*714] Riley, Judge.

STATEMENT OF THE CASE2

2 We held oral argument in this cause on March 7, 2017, in the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We thank both counsel for their advocacy.

P1 Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation (the City),3 appeal the trial court’s denial of their motion for summary judgment with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence after Kaler sustained injuries in riding the City’s mountain bike trail at Town Run Trail Park.

3 For all practical purposes, Appellant is the City of Indianapolis as the City’s Indy Parks and Recreation department cannot be sued outside the Access to Public Records Act context. See City of Peru v. Lewis, 950 N.E.2d 1, 4 (Ind. Ct. App. 2011) (noting that units of local government, but not their individual departments, are suable under Indiana law), trans. denied.

P2 We reverse.

ISSUES

P3 The City presents us with four issues on appeal, which we consolidate and restate as follows:

(1) Whether a genuine issue of material fact precluded the entry of summary judgment on Kaler’s claim of premises liability; and

(2) Whether a genuine issue of material fact precluded the entry of summary judgment based on the City’s claim that Kaler was contributorily negligent.

FACTS AND PROCEDURAL HISTORY [**2]

P4 The City of Indianapolis owns and operates the Town Run Trail Park through its Indy Parks and Recreation department. The Hoosier Mountain Bike Association, Inc. (HMBA) is responsible for maintaining the trails, which have a difficulty rating from beginner through intermediate. In the spring of 2011, an Eagle Scout, as part of his merit badge project, built a new technical trail feature along Town Run’s mountain bike trail. The feature can best be described as a banked wooden turn, also known as a berm. A rider, approaching the berm, has three options for completing the turn. First, riders can avoid the berm by staying on the dirt path on its left side. Second, riders can elect to enter the berm and ride it on the low grade, or third, riders can negotiate the turn by riding the berm’s more challenging high grade. The entrance onto the wooden turn is fully tapered with the ground, while the exit is only partially tapered. A rider [*715] choosing the low grade would exit the berm with a “little jump” off the end of the feature. (City’s App. Vol. II, pp. 100-01). A rider exiting on the high grade would have to make a two-foot jump back down to the trail.

P5 By July 9, 2011, Kaler had been mountain [**3] biking for approximately four to five years. He described himself as an “experienced” and “better than average” bicyclist. (City’s App. Vol. II, pp. 90, 91). Although he was familiar with the trails at Town Run, he had not been on the mountain bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.” (City’s App. Vol. II, p. 89). He understood that “on a mountain bike trail there’s multiple paths that you can take, one being more dangerous or less dangerous than another.” (City’s App. Vol. II, p. 89). In fact, Kaler had ridden a “fairly sophisticated” trail before which had a “four or five foot drop.” (City’s App. Vol. II, pp. 95, 96). While riding a mountain bike, Kaler was “never [] a casual rider. [He] always enjoyed the obstacles[.]” (City’s App. Vol. II, p. 100). He “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). “[I]t was just a general consequence of the sport.” (City’s App. Vol. II, [**4] p. 95).

P6 On July 9, 2011, Kaler and his girlfriend took their first trip on the trail. The mountain bike trail is shaped as a “figure 8,” with an approximate length of 6 miles. (City’s App. Vol. II, p. 92). When he first approached the berm, Kaler “took the low grade” on the feature. (City’s App. Vol. II, p. 95). As he approached the end of the turn, Kaler could see “there was a drop” so he “pull[ed] up on the fork and [did] a little bunny hop[.]” (City’s App. Vol II, pp. 102, 101). On their second trip around the course, Kaler’s girlfriend decided to take a shorter loop back to the trailhead. She was not as “adventurous” as Kaler and was concerned about getting back to the trailhead before dusk. (City’s App. Vol II, p. 92). Despite the approaching darkness, Kaler “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. II, p. 101). He reached the berm again around 9:30 p.m. Feeling “capable of riding that high line,” Kaler sped up and rode the berm “as high as [he] could possibly ride it with [his] skill set.” (City’s App. Vol. II, p. 101). As he was near the end of the berm’s high grade, he “just saw [him]self lose control [] and just knew he was dropping.” [**5] (City’s App. Vol. II, p. 101). Kaler “didn’t see the drop, [nor] was he aware of the drop” at the end of the high grade turn, instead he “thought it tapered off.” (City’s App. Vol. II, p. 104). Due to the fall, Kaler sustained lacerations to his spleen and kidney. After calling his mother and girlfriend to inform them that he had crashed, he rode his bicycle back to the trail head. That evening, Kaler and his girlfriend went out for dinner.

P7 Around 1:30 a.m. on the following morning, Kaler went to the hospital where he was diagnosed with lacerations to his spleen and kidney. On discharge, Kaler was offered physical therapy but refused it because he “didn’t feel it was necessary.” (City’s App. Vol. II, p. 99). Kaler’s recovery did not last long and he participated in a 100-mile bicycle ride later that summer.

P8 On September 7, 2012, Kaler filed his Complaint against the City, sounding in premises liability. On August 21, 2015, the City filed its motion for summary judgment. (City’s App. Vol II, p. 46). In turn, Kaler submitted his response to the City’s motion, as well as his designation of evidence. On January 6, 2016, the trial court [*716] conducted a hearing on the City’s motion for summary [**6] judgment. On February 2, 2016, the trial court issued its Order, summarily denying the motion. The trial court certified its Order for interlocutory appeal and the City sought this court’s permission to appeal. We granted the request and accepted the interlocutory appeal on May 19, 2016.

P9 Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

P10 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

P11 In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of [**7] the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff’s cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

P12 We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight unto the trial court’s rationale for its review and facilitate appellate review. Id.

II. Premises Liability

P13 In support of its argument that the trial court erred in denying its motion for summary judgment, the City relies on Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), and Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). In Burrell,4 [*717] Indiana’s seminal case for premises liability, [**8] our supreme court imposed a three-part test to determine a landowner’s liability for harm caused to an invitee5 by a condition of its land. Under the Burrell test, a landowner can be held responsible only if the landowner:

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

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

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

Burrell, 569 N.E.2d at 639-40.

4 We acknowledge that on October 26, 2016, our supreme court redrew the premises liability landscape with its decision in Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016), in which the court issued a new test with respect to the situation where an invitee’s injury occurs not due to a dangerous condition of the land but due to claims involving activities on the land. In Rogers, our supreme court distinguished Burrell as follows:

When a physical injury occurs as a condition of the land, the three elements described in the Restatement (Second) of Torts Section 343 accurately describe the landowner-invitee duty. And because Burrell involved an injury due to a condition on the land, it accordingly framed the landowner-invitee duty broadly. [] [W]hile Section 343 limits the scope of the landowner-invitee duty in cases involving injuries due to conditions of the land, injuries could also befall invitees due to activities on a landowner’s premises unrelated to the premises’ condition–and that landowners owe their invites the general duty of reasonable care under those circumstances too.

Rogers, 63 N.E.3d at 322-23. Because Kaler’s injury occurred when riding a mountain bike trail feature, we find the cause more properly analyzed pursuant to Burrell [**9] as it involved a condition of the land.

5 All parties agree that Kaler is an invitee of the City.

P14 On May 18, 2011, our supreme court issued Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), which applied the Burrell test in the realm of premises liability while participating in sports activities. In Pfenning, Cassie Pfenning was injured by a golf ball at a golf outing when she was sixteen years old. Id. at 396. At the time of the incident, Pfenning drove a beverage cart and after making several trips around the golf course “was suddenly struck in the mouth by a golf ball while driving the beverage cart on the cart path approaching the eighteenth hole’s tee pad from its green.” Id. at 397. The ball was a low drive from the sixteenth tee approximately eighty yards away. Id. The golfer’s drive traveled straight for approximately sixty to seventy yards and then severely hooked to the left. Id. The golfer noticed the roof of another cart in the direction of the shot and shouted “fore.” Id. But neither the plaintiff nor her beverage-serving companion heard anyone shout “fore.” Id. After hearing a faint yelp, the golfer ran in the direction of the errant ball and discovered the plaintiff with injuries to her mouth, jaw, and teeth. Id.

P15 Pfenning brought, among others, a premises liability claim against the Elks, the fraternal lodge that owned and [**10] operated the golf course. Id. at 405. Finding that the injury arose from a condition on the premises, the supreme court turned to Burrell in its articulation of the contours of the Elks’ duty. Id. at 406. In applying the Burrell test, the court held that the two first aspects of premises liability were not established by the designated evidence. Id. at 407. First, turning to the second element–the discovery or realization of danger–the court concluded that “for the purpose of our premises liability jurisprudence, the issue here is [] whether the Elks objectively should have expected that [Pfenning] would be oblivious to the danger or fail to protect herself from it.” Id. at 406. In applying this principle the court found “no genuine issue of fact to contravene the objectively reasonable expectation by the Elks that persons present on its golf course would realize the risk of being struck with an errant golf ball and take appropriate precautions.” Id. Addressing Burrell‘s first element–unreasonable [*718] risk of harm–the Pfenning court reasoned that “the risk of a person on a golf course being struck by a golf ball does not qualify as the ‘unreasonable risk of harm’ referred to in the first two components of the Burrell three-factor [**11] test.” Id.

P16 Likewise, here, we conclude that the designated evidence does not satisfy the Burrell requirements with respect to the duty component of premises liability. Initially, we find that it was objectively reasonable for the City under the facts of this case to expect Kaler to appreciate the risks of riding the trail and take suitable protections. The trail’s difficulty was advertised as appropriate for beginner through intermediate. Kaler’s own deposition characterized himself as an “experienced” bicyclist, who had ridden “a fairly sophisticated” trail before and who “always enjoyed the obstacles.” (City’s App. Vol. II, pp. 91, 95, 100). He conceded that to “try to get an idea of the technical requirements of the trail,” he would get off his bike, especially if he noticed something “as a danger.” (City’s App. Vol. II, p. 89). He admitted that a fall “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. [**12] II, p. 101). At no point did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions.

P17 We also conclude that the designated evidence fails to establish that the City had actual or constructive knowledge of a condition on the trail that involved an unreasonable risk of harm to Kaler. Kaler’s own deposition unequivocally affirms that being involved in a bicycle crash “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). In fact, Kaler “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element. See Pfenning, 947 N.E.2d at 407.

P18 Finding that the designated evidence conclusively established that two of the elements of the premises liability [**13] test are not satisfied, we conclude that the trial court erred by denying summary judgment to the City. We reverse the trial court’s decision and now find summary judgment for the City.

II. Contributory Negligence

P19 Next, the City maintains that Kaler is foreclosed from any recovery because of his failure to exercise the care a reasonable, prudent mountain biker should have exercised. It should be noted that Kaler brought his claim against the City, a governmental entity, and therefore, his claim falls under the common law defense of contributory negligence, as the Indiana Comparative Fault Act expressly excludes application to governmental entities. See I.C. § 34-51-2-2. Consequently, even a slight degree of negligence on Kaler’s part, if proximately contributing to his claimed damages, will operate as a total bar to his action for damages against the City, even though, as against nongovernmental defendants, any fault of Kaler would only operate to reduce the damages he might obtain.

[*719] P20 A plaintiff is contributorily negligent when the plaintiff’s conduct “falls below the standard to which he should conform for his own protection and safety.” Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). Lack of reasonable care that an ordinary person would [**14] exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends. Id. Expressed another way, “[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.” Id. at 599. Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment “if there are conflicting factual inferences.” Id. “However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law.” Id.

P21 In Funston, the plaintiff sued the school after incurring injuries caused by a fall when he leaned backwards while sitting on the top row of a set of bleachers. Id. at 599. Funston had been at the gym for about four hours, watching two basketball games while sitting on lower rows on other sets of identical bleachers. Id. For the third game, he moved to the top row of one of the bleachers. Id. It was clearly visible that there was no back railing for spectators sitting on the top row, but Funston leaned back anyway because he “thought there [**15] was something back there[.]” Id. Our supreme court concluded that Funston was contributorily negligent as a matter of law, finding that:

It certainly is understandable that [Funston] would be distracted as he engaged his attention on his son’s basketball game. But being understandable does not equate with being completely free of all negligence.

Id. at 600.

P22 In his deposition, Kaler affirmed that in trying to build a skill, it would not be unusual for him “to get off [his] bike and look at the [] obstacles.” (City’s App. Vol. II, p. 89). He also acknowledged that he knew the berm’s high grade would be challenging because he had just started riding high berms and had never ridden a berm as steep as the one at Town Run. As he approached the end of the turn during his first ride on the berm, Kaler could see “there was a drop[.]” (City’s App. Vol. II, p. 103). After a successful first run on the berm’s low grade, Kaler decided to ride the feature again. Despite the approaching darkness, he planned to ride the berm’s high grade as high as he possibly could because it would be “really cool to ride it and get that speed[.]” (City’s App. Vol. II, p. 101). Notwithstanding the coolness factor, Kaler conceded [**16] that riding obstacles posed a risk of bodily injury as crashes were a general consequence of the sport. Typically, to get an idea of the technical requirements of a trail, the biker “would get off his bike.” (City’s App. Vol. II, p. 89).

P23 Based on the designated evidence, we cannot conclude that Kaler was “completely free of all negligence.” See id. Kaler knew and understood the precautions a reasonably prudent mountain biker should take–inspect the feature prior to riding it–but chose not to follow them. There is no evidence that the jump from the high grade was obscured from view and Kaler conceded that he could have anticipated the drop from the high grade had he taken the precaution a reasonable bicyclist riding an unfamiliar trail would take. Accordingly, we find Kaler contributorily negligent.

[*720] CONCLUSION

P24 Based on the foregoing, we hold that there is no genuine issue of material fact that precludes the entry of summary judgment in the City’s favor on Kaler’s claim of premises liability; and Kaler was contributorily negligent when riding the City’s mountain bike trail at Town Run.

P25 Reversed.

P26 Crone, J. and Altice, J. concur


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

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

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

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

Plaintiff: Wilberto Melendez

Defendant: Happy Trails and Riding Center, Inc.

Plaintiff Claims: Negligence and Recklessness

Defendant Defenses: Release and Pennsylvania Equine Liability Protection Act

Holding: For the plaintiff

Year: 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

In this decision those facts included:

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

Combined with the next sentence:

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

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

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

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

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

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

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

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

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

For other Equine Liability Act articles see:

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

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

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

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

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

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

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

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

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

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

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

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

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

What do you think? Leave a comment.

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

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

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

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

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

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

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

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

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

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

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

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

II. Statement of Undisputed Facts

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

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

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

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

….

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

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

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

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

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

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

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

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

….

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

….

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

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

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

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

III. Standard of Review

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

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

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

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

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

IV. Analysis [*9]

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

A. Exculpatory Agreement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cody Kemble’s negligence consisted of the following:

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

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

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

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

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

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

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

B. Equine Activities Immunity Act

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

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

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

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

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

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

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

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

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

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

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

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

V. Conclusion

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

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

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

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

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

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge