Cyclists injured on a bike path after running into a downed tree, could not recover because the association that assisted in taking care of the bike path owed no duty to the cyclists.

If there is no duty, there is no liability. Always check to make sure there really is a duty owed to someone before you start to claim or defend negligence actions.

Citation: DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466, 2019 Tex. App. LEXIS 466, 2019 WL 311517

State: Texas; Court of Appeals of Texas, Second District, Fort Worth

Plaintiff: Norman Delamar

Defendant: Fort Worth Mountain Biker’s Association

Plaintiff Claims: general negligence and gross negligence

Defendant Defenses: No Duty

Holding: For the Defendants

Year: 2019

Summary

City parks had an agreement with the local cycling group to assist in keeping the bike pats in good shape. The ultimate responsibility for the bike paths was still held by the city. An injured cyclist who ran into a downed tree could not sue the cycling group because they owed no duty to the cyclists because the association did not have the authority from the city and did not accept a duty with the agreement with the city.

Facts

On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.

Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.

The city’s contract with the association outlined things the association was to do to assist the city in keeping the trail available and generally covered trail maintenance. The city did not give up its right to control and manage the park where the trails were located.

The trial court dismissed the plaintiff’s claims, and this appeal ensued.

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

The first issue the court reviewed was this, a negligence claim or a premises liability claim.

Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.”

The differences are subtle, but:

To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach.

The difference is, one is based on the actions of the defendant, and the other is based on a condition of the land.

While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence.

As similar as they may appear to be, you cannot recover on the same set of facts for both a negligence action and a premise’s liability action. Even the court stated understanding the differences could be “tricky.”

The trial court and appellate court found the plaintiff’s claims sounded in premise’s liability.

However, the court went on to discuss the plaintiff’s allegations that his claim was a negligence claim. The issue was whether the association had a legal duty to the plaintiff.

The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.”

Of the three, foreseeability as the dominant consideration, but not the sole consideration the court must review. Foreseeability alone is not sufficient to create a duty. “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.”

Although the association had some contractual responsibility for the trails, there was nothing the association could do about the trees. Only the city had the use of the chainsaws, and only the city could determine if a tree could be removed and then remove it.

And although it was foreseeable, a tree could fall on the trail; the issue required more analysis than that. The bike path was surrounded by thousands of trees. The plaintiff had ridden that path just two days earlier and admitted that the tree could have fallen two hours before he hit it. Although a tree falling was foreseeable, it was outside of the scope of something that you can do anything about, and on top of that the association had no authority to do anything about trees.

Finally, the agreement between the city and the association said nothing about the association agreeing to assume a legal duty to maintain the safety of the trails.

Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.

Because there could be no gross negligence if there was no general negligence, the plaintiffs gross and ordinary negligence claims were dismissed.

So Now What?

Foreseeability is a good thing for non-lawyers running a business or program to understand. Are your actions or inactions going to create a danger to someone.

The case does not state whether the city had any liability to the plaintiff, only the issues discussed in this decision were between the plaintiff and the defendant association.

More importantly, the court looked at trees falling as something that no one could really control. It was not liked anyone, the association or the city could come close to identifying trees that may fall in parks.

What do you think? Leave a comment.

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Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?

NSSA website that describes skiing as safe if done under control contributes to the reasoning that skiers should be able to sue other skiers in a sport.

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

State: Minnesota; Supreme Court of Minnesota

Plaintiff: Julie A. Soderberg

Defendant: Lucas Anderson

Plaintiff Claims: Negligence

Defendant Defenses: Primary Assumption of the Risk

Holding: For the Plaintiff

Year: 2019

Summary

Primary Assumption of the Risk does not apply to collisions between skiers on the slopes in Minnesota. Any collision between two people using a ski area will now result in lawsuits.

The Minnesota Supreme Court believed that skiing, and snowboarding were not inherently dangerous because they could be done with common sense and awareness to reduce the risk, as quoted from the NSAA website.

Facts

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.” Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law.

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

The court first looked at Assumption of the risk and the differences between Primary Assumption of the Risk and Secondary Assumption of the Risk.

Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Therefore, primary assumption of risk precludes liability for negligence, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'”

The court found the ski instructor did not assume the risk of being hit. “Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So, the issue is whether she assumed the risk by implication.”

This first step in the analysis, that the ski instructor did not assume the risk of being hit, which the defense agreed to, sealed the fate of the decision. I think now days; most people consider the risk of a collision to be possible on the slopes.

So, the court then went through the history of primary assumption of the risk in Minnesota and how it was applied in baseball, skating and other sports. It then related why it has not applied primary assumption of the risk to snowmobiling.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity.

The court found that although skiers do collide with each other, it is not so frequent that it is considered an inherent risk of the sport.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .”

The National Ski Area Association, (NSAA) has this statement on their website:

Common Sense, it’s one of the most important things to keep in mind and practice when on the slopes. The National Ski Areas Association (NSAA) believes education, helmet use, respect and common sense are very important when cruising down the mountain. NSAA developed Your Responsibility Code to help skiers and boarders be aware that there are elements of risk in snowsports that common sense and personal awareness can help reduce.

The National Ski Patrol, which probably has a better understanding of the risks of skiing does not have that statement on its website. The good news is both the NSAA, and the NSP now at least have the same code on their websites. That was not true in the past.

The court then stated it just did not want to extend primary assumption of the risk to another activity.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.”

Finally, the court stated that it did not believe this decision would lead to fewer Minnesotans skiing. It will, but not by much. However, what it will do will be to increase litigation amount skiers and boarders. And if you are looking at going to a state to ski, knowing you can be sued if you hit someone else on the slopes might have you ski in another state.

Minnesota now joins Colorado in having billboards you can see leaving the ski areas asking if you have been hurt while skiing.

So Now What?

The court used an interesting analysis coupled with language from the NSAA website to determine that skiing was like snowmobiling and totally controllable, therefore, it was not a sport where you assume the risk of your injuries.

This is a minority opinion. Something this court did not even consider in its opinion. Most states you assume the risk of a collision. This decision was clearly written to increase the litigation in the state.

What do you think? Leave a comment.

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Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Julie A. Soderberg, Respondent, v. Lucas Anderson, Appellant.

No. A17-0827

Supreme Court of Minnesota

January 23, 2019

Court of Appeals Office of Appellate Courts

James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for respondent.

Nathan T. Cariveau, Eden Prairie, Minnesota; and John M. Bjorkman, Larson King, LLP, Saint Paul, Minnesota, for appellant.

Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association.

Peter F. Lindquist, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota; and Thomas P. Aicher, Cleary Shahi & Aicher, P.C., Rutland, Vermont, for amicus curiae National Ski Areas Association.

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

Matthew J. Barber, James Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

SYLLABUS

The doctrine of implied primary assumption of risk does not apply to a claim in negligence for injuries arising out of recreational downhill skiing and snowboarding.

Affirmed.

OPINION

LILLEHAUG, JUSTICE.

In 2016, a ski area outside Duluth, Spirit Mountain, was the scene of an accident that caused severe injuries to a ski instructor. While teaching a young student, the instructor was struck by an adult snowboarder performing an aerial trick. The instructor sued the snowboarder for negligence, but the district court dismissed her claim based on the doctrine of implied primary assumption of risk, which is a complete bar to tort liability. The court of appeals reversed. Soderberg v. Anderson, 906 N.W.2d 889 (Minn.App. 2018). This appeal requires that we decide, for the first time, whether to extend that doctrine to recreational skiing and snowboarding. We decide not to extend it and, therefore, affirm the court of appeals’ decision, though on different grounds.

FACTS

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”[1]Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law. The district court granted summary judgment in Anderson’s favor.

The court of appeals reversed and remanded. Soderberg, 906 N.W.2d at 894. Based on its own precedent of Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790 (Minn.App. 2007), rev. denied (Minn. Aug. 21, 2007), the court of appeals assumed that the doctrine of implied primary assumption of risk generally applies to actions between skiers. Soderberg, 906 N.W.2d at 892. The court then held that material fact issues precluded summary judgment as to whether Soderberg appreciated the risk that she could be crushed from above in a slow skiing area, and whether Anderson’s conduct “enlarged the inherent risks of skiing.” Id. at 893-94. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. Id. at 894. We granted Anderson’s petition for review and directed the parties to specifically address whether Minnesota should continue to recognize the doctrine of implied primary assumption of risk.

ANALYSIS

Anderson argues that he owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. The doctrine of primary assumption of risk is part of our common law. Springrose v. Willmore, 192 N.W.2d 826, 827-28 (Minn. 1971). The application or extension of our common law is a question of law that we review de novo. See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014).

In Springrose, we clarified the distinction between primary and secondary assumption of risk. Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Springrose, 192 N.W.2d at 827. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Daly v. McFarland, 812 N.W.2d 113, 120-21 (Minn. 2012); Springrose, 192 N.W.2d at 827 (explaining that primary assumption of risk “is not . . . an affirmative defense”). Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly, 812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for negligence, Springrose, 192 N.W.2d at 827, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'” Bjerke v. Johnson, 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen, 216 N.W.2d 124, 127 (Minn. 1974)); see Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979) (noting that the application of primary assumption of risk “is dependent upon the plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a duty”).

Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706 (Minn. 1913), a case in which a spectator at a baseball game was injured by a fly ball. Id. at 707. We rejected the proposition that spectators assume the risk of injury if seated behind the protective screen between home plate and the grandstand. Id. at 707-08. We determined that the ball club was “bound to exercise reasonable care” to protect them by furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had provided enough screened-in seating “for the most dangerous part of the grand stand.” Id. We later clarified in Aldes v. Saint Paul Ball Club, Inc., 88 N.W.2d 94 (Minn. 1958), that a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence.” Id. at 97. Thus, the doctrine applies to “hazards inherent in the sport.” Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987). We held that injury from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s sole duty, we said, was to provide the spectator with “a reasonable opportunity to view the participants from a safe area.” Id. But we did not say that recreational golfing negligence claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v. Downey, 113 N.W.2d 9, 12-13 (Minn. 1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. See Grisim, 415 N.W.2d at 875-76 (distinguishing the facts in Grisim from those in Hollinbeck, 113 N.W.2d at 12-13, and therefore declining to apply Hollinbeck).

We have also extended the doctrine to two forms of ice skating: hockey and figure skating. Flying pucks are part of the inherently dangerous game of hockey, we held in Modec v. City of Eveleth, 29 N.W.2d 453, 456-57 (Minn. 1947). We stated that “[a]ny person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike.” Id. at 455.[2]

We applied the doctrine to recreational figure skating in Moe v. Steenberg, 147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out of a collision on the ice. Id. at 588. We held that the plaintiff” ‘assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters. . . .'” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo.Ct.App. 1959)). But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn. 1986), we counted roller skating among other “inherently dangerous sporting events” in which participants assume the risks inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974), we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120-21 (Minn. 2012) (citing Carpenter v. Mattison, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at 121-22.

The closest we have come to discussing the application of implied primary assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc., 232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had been struck by a ski instructor. Id. at 239-40. The cause of action arose before Springrose. Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1. Instead, we affirmed the district court’s decision not to submit to the jury, for lack of evidence, the issue of secondary assumption of risk. Id. at 240-41.

With this case law in mind, we turn now to the question of whether to follow the example of the court of appeals in Peterson, 733 N.W.2d 790, and extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding.[3] To do so would relieve skiers and snowboarders (collectively, “skiers”) of any duty of care owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that the hazard “is one that can be successfully avoided.” Olson, 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 230 N.W. 125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of risk, Daly, reflects that reluctance.[4] See 812 N.W.2d at 119-22. Similarly, the nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk. See Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968); 1800 Ocotillo, LLC v. WLB Grp., Inc., 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99 (Colo. 2016); Blackburn v. Dorta, 348 So.2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132-33 (La. 1988); Wilson v. Gordon, 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 650 P.2d 772, 775-76 (Mont. 1982) (holding that “the doctrine of implied assumption of risk is no longer applicable in Montana”); McGrath v. Am. Cyanamid Co., 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy, 678 P.2d 1210, 1216-18 (Or. 1984); Perez v. McConkey, 872 S.W.2d 897, 905-06 (Tenn. 1994); Nelson v. Great E. Resort Mgmt., Inc., 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 387 S.E.2d 511, 517-19 ( W.Va. 1989) (modifying the defense “to bring it in line with the doctrine of comparative contributory negligence”); Polsky v. Levine, 243 N.W.2d 503, 505-06 (Wis. 1976); O’Donnell v. City of Casper, 696 P.2d 1278, 1281-84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be deterred from vigorously participating and ski operators will be adversely affected. No evidence in the record suggests that the prospect of negligent patrons being held liable chills participation in skiing and snowboarding. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.[5]

Although we decline to further extend the doctrine of implied primary assumption of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety. We ordered briefing on the question of abolition, and we appreciate the well-researched submissions and arguments of the parties and amici. But, as we said in Daly, in which we declined to extend the doctrine to snowmobiling,” ‘[w]e are extremely reluctant to overrule our precedent . . . . ‘” 812 N.W.2d at 121 (quoting State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009)). And we still see a role-limited as it may be-for this common-law doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, we need not reach the question of whether the court of appeals, which assumed the doctrine applied, [6] erroneously concluded that genuine issues of material fact preclude summary judgment. Instead, we affirm the court of appeals’ disposition-reversal and remand-on a different ground.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

ANDERSON, J., took no part in the consideration or decision of this case.

———

Notes:

[1] Riding a snowboard “regular” means that the rider’s left foot is in the front of the snowboard, the rider’s right foot is in the back, and the rider is facing right. Riding “goofy” means that the rider’s right foot is in the front, the rider’s left foot is in the back, and the rider is facing left.

[2] In Diker v. City of St. Louis Park, 130 N.W.2d 113, 118 (Minn. 1964), and citing Modec, we stated the general rule of assumption of risk in hockey, but did not apply the rule to “a boy only 10 years of age.”

[3] In Peterson, the court of appeals affirmed the decision of the district court, which granted summary judgment to a defendant on the plaintiff’s negligence claim stemming from a collision between the two on a ski hill. 733 N.W.2d at 791. Based on other decisions in which “courts have applied primary assumption of the risk to actions between sporting participants,” the court of appeals held that “primary assumption of the risk applies to actions between skiers who knew and appreciated the risk of collision.” Id. at 792-93.

[4] That reluctance is also reflected in another case decided today, Henson v. Uptown Drink, LLC, N.W.2d (Minn. Jan. 23, 2019), in which we decline to extend the doctrine of implied primary assumption of risk to the operation and patronage of bars.

[5] Spirit Mountain (like many ski operators) relies on the doctrine of express primary assumption of risk. It requires patrons to execute forms and wear lift tickets whereby patrons expressly assume all risks of injury and release their legal rights.

[6] Based on our decision here, the court of appeals’ decision in Peterson, 733 N.W.2d 790, holding that implied primary assumption of risk applies to collisions between skiers, is overruled.

 


The one group of people who never sign a release and to whom you have no defenses are spectators. Here a spectator was injured during a bicycle race.

In this case, the plaintiff attempted to bring in USA Cycling, Inc. Spectators are always at risk, and defendants have little they can do to keep from getting sued except fencing in most cases.

Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063; 2018 NY Slip Op 33177(U)

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

Plaintiff: Steven Levine

Defendant: USA Cycling, Inc. & Kissena Cycling Club

Plaintiff Claims:

Defendant Defenses: Sponsor, now in control of event

Holding: For the defendants

Year: 2018

Summary

Plaintiff Cyclists riding inside the race course was injured when a racer struck him. The plaintiff sued the club that put on the event and USA Cycling, Inc. that sanctioned the event. USA Cycling moved for summary judgment arguing it owed no duty to the plaintiff because it had no control over and did not do anything other than sanction the race.

Facts

In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event when he collided with another cyclist who was a participant in the bike race.

As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention….

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

The defendant USA Cycling was brought into the case to possibly add money to the pot that might be available to the defendant. USA Cycling argued that because they did not own, control or have anything to do with the race other than to sponsor the race for a fee, they could not be held liable for anything that happened.

The court distilled the plaintiff’s claims and the defendant’s defenses into a single argument:

At issue in this matter, is whether defendant USA Cycling owed a duty to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.

USA Cycling argued the following:

… USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.

Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.

It USA Cycling did not owe the defendant a duty, then there was no negligence. The court defined negligence under New York law as:

To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In the absence of a duty, there is no breach and without a breach there is no liability

So, the issue is, did USA Cycling’s involvement in the race rise to the level that it owed a duty to the plaintiff.

The plaintiff argued the involvement was much more than just providing insurance for the race.

They [USA Cycling] collect some fees to compensate for sanctioning the event and provide insurance for the event.

The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.

The court found the actions of USA Cycling did not rise to the level to create a duty to the plaintiff.

USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.

The court found USA Cycling had no control over the race. This lack of control could not create a duty to the plaintiff.

This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.

So Now What?

Spectators are necessary to any event. They “pay” for the event by either just being there so advertisers can sell to them or paying to enter the facility. Although the facts in this case are slightly different, other cyclists riding, the issues are still the same. Spectators are not a group of people that the event sponsors, owners; officials can create protection from litigation.

If a spectator gets hurt, there is little available to stop their claims.

Here the news was that USA Cycling had so little involvement in the race, they were able to successfully argue they owed no duty to the plaintiff. This argument is similar in all states; however, the definition of duty in each state and the type of involvement could make this difficult in some jurisdictions.

What do you think? Leave a comment.

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Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs,


Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)

Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)

Supreme Court of New York, Kings County

December 4, 2018, Decided

515257/15

Reporter

2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U) **

[**1] STEVEN LEVINE, Plaintiff(s), -against-USA CYCLING, INC. & KISSENA CYCLING CLUB, INC., Defendant(s). Index No: 515257/15

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

Core Terms

Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs

Judges: [*1] Present: Hon. Judge Bernard J. Graham, Supreme Court Justice.

Opinion by: Bernard J. Graham

Opinion

DECISION / ORDER

Defendant, USA Cycling, Inc. (“USA Cycling”) has moved, pursuant to CPLR §3212, for an Order awarding summary judgment to the defendant and a dismissal of the plaintiff’s, Steven Levine, (“Mr. Levine”) complaint upon the grounds that the defendant was not negligent, and thus not liable for plaintiff’s injuries as they owed no duty to the plaintiff. The plaintiff opposes the relief sought by the defendant, USA Cycling, and maintains that the latter was negligent in that they had a greater involvement than just sanctioning the race in which the plaintiff was injured, and they failed to properly supervise, maintain and control the race in which the plaintiff who was not a participant in the race was seriously injured.

[**2] Background:

In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event [*2] when he collided with another cyclist who was a participant in the bike race.

As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention, an action was commenced on behalf of the plaintiff by the filing of a summons and complaint on or about December 21, 2015. Issue was joined by the service of a verified answer by USA Cycling on or about March 15, 2016. The plaintiff served a response to defendant’s Demand for a Verified Bill of Particulars dated March 24, 2016. Depositions of the plaintiff, as well as Todd Sowl, the chief financial officer of USA Cycling, were conducted on September 27, 2016.

In October 2016, the plaintiff moved to amend their complaint to add Kissena Cycling Club Inc., (“Kissena Cycling Club”) as an additional defendant. Kissena Cycling Club did not appear nor answer the complaint, but a default judgment had not been sought against said party.

In April 2017, plaintiff commenced a separate action against Kissena Cycling Club under index # 507066/2017. Plaintiff then filed a Note of Issue in the underlying action on July 25, 2017.

Defendant’s contention (USA Cycling, Inc.):

The defendant, in [*3] moving for summary judgment and a dismissal of the plaintiff’s complaint, maintains that the relief sought herein should be granted because in the absence of a [**3] duty to the plaintiff there cannot be a breach and without a breach they cannot be liable for negligence.

The defendant maintains that USA Cycling merely sanctioned the event that was run by Kissena Cycling Club. They issued a permit to allow Kissena Cycling Club to use the name of USA Cycling during the event.

Defendant asserts that there is no evidence to support an argument as to the existence of a principal-agent relationship between USA Cycling and Kissena Cycling Club nor was there any evidence of control by USA Cycling or consent by USA Cycling to act on its behalf. In addition, there is no written agreement between the two entities.

In support of defendant’s motion, is the affidavit of Todd Sowl in which he stated that USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent [*4] company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.

Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.

[**4] Plaintiff’s contention:

In opposing the motion of USA Cycling for summary judgment, plaintiff maintains that USA Cycling was sufficiently involved with the cycling event that caused plaintiff’s injuries that would result in their owing a duty to the plaintiff. Plaintiff contends that USA Cycling was negligent in their failure to properly operate, supervise, maintain, manage and control the bicycle race.

The plaintiff asserts that USA Cycling by its chief operating officer, Mr. Sowl, [*5] in both his deposition and his supporting affidavit stated that his organization sanctioned the cycling event in Prospect Park. They collect some fees to compensate for sanctioning the event and provide insurance for the event.

The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.

The plaintiff asserts that negligence cases by their very nature do not lend themselves to summary dismissal since the issue of negligence is a question for jury determination. The plaintiff maintains that the proof submitted by USA Cycling does not satisfy their initial burden of establishing the absence of a material issue of fact.

Discussion:

This Court has considered the submissions of counsel’ for the respective parties, the arguments presented herein, as well as the applicable law, in making a determination with respect to the motion by defendant, USA Cycling, for summary judgment and a dismissal of plaintiff’s action.

[**5] At issue in this matter, is whether defendant USA Cycling owed a duty [*6] to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.

The moving party in a motion for summary judgment bears the initial burden of demonstrating a prima facie entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate the absence of any material issue of fact (Drago v. King, 283 AD2d 603, 725 NYS2d 859 [2nd Dept. 2001]).

In support of USA Cycling’s motion for summary judgment, the defendant offers the deposition testimony of Todd Sowl, as well as Charles Issendorf, the event director of Kissena Sports Project Inc. d/b/a Kissena Cycling Club, who was deposed on June 14, 2018 in the related action, as well as case law which examined whether a party under similar circumstances would have been found to be negligent and thus liable to an injured party.

To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644 [1981]. In the absence of a duty, there is no breach and without a breach there is no liability (see Light v. Antedeminico, 259 A.D.2d 737, 687 N.Y.S.2d 422; Petito v. Verrazano Contr. Co., 283 A.D.2d 472, 724 N.Y.S.2d 463 [2nd Dept. 2001]).

In determining whether USA Cycling had a duty to the plaintiff, this Court examined the role of USA Cycling and specifically [*7] its involvement in this race, as well as that of the Kissena Cycling Club. The Court further considered the deposition testimony of Todd Sowl as well as Charles Issendorf.

USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While [**6] they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.

This lack of control over the event by USA Cycling and by contrast the control exhibited by the Kissena Cycling Club is further demonstrated through the deposition testimony of Charles Issendorf. [*8] Mr. Issendorf as the race director for Kissena Cycling Club has been organizing races for fourteen years. Mr. Issendorf characterized his club as more of a social club where its members race together. There are generally thirty races conducted between the months of March and September with the venues being in both Prospect Park and Floyd Bennett Field which is also situated in Brooklyn, New York. Mr. Issendorf testified that he obtains the permit for the subject race directly from the representatives of Prospect Park. Mr. Issendorf is instructed to have certain safety measures implemented at all races. He sets up the course by putting out the safety measures which includes the safety signs that are needed for the race. He also organizes the race marshals, and the pace and follow motorcycles to ensure that there is a motorcycle in both the front and back of each group.1 Mr. Issendorf further testified that Prospect Park has rules in terms of the placement of safety cones and signs that are needed, as well as the race marshals. Kissena Cycling club provides what could be characterized as “lawn signs” and Mr. Issendorf personally places these signs in the grass along the bike route. There [*9] are also traffic safety cones throughout the course that contain a sign which bear the words “caution, bicycle [**7] race”, that are placed there by Mr. Issendorf. The signs are generally situated one hundred meters apart and they are placed at crosswalks, entrances to the park, as well as at high traffic areas where there is a concentration of people. As to the course, the two lanes to the right of a double white line is where the participants are allowed to race. To the left of the double white line is the location of the pedestrian or the recreation lane. There are written instructions on the website of the club which states that at all times the participants are not allowed to enter the pedestrian or recreation lane. The race organizers also make use of a portable PA system at the race in which the chief referee warns the riders to stay to the right of the white right lane, and if they were to cross into the recreation lane it would result in their disqualification.

This Court finds that while USA Cycling sanctioned the race of June 14, 2014, the plaintiff has not sufficiently refuted the assertion and proof offered by USA Cycling that the latter did not organize, direct, control, supervise [*10] or select the venue nor did they have any employees or agents at the cycling event, and thus, had no duty to the plaintiff. Courts have addressed situations that are akin to the case at bar. The Court in Chittick v. USA Cycling Inc., 54 AD3d 625, 863 NYS2d 679 [1st Dept. 2008]), in finding that an award of summary judgment and a dismissal of the action against USA Cycling was warranted, in which spectators were injured during a bicycle race when struck by the rear pace vehicle, determined that USA Cycling had no duty to prevent any negligence involved therein. The Court in Chittick determined that USA Cycling merely sanctioned the race by lending its name to the race. The fact that USA Cycling provided the rule book to the organizer of the race did not impose a duty upon them to enforce any of the rules thereon. There was also no inference drawn as to the existence of a principal-agency relationship between USA Cycling and the race organizer.

[**8] The Court in Megna v. Newsday, Inc., 245 AD2d 494, 666 NYS2d 718 [2nd Dept. 1997], in granting summary judgment to the defendant, determined that the defendant merely sponsored the race in which the injured plaintiff had participated. It was determined that the defendant owed no duty of care to the plaintiff as the defendant was not in any way involved in the design, layout, maintenance [*11] or control of the race course, and was not in a position to assume such control (see also Mongello v. Davos Ski Resort, 224 A.D.2d 502, 638 N.Y.S.2d 166 [2nd Dept. 1966]; Johnson v. Cherry Grove Island Management Inc., 175 AD2d 827, 573 NYS2d 187 [2nd Dept. 1991]).

This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.

Conclusion:

The motion by defendant, USA Cycling, Inc. for summary judgment and a dismissal of plaintiff’s complaint is granted.

[**9] This shall constitute the decision and order of this Court.

Dated: December 4, 2018 [*12]

Brooklyn, New York

ENTER

/s/ Bernard J. Graham

Hon. Bernard J. Graham, Justice

Supreme Court, Kings County


Lawsuit because a ski helmet failed to protect a plaintiff from concussion.

Is this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?

Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233

State: Wisconsin: United States District Court for the Western District of Wisconsin

Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services

Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited

Plaintiff Claims: negligence, strict product liability, and breach of warranty

Defendant Defenses:

Holding: Mostly for the Plaintiff

Year: 2018

Summary

This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.

Facts

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

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

This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.

The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.

The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.

The court started by looking at the Wisconsin Product Liability statute.

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.

The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.

Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”

Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.

One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.

Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.

The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.

As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.

Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.

The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.

This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.

The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.

In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:

…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”

The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.

However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.

Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.

Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.

Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.

Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.

You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”

Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.

Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.

The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.

So Now What?

The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.

As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.

Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.

Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.

More articles about helmets

A helmet manufacture understands the issues (Uvex, Mouthguards)    http://rec-law.us/xpxX6n

A new idea that makes sense in helmets: the Bern Hard Hat    http://rec-law.us/yPerOd

Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike?    http://rec-law.us/1fqwlpV

Do you really want to sell helmets this way? Does this article promote the industry?    http://rec-law.us/NfoMTs

Does being safe make us stupid? Studies say yes.    http://rec-law.us/Ao5BBD

Great article on why helmet laws are stupid    http://rec-law.us/zeOaNH

Great editorial questioning why we need laws to “protect” us from ourselves.    http://rec-law.us/Ayswbo

Helmets do not increase risk of a neck injury when skiing    http://rec-law.us/wPOUiM

Helmets: why cycling, skiing, skateboarding helmets don’t work    http://rec-law.us/RVsgkV

Law requires helmets, injuries down fatalities up?    http://rec-law.us/YwLcea

Mixed emotions, but a lot of I told you so.    http://rec-law.us/ysnWY2

More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour    http://rec-law.us/z4CLkE

The helmet issue is so contentious people will say the stupidest things    http://rec-law.us/zhare9

What do you think? Leave a comment.

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helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed


Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

 Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

United States District Court for the Western District of Wisconsin

December 28, 2018, Decided; December 28, 2018, Filed

17-CV-534-JDP

Reporter

2018 U.S. Dist. LEIS 217233 *

STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.

Core Terms

helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed

Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.

For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.

For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.

For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.

For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.

Judges: JAMES D. PETERSON, [*2] District Judge.

Opinion by: JAMES D. PETERSON

Opinion

OPINION & ORDER

Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.

K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.

At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.

UNDISPUTED FACTS

The following facts are undisputed except where noted.

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.

Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.

ANALYSIS

K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.

A. Plaintiffs’ motion to exclude expert evidence

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).

1. P. David Halstead

P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.

First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at the time of the accident. Halstead expresses that opinion in various forms:

• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.

• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.

• “The skull fracture is a result of functionally direct contact with the impact surface to the mastoid area.” Id.

• “Given the test results had the helmet been in position the skull fracture almost certainly would not have occurred.” Id.

The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.

Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.

Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.

Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.

Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of impact on Scott’s head at the time of the accident:

Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.

Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.

Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to protect against high-speed impact:

“As the biomechanical testing shows the helmet, at its thinnest, well below the test line is able to take an impact at nearly 14 miles per hour with a hemi anvil and still remain under 300g.”

Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.

The bottom line is that the court will consider Halstead’s drop testing analysis, but it will not consider his testimony that the helmet was out of place at the time of the accident.

2. Irving Scher, Ph.D., P.E

Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.

a. Helmet fit

Scher opines that the helmet was poorly fit and that it was loose enough to move out of place:

• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.

• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.

• “The subject helmet was not snugly fitted to Mr. [*13] Rogers’ head.” Id. ¶ 14.

These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.

Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.

Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.

b. Kinematics analysis

Scher also offered opinions about how Scott fell and how he was injured, which Scher refers to as a “kinematics” analysis. He expresses those opinions as follows:

• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.

• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.

• “No snowsport helmet would be able to prevent the injuries sustained by Mr. Rogers in the subject accident.” Id.

• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.

• “Mr. Rogers failed to properly tighten the subject helmet’s chin strap, which allowed the subject helmet to move out of position as he fell.” Id. ¶ 15.

• “Immediately before Mr. Rogers’ head contacted the ground, the subject helmet moved out of position, causing the point of impact to be below the helmet’s test line.” Id. ¶ 18.

• “In my professional opinion, any snow sport helmet with a similar fit and loose chin strap on Mr. Rogers’ head would have similarly moved relative to his head in the subject fall.” Id. ¶ 20.

The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.

Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.

Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.

Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.

B. K2’s motion for summary judgment

Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.

1. Summary judgment standard

Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

2. Strict Product liability claim

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.

There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.

a. Defective design

Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.

i. Unreasonably dangerous defect

Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6

Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).

K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.

K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.

K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.

ii. Causation

K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.

Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.

K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:

Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.

Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.

b. Defective Instructions

Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.

Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.

K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.

The court denies K2’s motion for summary judgment on the defective instructions claim.

3. Negligence claim

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).

K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.

4. Breach of warranty claim

K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).

Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.

5. Loss of consortium claim

K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.

K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.

C. Additional motions and requests for relief

As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)

But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.

A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.

ORDER

IT IS ORDERED that:

1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is GRANTED in part and DENIED in part, as provided in this opinion.

2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of warranty.

3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.

4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington Insurance Company and AIG Europe Limited are DISMISSED without prejudice.

Entered December 28, 2018.

BY THE COURT:

/s/ JAMES D. PETERSON

District Judge