Pennsylvania No Duty Rule stops lawsuit by underage rider.

A minor with 12 years of riding and competing on dirt bikes could not sue the commercial operation after crashing on the course.

Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

State: Pennsylvania; United States District Court for the Western District of Pennsylvania

Plaintiff: Kameron Hawkins and Amber Lynn Durbin

Defendant: Switchback MX, LLC d/b/a Switchback Raceway

Plaintiff Claims: negligence and negligence per se

Defendant Defenses: Pennsylvania No Duty Rule (Assumption of the Risk)

Holding: For the Defendant

Year: 2019

Summary

The Pennsylvania Comparative Negligence Act specifically identifies downhill skiing and off-road riding as exempt from the comparative negligence act. In both those sports, the participant assumes the risk of their injuries due from the inherent risks of the sports.

Facts

Hawkins [plaintiff] began riding a dirt bike at the age of five or six.. He learned the ins and outs of dirt bike [motorized] riding from his father, who raced dirt bikes and often brought Hawkins to spectate at off-road races Hawkins began participating in races himself at “a young age” and even secured sponsorships. He testified that he was aware of the dangers of riding dirt bikes from early on in his experience, that his father instructed him to avoid jumps that “you don’t think you can handle,” and that he wore protective gear to guard against the risk of injury. He acknowledges that dirt bike riding is “a dangerous sport,” that “you could get hurt” on a dirt bike, and that a fall could cause “injury . . . or even death.” Despite his protective measures, Hawkins has suffered injuries in the past riding a dirt bike. Hawkins had been to Switchback on three prior occasions: once as a spectator, once as pit crew member for his friend Jonathan Franjko, and once as a rider.

The events preceding Hawkins’ accident on January 9, 2016 are disputed by the parties and not fully explored in the Rule 56 record. According to Hawkins, he arrived at Switchback with several friends and met with Brader, who asked them whether they had been to Switchback before. Hawkins relayed that, after the group responded affirmatively, Brader told them to sign in, accepted their payment, and provided them with wristbands to attach to their helmets to indicate they had been authorized to ride. He denied ever being asked to present identification and did not recall being asked his age.

Switchback’s account diverges considerably. According to Brader, Hawkins entered the indoor facility on January 9, 2016 with Franjko, who had a Switchback membership card. Brader did not recognize Hawkins and thought he appeared to be under the age of 18. Brader reported that he told Hawkins he needed to “take home a waiver and fill it out” and that he had to “bring [the waiver] out next time and join us another day.” Brader does not recall Hawkins signing in on Switchback’s sign-in sheet for January 9, 2016, but testified that he told Hawkins he “could not ride” without waiver and consent forms on file. Brader also testified that he does not know how Hawkins ultimately came to access the track on January 9, 2016. It is undisputed that Durbin did not execute a parental consent form allowing Hawkins to participate in dirt bike riding at Switchback.

On January 9, 2016, Hawkins somehow gained access Switchback’s indoor dirt bike racing track. Hawkins “attempted a jump, without enough speed,” on one of the track’s “table top jumps,” which caused the frame of his dirt bike to hit the ground and “flip [the] bike and Hawkins over.” According to Brader, it was only after this wreck that he became aware that Hawkins had accessed the track. Brader testified that Hawkins “didn’t look right” and that he offered to call an ambulance. Franjko confirmed that Brader asked “a couple times” whether Hawkins wanted medical attention. Hawkins left Switchback’s facility with his friends without receiving medical attention. Hawkins was subsequently treated for injuries including a lacerated kidney and pancreas, trauma to his spleen, a broken hip, a concussion, and post-concussion syndrome. The accident occurred four months before Hawkins’ 18th birthday.

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

The court first reviewed the requirements to prove a negligence claim in Pennsylvania.

Under Pennsylvania law, a plaintiff must prove the “four basic elements of duty, breach, causation, and damages. That is, plaintiffs must prove: (1) the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by the defendant; (3) a causal connection between defendant’s breach and plaintiffs’ injury; and (4) actual loss or damages.

The court then reviewed the claims of the plaintiff as whether the defendant owed a duty to the minor plaintiff because the plaintiff assumed the risk of his injuries.

The defendant’s position was it had no duty to protect the plaintiff because of the inherent risk set out in the “no duty” rule in the Pennsylvania Comparative Negligence Act.

The plaintiff’s response to that argument was the negligence of the defendant was in allowing the plaintiff to access the track.

The court looked at the conflicting arguments by next reviewing assumption of the risk as applied in Pennsylvania. The Pennsylvania Comparative Negligence Act eliminated the defense of assumption of the risk in all areas except two when it enacted the statute. The two exemptions were downhill skiing and off-road vehicle riding. Meaning in those two situations, the no-duty rule retained the defense of assumption of the risk. The defendant has no duty to protect the plaintiff from the inherent risks of the sport of downhill skiing or off-road riding.

The court then reviewed whether assumption of the risk applied to minors. That is “the court must ask what the “particular minor plaintiff knows, sees, hears, comprehends, and appreciates” with respect to the risk involved.”

Under Pennsylvania law, to prove assumption:

…the court must find that the plaintiff (1) “consciously appreciated the risk” attending the activity, (2) assumed the risk of injury by nonetheless engaging in the activity, and (3) sustained an injury that was “the same risk of injury that was appreciated and assumed.”

A factor in determining whether or not a minor assumed the risk is the minor’s age and experience. In this case that worked for the defendant because the minor was only four months from turning eighteen at the time of the accident and had been riding for twelve years.

The court then defined inherent risk as a risk “which “cannot be removed without altering the fundamental nature” of the activity.”

The court broke down the inherent risks of off-road riding as identified in the statute, to see if the plaintiff’s injury landing on a table-top jump was inherent to the sport.

Common sense dictates that the risk of a fall or collision that does not involve another rider or object is equally inherent in the activity. Indeed, Hawkins’ own experience bears this out—he testified that his accident on January 9, 2016, was not his first; that he knew from personal experience that attempting jumps carried a certain risk; and that he wore protective gear in an attempt to mitigate that risk. We find that the risk of suffering serious injury when attempting a dirt bike jump is one which “cannot be removed without altering the fundamental nature” of dirt bike riding and is thus inherent in the activity.

We further conclude that reasonable persons could not debate whether Hawkins appreciated and knowingly assumed that risk. Hawkins was nearly 18 years old at the time of the accident and had been riding dirt bikes for more than 12 years. He was a vastly experienced rider. He was well aware that dirt bike riding carried the risk of serious injury and even death. Indeed, Hawkins acknowledged that a dirt bike presents a certain danger “even when the bike’s on the ground.” Given this unequivocal record testimony, we have little difficulty finding that this particular rider—plaintiff Kameron Hawkins—knew, appreciated, and assumed the risks attending off-road dirt bike riding.

For these reasons, the court found the minor, because of his age and experience assumed the risk of his injuries, and the defendant was not liable for those injuries because of the Pennsylvania Comparative Negligence Act.

So Now What?

Assumption of the risk in most states is the only defense you have to injuries a minor receives. Unless your state has a specific statute that identifies your activity as one with inherent risk a person assumes, you need to prove the minor in your case assumed those risks.

To do that you must maximize all the avenues to educate and document that education of a minor, in fact, all participants in your activity or business.

Post videos of your activity showing crashes, flips and falls on your website and social media. Point out possible risks on your site and social media. Then confirm in some way that the minor observed that information.

You can go so far as to ask the minor and/or the minor’s parents of their experience in the sport. Have they participated in the sport before, seen it on TV, participated for how many years, etc.

A release is your best defense to a lawsuit, but for minors, in those states where releases are not valid and or minors, assumption of the risk is your best and sometimes only defense.

For more information see:

States that allow a parent to sign away a minor’s right to sue

States that do not Support the Use of a Release

What do you think? Leave a comment.

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Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

United States District Court for the Western District of Pennsylvania

September 12, 2018, Decided; September 12, 2018, Filed

CIVIL ACTION NO. 2:16-CV-1719

Reporter

KAMERON HAWKINS and AMBER LYNN DURBIN, Plaintiffs v. SWITCHBACK MX, LLC d/b/a SWITCHBACK RACEWAY, Defendant

Counsel:  [**1] For KAMERON HAWKINS, &, AMBER LYNN DURBIN, Plaintiffs: George R. Farneth , II, LEAD ATTORNEY, The Farneth Law Group, LLC, Wellsburg, WV.

For SWITCHBACK MX, LLC, doing business as, SWITCHBACK RACEWAY, Defendant: Michael John Pawk, Lutz & Pawk, Butler, PA.

Judges: Christopher C. Conner, Chief United States District Judge.

Opinion by: Christopher C. Conner

Opinion

[*545]  MEMORANDUM

Plaintiff Kameron Hawkins (“Hawkins”) suffered injuries after he unsuccessfully attempted a jump while riding a dirt bike on an indoor course at defendant Switchback Raceway (“Switchback”). Hawkins and his mother, plaintiff Amber Lynn Durbin (“Durbin”), commenced this diversity action advancing three negligence claims against Switchback under Pennsylvania law. Before the court are the parties’ cross-motions for summary judgment.

I. Factual Background and Procedural History1

This personal injury lawsuit arises from physical injuries suffered by Hawkins following a dirt bike accident at Switchback’s off-road riding and racing facility in Butler, Pennsylvania. Switchback promotes and stages dirt bike races for participants of all skill levels. (Doc. 28 ¶ 1; Doc. 32 ¶ 2). Switchback’s website articulates [**2]  its waiver and consent policy as follows:

Dirtbike/ATV riding is dangerous. Accidents, injuries, and even death can occur. Ride at your own risk! All riders must sign a waiver before they will [be] permitted to ride. Minors will be required to have parental consent. During practice, there are limited to no flaggers. Please, ride safely.

There is no trespassing on Switchback property. Anyone caught trespassing will be prosecuted to the full extent of the law.

All minors that come without their legal parents they must have a NOTARIZED waiver to be able to ride. NO EXCEPTIONS.

(Doc. 30-9 at 1). Switchback’s track manager, Mark Brader (“Brader”), testified that,  [*546]  pursuant to this policy, a minor is not be permitted to ride without a signed parental consent form and waiver. (Brader Dep. 29:5-18, 42:13-21).2 He also testified that it was his responsibility to ensure that minors did not misrepresent their age or otherwise engage in efforts to improperly gain access to the track. (Id. at 56:4-8; see also Doc. 28 ¶ 10).

Hawkins began riding a dirt bike at the age of five or six. (Doc. 32 ¶ 4). He learned the ins and outs of dirt bike riding [**3]  from his father, who raced dirt bikes and often brought Hawkins to spectate at off-road races. (See id. ¶¶ 7-9; Hawkins Dep. 20:5-22:4 (“Hawkins Dep.”)). Hawkins began participating in races himself at “a young age” and even secured sponsorships. (Doc. 32 ¶ 6). He testified that he was aware of the dangers of riding dirt bikes from early on in his experience, that his father instructed him to avoid jumps that “you don’t think you can handle,” and that he wore protective gear to guard against the risk of injury. (Id. ¶¶ 7-8; Hawkins Dep. 21:20-22:21, 38:22-39:25, 133:3-12, 147:18-148:6). He acknowledges that dirt bike riding is “a dangerous sport,” that “you could get hurt” on a dirt bike, and that a fall could cause “injury . . . or even death.” (Hawkins Dep. 25:17-26:4, 38:13-21, 39:14-25, 147:18-148:6). Despite his protective measures, Hawkins has suffered injuries in the past riding a dirt bike. (Doc. 32 ¶ 14; see also Hawkins Dep. 38:22-39:25, 133:3-12). Hawkins had been to Switchback on three prior occasions: once as a spectator, once as pit crew member for his friend Jonathan Franjko (“Franjko”), and once as a rider. (Doc. 32 ¶ 28).

The events preceding Hawkins’ accident on January [**4]  9, 2016 are disputed by the parties and not fully explored in the Rule 56 record. According to Hawkins, he arrived at Switchback with several friends and met with Brader, who asked them whether they had been to Switchback before. (Hawkins Dep. 49:5-12). Hawkins relayed that, after the group responded affirmatively, Brader told them to sign in, accepted their payment, and provided them with wristbands to attach to their helmets to indicate they had been authorized to ride. (See id.) He denied ever being asked to present identification and did not recall being asked his age. (Id. at 133:13-23).

Switchback’s account diverges considerably. According to Brader, Hawkins entered the indoor facility on January 9, 2016 with Franjko, who had a Switchback membership card. (See Brader Dep. 56:9-18). Brader did not recognize Hawkins and thought he appeared to be under the age of 18. (See id. at 56:19-57:2). Brader reported that he told Hawkins he needed to “take home a waiver and fill it out” and that he had to “bring [the waiver] out next time and join us another day.” (Id. at 56:23-57:6). Brader does not recall Hawkins signing in on Switchback’s sign-in sheet for January 9, 2016, but testified that he [**5]  told Hawkins he “could not ride” without waiver and consent forms on file. (Id. at 76:12-77:1). Brader also testified that he does not know how Hawkins ultimately came to access the track on January 9, 2016. (Id. at 91:12-16). It is undisputed that Durbin did not execute a parental consent form allowing Hawkins to participate in dirt bike riding at Switchback. (Doc. 28 ¶ 12).

On January 9, 2016, Hawkins somehow gained access Switchback’s indoor dirt bike racing track. (See Doc. 28 ¶ 13; Doc.  [*547]  32 ¶¶ 1, 13, 31). Hawkins “attempted a jump, without enough speed,” on one of the track’s “table top jumps,” which caused the frame of his dirt bike to hit the ground and “flip [the] bike and Hawkins over.” (Doc. 32 11 13, 31). According to Brader, it was only after this wreck that he became aware that Hawkins had accessed the track. (See Brader Dep. 57:4-11). Brader testified that Hawkins “didn’t look right” and that he offered to call an ambulance. (Id. at 82:10-83:12). Franjko confirmed that Brader asked “a couple times” whether Hawkins wanted medical attention. (See Franjko Dep. 58:12-59:1). Hawkins left Switchback’s facility with his friends without receiving medical attention. (See Doc. 28 [**6]  ¶ 17; Doc. 39 ¶ 17). Hawkins was subsequently treated for injuries including a lacerated kidney and pancreas, trauma to his spleen, a broken hip, a concussion, and post-concussion syndrome. (Doc. 28 ¶ 18). The accident occurred four months before Hawkins’ 18th birthday. (See Doc. 32 ¶ 3).

Hawkins and Durbin commenced this lawsuit on November 15, 2016, asserting one claim of negligence each and one claim of negligence per se together. Plaintiffs contend that Switchback violated its internal policies and its legal duty of care by failing to ensure that Hawkins, a minor, did not access its facility without parental consent. The parties have filed cross-motions for summary judgment on each of the plaintiffs’ claims. The motions are fully briefed and ripe for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that do not present a “genuine dispute as to any material fact” and for which a jury trial would be an empty and unnecessary formality. Fed. R. Civ. P. 56(a). The burden of proof tasks the non-moving party to come forth with “affirmative evidence, beyond the allegations of the pleadings,” in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court is to view [**7]  the evidence “in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Only if this threshold is met may the cause of action proceed. See Pappas, 331 F. Supp. 2d at 315.

Courts are permitted to resolve cross-motions for summary judgment concurrently. See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008); see also Johnson v. Fed. Express Corp., 996 F. Supp. 2d 302, 312 (M.D. Pa. 2014); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720 (3d ed. 2015). When doing so, the court is bound to view the evidence in the light most favorable to the non-moving party with respect to each motion. Fed. R. Civ. P. 56; Lawrence, 527 F.3d at 310 (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).

III. Discussion

Pennsylvania substantive law governs the negligence claims raised by the plaintiffs in this diversity action. See Maghakian v. Cabot Oil & Gas Corp., 171 F. Supp. 3d 353, 358 (M.D. Pa. 2016) (citing Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000)); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Under Pennsylvania law, a plaintiff must prove the “four basic  [*548]  elements of duty, breach, causation, and damages.” Perez v. Great Wolf Lodge of the Poconos LLC, 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (quoting Loughran v. Phillies, 2005 PA Super 396, 888 A.2d 872, 874 (Pa. Super. Ct. 2005)). That is, plaintiffs must prove: (1) the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by the defendant; (3) a causal connection between defendant’s breach and plaintiffs’ injury; and (4) actual loss or damages. Id. (quoting Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 61 (3d Cir. 2009)).

The parties’ [**8]  cross-motions for summary judgment concenter on two disputes: first, whether Switchback owed a legal duty of care to Hawkins in view of the no-duty rule set forth in Pennsylvania’s Comparative Negligence Act, 42 Pa. Cons. Stat. § 7102, and second, whether Hawkins assumed the risk of injury, negating any duty of care, by engaging in an activity which he understood to be dangerous.3

A. Duty of Care

The parties offer competing perspectives of the applicable duty of care. Switchback maintains that it had no duty to protect Hawkins from risks inherent in off-road dirt bike riding. Switchback invokes the no-duty rule set forth in Pennsylvania’s Comparative Negligence Act, which provides that an operator of an off-road vehicle riding area—such as Switchback—”shall have no duty to protect riders from common, frequent, expected and nonnegligent risks inherent to the activity, including collisions with riders or objects.” 42 Pa. Cons. Stat. § 7102(b.3)(1). Switchback avers that the possibility of falling and suffering injury while engaged in off-road riding is an inherent, expected risk of the activity, and that the no-duty rule forecloses liability in this case.

Plaintiffs rejoin that the no-duty rule has no application here. They assert that [**9]  this case does not concern a duty to protect patrons from the risks of off-road riding once they have accessed the track, but instead concerns Switchback’s alleged negligence in allowing minors to access its facility in the first instance. Plaintiffs rely on the Armstrong County Court of Common Pleas’ decision in Emerick v. Fox Raceway, 68 Pa. D. & C. 4th 299 (Pa. Ct. Com. Pl. 2004), wherein the state court found that off-road riding area operators have a legal duty to develop and follow internal procedures to check a prospective rider’s age and to ensure minor riders do not access their facility without parental consent. Id. at 318. To hold otherwise, the court found, would be “contrary to good public policy.” Id.

Plaintiffs insist that the Emerick decision is on all fours with their claims. The trouble with Emerick is that it fails to engage with or even acknowledge the no-duty rule, which became law on July 15, 2004—a mere six days before the Emerick decision issued. Plaintiffs posit that the lack of discussion of the new rule suggests that the court deemed it inapplicable, given that the case before the court involved policies which allowed a plaintiff to sneak onto the track rather than the conditions of the track itself. Switchback, for its part, insists [**10]  that the court was either unaware of the new enactment or deemed it inapplicable because the accident at issue occurred before the statute’s effective date.

We cannot ascribe weight to the Emerick decision when it failed to engage with this transformative legislative enactment.  [*549]  The court’s opinion expressly states that it is grounded largely in public policy—but the state legislature six days prior explicitly and substantially transformed the Commonwealth’s negligence policy as concerns tort liability for operators of off-road riding areas. In our view, the failure of the Emerick court to account for the no-duty rule severely diminishes its value as precedent. Nonetheless, because we determine infra that the assumption of the risk doctrine negates any duty that Switchback may have had to protect Hawkins, we need not determine, as a matter of law, what duty of care remains for operators of off-road riding areas with respect to minors attempting to access their facilities.

B. Assumption of the Risk

Most tort claims in Pennsylvania are governed by the comparative negligence doctrine. See 42 Pa. Cons. Stat. § 7102(a). But the legislature expressly preserved assumption of the risk as a defense in two categories of activities: [**11]  off-road vehicle riding, see id. § 7102(b.3)(2), and downhill skiing, see id. § 7102(c)(2). Specifically, as pertains off-road vehicle riding areas, the Comparative Negligence Act states: “The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.” Id. § 7102(b.3)(2). The assumption of the risk doctrine operates to negate any legal duty ascribed to those plaintiffs seek to hold liable: “to the extent the injured plaintiff proceeded in the face of a known danger, he relieved those who may have otherwise had a duty, implicitly agreeing to take care of himself.” Montagazzi v. Crisci, 2010 PA Super 78, 994 A.2d 626, 635 (Pa. Super. Ct. 2010) (citing Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 124 (Pa. 1983)). The doctrine operates as a “no-duty” rule; that is, for those facilities for which the legislature preserved the assumption of the risk defense, the owner or operator “has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1185-86 (Pa. 2010) (citations omitted).

Pennsylvania courts apply a subjective standard when determining whether a minor assumed the risk of a given activity. That is, the court must ask what the “particular minor plaintiff knows, sees, hears, comprehends, and appreciates” [**12]  with respect to the risk involved. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 269 (3d Cir. 2008) (quoting Berman v. Phila. Bd. of Educ., 310 Pa. Super. 153, 456 A.2d 545, 550 (Pa. 1983)). To grant summary judgment based on an assumption of the risk defense, the court must find that the plaintiff (1) “consciously appreciated the risk” attending the activity, (2) assumed the risk of injury by nonetheless engaging in the activity, and (3) sustained an injury that was “the same risk of injury that was appreciated and assumed.” Zeidman v. Fisher, 2009 PA Super 161, 980 A.2d 637, 641 (Pa. Super. Ct. 2009) (quoting Hadar v. Avco Corp., 2005 PA Super 326, 886 A.2d 225, 229 (Pa. Super. Ct. 2005)). When reasonable minds could not disagree, the question of assumption of the risk is for the court. See Carrender, 469 A.2d at 124; see also M.D. v. Ski Shawnee, Inc., No. 14-CV-1576, 2015 U.S. Dist. LEXIS 81392, 2015 WL 3866050, at *4 (M.D. Pa. 2015) (citing Restatement (Second) of Torts § 469 cmt. e (Am. Law Inst. 1965)).

No court has explored the assumption of the risk doctrine in the context of off-road riding areas following the 2004 amendment to the Comparative Negligence Act. But several courts have interpreted the doctrine as pertains to downhill skiing. The Pennsylvania Supreme Court has held that retention of the assumption of the risk doctrine in that context reflects the legislature’s intent that a ski resort  [*550]  owner owes no duty of care to patrons for any risk “‘inherent’ in downhill skiing.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (Pa. 2000); see also Bjorgung, 550 F.3d at 268. Knowledge of the inherent risk has been deemed the sine qua non of an assumption of the risk defense. See M.D., 2015 U.S. Dist. LEXIS 81392, 2015 WL 3866050, at *3. The plaintiff’s age and relative degree of experience [**13]  with the activity are relevant in determining whether that particular plaintiff was aware of a given risk. See id. (citing Bjorgung, 550 F.3d 263; Chepkevich, 607 Pa. 1, 2 A.3d 1174; Hughes, 563 Pa. 501, 762 A.2d 339). We can conceive of no reason why these principles, developed in the analogous context of downhill skiing, should not apply with equal force to negligence claims involving off-road riding areas. Compare 42 Pa. Cons. Stat. § 7102(b.3)(1)-(2) with id. § 7102(c)(1)-(2).

We must first query whether the risk of falling during a jump and suffering serious injury is inherent in the activity of off-road riding. An “inherent risk” is one which “cannot be removed without altering the fundamental nature” of the activity. Bjorgung, 550 F.3d at 268-69 (quoting Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100, 105 (Pa. Super. Ct. 2005)). The Comparative Negligence Act identifies “collisions with riders or objects” as risks inherent in off-road riding. 42 Pa. Cons. Stat. § 7102(b.3)(1). Common sense dictates that the risk of a fall or collision that does not involve another rider or object is equally inherent in the activity. Indeed, Hawkins’ own experience bears this out—he testified that his accident on January 9, 2016, was not his first; that he knew from personal experience that attempting jumps carried a certain risk; and that he wore protective gear in an attempt to mitigate that risk. (Hawkins Dep. 38:22-39:25, 133:3-12, 147:24-148:6). We find that the [**14]  risk of suffering serious injury when attempting a dirt bike jump is one which “cannot be removed without altering the fundamental nature” of dirt bike riding and is thus inherent in the activity. See Bjorgung, 550 F.3d at 268-69 (quoting Crews, 874 A.2d at 105).

We further conclude that reasonable persons could not debate whether Hawkins appreciated and knowingly assumed that risk. Hawkins was nearly 18 years old at the time of the accident and had been riding dirt bikes for more than 12 years. He was a vastly experienced rider. He was well aware that dirt bike riding carried the risk of serious injury and even death. Indeed, Hawkins acknowledged that a dirt bike presents a certain danger “even when the bike’s on the ground.” (Hawkins Dep. 92:4-93:2). Given this unequivocal record testimony, we have little difficulty finding that this particular rider—plaintiff Kameron Hawkins—knew, appreciated, and assumed the risks attending off-road dirt bike riding.

Anticipating the defense’s strategy sub judice, plaintiffs contend that a minor cannot ever assume the risk of a particular activity, again invoking Emerick, in which the Armstrong County Court of Common Pleas held that, because a minor plaintiff is incapable of entering into a contract [**15]  and cannot expressly waive liability for a given activity, a minor cannot impliedly assume that same risk by his or her actions. Emerick, 68 Pa. D. & C. 4th at 319. The state court provided no precedent in support of this sweeping conclusion. In this respect, Emerick
runs counter to the great weight of authority in the state courts and in the Third Circuit Court of Appeals which have held consistently that a minor is capable of assuming the risk of a dangerous activity. See, e.g., Bjorgung, 550 F.3d at 268-69 (quoting Berman, 456 A.2d at 550); Montagazzi, 994 A.2d at 635-36; Berman, 456 A.2d at 550; see also Johnson v. Walker, 376 Pa. Super. 302, 545 A.2d 947, 949-50 (Pa. Super. Ct. 1988).

 [*551]  The undisputed Rule 56 record establishes beyond debate that Hawkins knew, appreciated, and assumed the risk of injury attending off-road dirt bike riding. He was an experienced dirt bike rider who was fully aware that attempting a jump on a dirt bike carried with it an inexorable risk of injury. And he proceeded to attempt a jump on Switchback’s indoor track notwithstanding that understood risk. Switchback accordingly had no duty to protect Hawkins on January 9, 2016. We will grant summary judgment to Switchback on Hawkins’ negligence claim. Because Durbin’s claim for economic damages is derivative of Hawkins’ individual claim, we will likewise grant summary judgment to Switchback on Durbin’s claim.

IV. Conclusion

We are [**16]  not unsympathetic to the serious injuries suffered by Hawkins. But the unequivocal fact remains that Hawkins—having more than a decade of experience riding on similar off-road tracks—voluntarily engaged in the dangerous sport of dirt bike riding knowing full well the risks of the activity. Switchback is not legally responsible for the injuries that Hawkins suffered at its facility. Accordingly, the court will grant summary judgment to Switchback on plaintiffs’ negligence claims. An appropriate order shall issue.

/s/ Christopher C. Conner

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: September 12, 2018

ORDER & JUDGMENT

AND NOW, this 12th day of September, 2018, upon consideration of the parties’ cross-motions (Docs. 27, 31) for summary judgment, and the parties’ briefs in support of and opposition to said motions, (Docs. 29, 33, 36, 38, 41), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. Plaintiffs’ motion (Doc. 27) for summary judgment is DENIED.

2. Defendant’s motion (Doc. 31) for summary judgment is GRANTED as follows:

a. Judgment is ENTERED in favor of defendant and against plaintiffs on [**17]  the negligence claims set forth in Counts I and II of plaintiffs’ complaint.

b. The negligence per se claim set forth in Count III of plaintiffs’ complaint is DISMISSED.

3. The Clerk of Court is directed to CLOSE this case.

/s/ Christopher C. Conner

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: September 12, 2018


City not liable for injuries to BMX rider, riding in City Park on features built without city’s consent

The duty owed by the city to features, structures and changes to the park that the city did not make was low and protected by the recreational use statute in this case.

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

State: Washington, Court of Appeals of Washington, Division One

Plaintiff: Jon L. Wilkerson

Defendant: The City of SeaTac

Plaintiff Claims: City breached the duty to use reasonable care in failing to maintain the park and “allowing man-made jumps to remain despite the . . . inherent danger the jumps posed.”

Defendant Defenses: No Duty, and Washington Recreational Use Statute

Holding: For the City

Year: 2012

This is very sad; the plaintiff ended up a quadriplegic because of the accident. This also explains the lawsuit. There is so much money at stake when someone is rendered paralyzed or a quadriplegic that there is bound to be a lawsuit.

In this case, the plaintiff had just moved to the area. He inquired at a local shop where he could practice jumping in anticipation of his trip to Whistler in BC with some friends. The bike shop sent him to Des Moines Trail Park.

The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the public for recreational use. The City of SeaTac (City) owns and operates the portion of the park located within the City, 1 including dirt mounds in the park that bicyclists use as bike jumps. The dirt jumps, known as “the Softies,” are located about a quarter-mile off a paved trail in the park. The City did not create or maintain the dirt jumps.

The plaintiff considered himself an excellent mountain biker and BMX rider. He was used to doing ramps and jumps.

The area was built by people other than the city. It was known as “the softies” by locals. Around 5 pm one day, the plaintiff went to the park to ride. He rode several jumps and scouted them all out before jumping them. He picked out a gap jump, deciding other jumps were outside of his skill set.  While riding the gap jump he crashed and rendered himself a quadriplegic.

The plaintiff could not move and laid calling for help for several hours before passing out.  Approximately 1 AM the next day the city reported the plaintiff’s car in the parking lot. Around 11 am, two cyclists found the plaintiff and notified EMS.

While in a rehabilitation hospital the plaintiff stated: “…that although he was an experienced mountain biker, as he went over the jump, he came down “wrong” because he” ‘was a bit out of practice’ ” and ” ‘a little too bold.’

The plaintiff filed this lawsuit against the city. The trial court dismissed the claims based on the city’s motion for summary judgment, and this appeal followed.

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

The appellate court first looked at the defense provided by the Recreational Use Statue of Washington. Chapter 4.24  Special Rights of Action and Special Immunities.

Under Washington’s law a landowner is immune from liability for injuries upon his land unless the injury is “caused by a known dangerous artificial latent condition “for which warning signs have not been conspicuously posted.”

To establish the City was not immune from suit under RCW 4.24.210, Wilkerson must show the City charged a fee for the use of the land, the injuries were intentionally inflicted, or the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis,

The issue then came down to whether or not the jumps were a latent condition. There are four elements the plaintiff must prove to show the jumps were a latent condition.

Each of the four elements of a known dangerous artificial latent injury-causing condition must be present in order to establish liability under the recreational land use statute. “If one of the four elements is not present, a claim cannot survive summary judgment.”

The definition of latent under Washington Law is “means” ‘not readily apparent to the recreational user.”

In determining whether the injury-causing condition is latent, the question is not whether the specific risk is readily apparent but, instead, whether the injury-causing condition itself is readily apparent.

The plaintiff’s experts argued that the approach which was described as an S-curve was a latent condition. However, the court distinguished that argument by stating there was a difference between a latent condition and a patent condition that had latent dangers.

The condition itself must be latent.” While the court expressly acknowledged that “it may not have occurred to Van Dinter that he could injure himself in the way he did,” the court concluded that “this does not show the injury-causing condition — the caterpillar’s placement — was latent. . . . The caterpillar as well as its injury-causing aspect — its proximity to the grassy area — were obvious.”

Nor did the fact that the plaintiff did not appreciate the risk caused by the approach change the condition of the land.

The plaintiff then argued that his secondary injury, lying in the park all-night, suffering hypothermia that required additional surgeries and hospitalizations were not covered by the recreational use statute.

Secondary injuries were not covered under Wisconsin’s Recreational Use Statute. However, the language in the Wisconsin statute differs from the language in the Washington statute.

By contrast, RCW 4.24.200-.210 grants a broader immunity to landowners “who allow members of the public to use [their lands] for the purposes of outdoor recreation.” RCW 4.24.210(1); (because landowner “open[ed] up the lands for recreational use without a fee,” and thereby “brought itself under the protection of the immunity statute,” landowner was immune from liability regardless of whether “a person coming onto the property may have some commercial purpose in mind”).

The court held the immunity provided by the Washington Recreational Use Statute was broadly written and covered the secondary injuries the plaintiff suffered.

The plaintiff then argued the city was willful and wanton or intentional because the city knew that other cyclists had been injured at the park. This argument stemmed from the plaintiff asserting that “that the government’s failure to” ‘put up signs and ropes’ ” was deliberate and the government” ‘knew or should have known’ ” of the dangerous condition.”

However, the court found that this did not rise to the level of willful or wanton or intentional negligence.

Here, as in Jones, there is no dispute that the City did not create the dirt jumps or S-curve approach. While the alleged failure of the City to “bulldoze the Softies” or post warning signs may constitute negligence, it is not willful or wanton conduct under the recreational land use immunity statute.

The plaintiff next argued the defendant had a duty to supervise and patrol the park.

Wilkerson also claims the City assumed a duty to supervise and patrol the park. Wilkerson points to the sign the City posted in the parking lot and the failure to take some action after the City employee saw his car in the parking lot at 1:00 a.m. The sign posted at the entry to the Des Moines Creek Trail Park parking lot stated:

However, this argument also failed because if there was a duty, it was owed to the general public, not to the plaintiff specially.

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).”

Because the record shows that the City did not assume a duty or make express assurances to Wilkerson, the public duty doctrine bars his claim that the City owed him a duty of care.

The appellate court agreed with the trial court, and the dismissal of the lawsuit was affirmed.

So Now What?

It is sad when any activity renders someone, especially a young person, a quadriplegic. However, sometimes, you have to accept the fact you screwed up, or misjudged the jump, as the plaintiff admitted to in the rehab hospital and live with your mistakes.

If you are such a person, but as much disability, health and life insurance that you can afford, it may be the only way to stay somewhat better off than what the government can provide.

From the stand point of the defendant city, you need to understand your duty and your level of duty to features, additions or other things that are added to a park or city property without your permission or without you exercising control over the situation.

Not all cities can escape liability when a group of people add to a park.

 

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Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

Jon L. Wilkerson, Appellant, v. The City of SeaTac, Respondent.

No. 66524-3-I

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

2012 Wash. App. LEXIS 2592

April 17, 2012, Oral Argument

November 5, 2012, Filed

NOTICE:

As amended by order of the Court of Appeals March 27, 2013. RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.

SUBSEQUENT HISTORY: Reported at Wilkerson v. City of SeaTac, 171 Wn. App. 1023, 2012 Wash. App. LEXIS 2614 (2012)

Reconsideration denied by, Modified by Wilkerson v. City of SeaTac, 2013 Wash. App. LEXIS 797 (Wash. Ct. App., Mar. 27, 2013)

PRIOR HISTORY: [*1]

Appeal from King County Superior Court. Docket No: 09-2-23226-1. Judgment or order under review. Date filed: 12/10/2010. Judge signing: Honorable Michael C Hayden.

CORE TERMS: jump, recreational, latent, land use, bike, landowner, gap, summary judgment, immunity, dirt, speed, wanton, injury-causing, willful, trail, pitch, lead-in, user, parking lot, “appreciate”, creek, softies, owed, mountain, readily apparent, artificial, recreation, channel, posted, stump

COUNSEL: Noah Christian Davis, In Pacta PLLC, Seattle, WA, for Appellant(s).

Francis Stanley Floyd, Nicholas L. Jenkins, Floyd Pflueger & Ringer PS, Seattle, WA; Mary E. Mirante Bartolo, City of Seatac, Seatac, WA; Mark Sterling Johnsen, City of Seatac Legal Dept, Seatac, WA, for Respondent(s).

JUDGES: AUTHOR: Ann Schindler, J. WE CONCUR: Anne Ellington, JPT., C. Kenneth Grosse, J.

OPINION BY: Ann Schindler

OPINION

¶1 Schindler, J. — Jon Wilkerson challenges the decision on summary judgment to dismiss his lawsuit against the City of SeaTac based on the recreational land use immunity statute, RCW 4.24.200-.210. We affirm.

FACTS

¶2 The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the public for recreational use. The City of SeaTac (City) owns and operates the portion of the park located within the City, 1 including dirt mounds in the park that bicyclists use as bike jumps. The dirt jumps, known as “the Softies,” are located about a quarter-mile off a paved trail in the park. The City did not create or maintain the dirt jumps.

1 The City of Des Moines and [*2] the Port of Seattle own and operate other portions of the park.

¶3 In June 2006, 30-year-old Jon Wilkerson moved from Arkansas to Kent, Washington to work as a physical therapist. Wilkerson had plans to go mountain biking at Whistler in British Columbia with friends in July. Wilkerson testified that he considered himself an “experienced mountain biker” and had previously used BMX 2 and mountain bikes to do ramp and dirt jumps.

2 (Bicycle motocross.)

¶4 About a week after moving to Kent, Wilkerson went to a bike shop to buy a new helmet. Wilkerson asked the bike shop manager “about nearby parks that had dirt jumps — where I could ride my bike and practice making jumps in anticipation of [the] bike trip to Whistler with friends.” The bike shop manager told Wilkerson about the Des Moines Creek Trail Park and the “BMX style dirt jump[s],” and “told [him] how to get to [the Softies].”

¶5 On June 21, Wilkerson drove to the Des Moines Creek Trail Park. Wilkerson arrived at the park between 5:00 and 6:00 p.m. and parked his Ford Expedition in the parking lot located at South 200th Street. Wilkerson left his cell phone in his car. Wilkerson testified that he went to the park that day to train and “work[] [*3] on jumps that I knew that I would need to be able to clear at Whistler. . . . I was working that day to prepare to do more advanced techniques at Whistler.”

¶6 After riding around the park for about 30 to 45 minutes on “single [bike] track trails,” Wilkerson testified that he followed the directions he received from the bike shop manager to get to the Softies. Wilkerson said he “rode down a ravine, crossed a creek, walked [his] bike up and the softies were on the right.” When he arrived at the Softies, no one else was there.

¶7 Wilkerson testified that he examined the dirt jumps and understood the importance of the “approach speed,” as well as the condition of the track and the height and pitch of the jumps. Wilkerson said that he rode his bike over the jumps to “try some of them out” before selecting a smaller “gap jump.” Wilkerson said he decided the other jumps “weren’t within my skill set” because they were “too steep” and “too close together,” and concluded the smaller gap jump was “within my skill set.”

¶8 The dirt jump Wilkerson selected contained “two mounds with a gap in between.” Wilkerson testified that he inspected the jump before attempting it, and rode down the approach to check [*4] the pitch and surface composition.

Q But you did check the jump out before you went off of it, correct?

A I did.

Q And, you rode down and actually, with the intention of checking it out before you went off of it, correct?

A I did.

Q And, you were looking for things like the pitch of the jump, correct?

A Yes.

Q You were looking to see if the composition of the surfaces was adequate, correct?

A Yes.

Q You were looking to see if the jump was safe before you went off of it, correct?

A Yes.

¶9 Wilkerson testified that he concluded “there was enough of a grade to [carry] me into [sic] with a moderate to fast amount of speed.” Wilkerson admitted that it had been at least a couple of years “since I’d done a gap jump.” But Wilkerson said that he had no concerns about his ability to accomplish the jump.

¶10 In his declaration in opposition to summary judgment, Wilkerson states he “reviewed” the jump, including “the pitch of the take-off jump itself and the size of the jump and the gap and thought everything looked ok,” but “did not take a practice ‘run in.'” The declaration states, in pertinent part:

14. I then rode over to a smaller jump (which had a crevice or drop in the middle) called a gap jump and felt that it was well within my “skill set”;

15. I then generally reviewed the jump, including the pitch of the take-off jump itself and the size of the jump and the gap and thought everything looked ok;

16. That is, looking at the jump itself, it looked fine for me to take;

17. I did not measure the gap width, nor the pitch of the jump nor the pitch of the landing;

… .

23. I also did not take a practice “run in” leading up to the jump because I had no reason to think that there was some danger to me from the approach to the jump or that the approach would be problematic or prevent me from clearing the jump.

¶11 Wilkerson testified that he “gauged the speed to be appropriate for the gap” and approached the jump “moderate to fast, the speed needed to get over the gap.” Wilkerson missed the jump and “[t]umbled forward” over the front of the bike. Wilkerson testified, in pertinent part:

On the back side of the jump for some reason my back wheel didn’t make it all the way over the berm of the back side of the jump. So, [*5] it impacted the top of the berm, rebounded and knocked me over the front of the bicycle.

¶12 Wilkerson hit the ground head-first and landed on his back five or six feet beyond the jump. Wilkerson was unable to move. Wilkerson called for help for some time before losing consciousness.

¶13 At about 1:00 a.m., a City employee reported seeing Wilkerson’s car in the parking lot. Two bicyclists found Wilkerson at about 11:00 a.m. and called 911. Emergency personnel immediately responded and transported Wilkerson to Harborview Medical Center. Wilkerson suffered from hypothermia and went into cardiac arrest. During “life-saving efforts,” Wilkerson’s lung was lacerated. Wilkerson successfully underwent surgery for the laceration. The doctors at Harborview diagnosed Wilkerson with a C4-C6 vertebra fracture. Wilkerson is quadriplegic.

¶14 After an assessment in Arkansas in September 2006, Wilkerson participated in the program at the Baylor Institute for Rehabilitation in Texas. During the assessment, Wilkerson said that although he was an experienced mountain biker, as he went over the jump, he came down “wrong” because he ” ‘was a bit out of practice’ ” and ” ‘a little too bold.’ ”

¶15 Wilkerson filed a lawsuit [*6] against the City alleging the City breached the duty to use reasonable care in failing to maintain the park and “allowing man-made jumps to remain despite the . . . inherent danger the jumps posed.” The complaint also alleged the City breached the duty to supervise the park and report Wilkerson’s vehicle “to authorities.” Wilkerson claimed the failure to report seeing his car in the parking lot caused him to suffer hypothermia and injury to his lungs. The City denied the allegations and asserted a number of affirmative defenses, including immunity under the recreational land use statute, RCW 4.24.200-.210.

¶16 The City filed a motion for partial summary judgment to dismiss the claim that the City breached the duty to remove the dirt jumps. The City argued that because there was no evidence of a known dangerous artificial latent condition, the claim was barred by the recreational land use statute.

¶17 Wilkerson argued there were genuine issues of material fact as to whether the approach to the gap jump was a known dangerous artificial latent condition. Wilkerson also argued that the City’s failure to remove, redesign, or maintain the dirt jumps was “willful and wanton conduct [that] rises to [*7] the level of intentional conduct.”

¶18 In support of his argument that the approach to the gap jump was a latent condition, Wilkerson submitted the declarations of Samuel Morris, Jr., a professional mountain bike racer; Lee Bridgers, the owner of a company that conducts mountain bike jumping clinics; and his own declaration. 3

3 In support of his assertion that the approach to the gap jump was a “known” and “dangerous” condition, Wilkerson submitted excerpts from the deposition of the City’s Acting Fire Chief and incident reports of bicycle accidents.

¶19 In his declaration, Wilkerson states that he did not “see[] or appreciate[] the S-curved, angled lead-in to the jump.” Morris states that in his opinion,

it was not the jump itself that caused Jon to crash, but the curvy nature of the lead-in, or approach, to the jump, which more probably than not reduced his speed enough to prevent him from successfully completing the jump. . . . While Jon testified that he reviewed the size of the gap and the pitch of the jump, what he did not consider and what a beginner to even an intermediate jumper would mostly likely not consider because of the subtleness is the curved approach leading into the jump and [*8] the effect that the approach would have on the ability of the rider to complete the jump. These conditions would not be apparent to a rider of Jon’s skill level.

¶20 Bridgers testified that the cause of the crash was the “lack of speed due to the twists and turns in the approach.”

[T]he curvy lead-in to the jump prevented Jon from successfully attaining the speed necessary to complete the jump and was the primary cause of Jon’s injury.

Bridgers stated that in his opinion, Wilkerson did not appreciate the S-curve approach.

While the S-curve after the berm is not visibly dramatic, it affects the direction, physics, and speed of the rider attempting to take the jump and therefore has a significant impact on the rider’s ability to successfully clear the jump, especially on a first attempt. This is something that Jon obviously did not notice or appreciate and which clearly had an impact on his ability to make the jump.

¶21 The court granted the motion for partial summary judgment. Even assuming the effect of the S-curve approach to the jump was not readily apparent to Wilkerson, the court concluded it was not a latent condition. The court ruled that as a matter of law, the inability to appreciate the [*9] risk does not constitute a latent condition.

So for purposes of the summary judgment, I am assuming that the trail, the approach leading to the jump was curved in some fashion such that it would have limited the speed of a biker who arrived at the jump site.

I am going to further conclude, for purposes of the summary judgment, that it would not have been readily apparent to the biker that he could not acquire sufficient speed to clear the jump.

[T]here is no testimony that you couldn’t see the path. The path was there. The path was not submerged; it was not invisible. Whether it was straight or curved, it was the path that one could see.

. . . .

[T]here are no cases where the courts have said you can look directly at it, you can see what is there to be seen, and the inability to appreciate the risk posed constitutes latency. I didn’t see any cases like that.

I find as a matter of law that the lead up, whether it was curved or straight, is not the latent condition required under the statute, and it does not abrogate the statutory immunity.

¶22 The court also concluded there was no evidence that the City acted with willful and wanton disregard for a danger posed by the Softies.

I would also suggest [*10] that there is no evidence here that would rise to the level of willful and wanton disregard, if indeed that is the standard in Washington.

I will accept for a summary judgment proposition that the city knew or should have known these jumps were out there, they knew or should have known that they were dangerous and there have been prior accidents, and that they did not go in and sign it or remov[e them i]s not the standard for recreational use immunity.

¶23 The “Order Granting Defendant SeaTac’s Motion for Summary Judgment Re: Recreational Use Immunity” dismisses the claim that “the City of SeaTac owed [Wilkerson] a duty to protect him from his failed mountain bike jump” at the Des Moines Creek Trail Park. The court denied Wilkerson’s motion for reconsideration.

¶24 The City then filed a motion for summary judgment dismissal of Wilkerson’s claim that the City breached the duty to supervise the park and report seeing Wilkerson’s vehicle in the parking lot. The City argued that the recreational land use statute and the public duty doctrine barred these claims.

¶25 Wilkerson argued the recreational land use statute did not apply to the cardiac and lung injuries he suffered as a result of remaining in [*11] the park overnight because he was no longer engaged in recreation. Wilkerson also argued that the City assumed a duty to users of the park to exercise reasonable care in patrolling the park.

¶26 The court granted summary judgment. The court ruled that the recreational land use statute barred Wilkerson’s claim that the City was liable for the injuries Wilkerson suffered as a result of the crash. The court’s oral ruling states, in pertinent part:

I mean to suggest that a landowner is immune from someone using their land for recreation, but if they get hurt, then a new duty arises to come take care of them and to use reasonable efforts to make sure they are safe after they are injured, as opposed to being safe before they are injured, really stretches it too far.

[T]o suggest the landowner has a duty not to protect the person from injury, but to treat them after they are injured, or to be alert to the fact of injury, even though they are not alert to prevent the injury, makes no sense.

So I am ruling that in the circumstances of having failed to detect him injured on site and failed to having brought medical services to him fast enough, the city is still acting in its capacity as landowner.

The [*12] “Order Granting Defendant SeaTac’s Motion for Summary Judgment Re: Duty to Rescue” dismisses Wilkerson’s claim that the City “owed him a duty to supervise and rescue him sooner.” 4

4 Wilkerson filed a motion to compel the City to produce discovery, which the court denied. Wilkerson appeals the order denying the motion to compel but does not assign error to the order or address it in the briefs. Accordingly, the issue is waived. RAP 10.3(a)(4); Hollis v. Garwall, Inc., 137 Wn.2d 683, 689 n.4, 974 P.2d 836 (1999).

ANALYSIS

¶27 Wilkerson contends the trial court erred in dismissing his negligence claims against the City under the recreational land use immunity statute, RCW 4.24.200-.210, and the court erred in concluding that the statute barred his claim for “hypothermia and cardiac and lung injuries.”

¶28 We review summary judgment de novo and consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bulman v. Safeway, Inc., 144 Wn.2d 335, 351, 27 P.3d 1172 (2001). [*13] A party cannot rely on allegations in the pleadings, speculation, or argumentative assertions that factual issues remain. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).

¶29 The recreational land use statute, RCW 4.24.200-.210, grants immunity to landowners for unintentional injuries to recreational users of the land.

¶30 The statute modifies a landowner’s common law duty in order “to encourage landowners to open their lands to the public for recreational purposes.” Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001). Because the recreational land use statute is in derogation of common law, it is strictly construed. Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437, 824 P.2d 541 (1992).

¶31 Under RCW 4.24.200, the purpose of the recreational land use statute is to

encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon. [5]

5 The legislature amended the statute several times between 2006 and 2012. Laws of 2006, ch. 212, § 6; [*14] Laws of 2011, ch. 53, § 1; Laws of 2011 ch. 171, § 2; Laws of 2011 ch. 320, § 11; Laws of 2012 ch. 15, § 1. The amendments are not pertinent to this appeal.

¶32 Under RCW 4.24.210, a landowner is immune from liability for unintentional injuries unless the injury is caused by a known dangerous artificial latent condition “for which warning signs have not been conspicuously posted.” RCW 4.24.210 states, in pertinent part:

(1) [A]ny public or private landowners . . . or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, . . . bicycling, . . . without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

. . . .

(4)(a) Nothing in this section shall prevent the liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.

¶33 To establish the City was not immune [*15] from suit under RCW 4.24.210, Wilkerson must show the City charged a fee for the use of the land, the injuries were intentionally inflicted, or the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis, 144 Wn.2d at 616.

¶34 Here, there is no dispute that the Des Moines Creek Trail Park was open to the public for recreational purposes and no fee was charged. The parties dispute whether the injury-causing condition was latent. Each of the four elements of a known dangerous artificial latent injury-causing condition must be present in order to establish liability under the recreational land use statute. Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920, 969 P.2d 75 (1998). “If one of the four elements is not present, a claim cannot survive summary judgment.” Davis, 144 Wn.2d at 616.

¶35 Wilkerson asserts there are genuine issues of material fact as to whether the S-curve lead-in was a latent condition, and whether a recreational user would recognize the danger of the S-curve approach. Wilkerson contends the S-curve “lead-in to the jump” caused his injuries.

¶36 For purposes of the recreational land use statute, RCW 4.24.210, [*16] “latent” means ” ‘not readily apparent to the recreational user.’ ” Ravenscroft, 136 Wn.2d at 924 (quoting Van Dinter v. City of Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993)). In determining whether the injury-causing condition is latent, the question is not whether the specific risk is readily apparent but, instead, whether the injury-causing condition itself is readily apparent. Ravenscroft, 136 Wn.2d at 924. A landowner will not be held liable where a patent condition posed a latent, or unobvious, danger. Van Dinter, 121 Wn.2d at 46. Although latency is a factual question, when reasonable minds could reach but one conclusion from the evidence presented, summary judgment is appropriate. Van Dinter, 121 Wn.2d at 47.

¶37 Even viewing the evidence in the light most favorable to Wilkerson, as a matter of law, the S-curve lead-in was not a latent condition. At most, the S-curve approach is a patent condition that “posed a latent, or unobvious, danger.” Van Dinter, 121 Wn.2d at 46.

¶38 In Van Dinter, the Washington Supreme Court addressed the difference between a latent condition and a latent danger. In Van Dinter, Van Dinter struck his eye on a protruding metal antenna of a caterpillar-shaped [*17] playground toy located next to the grassy area at the park where he was engaged in a water fight. Van Dinter, 121 Wn.2d at 40. Van Dinter stated that “he did not realize someone on the grass could collide with any part of the caterpillar.” Van Dinter, 121 Wn.2d at 40. Van Dinter asserted “a condition is latent for purposes of RCW 4.24.210 if its injury-producing aspect is not readily apparent to the ordinary recreational user,” and argued that “while the caterpillar was obvious, its injury-causing aspect was not.” Van Dinter, 121 Wn.2d at 45.

¶39 The court disagreed with Van Dinter and held that “RCW 4.24.210 does not hold landowners potentially liable for patent conditions with latent dangers. The condition itself must be latent.” Van Dinter, 121 Wn.2d at 46. While the court expressly acknowledged that “it may not have occurred to Van Dinter that he could injure himself in the way he did,” the court concluded that “this does not show the injury-causing condition — the caterpillar’s placement — was latent. . . . The caterpillar as well as its injury-causing aspect — its proximity to the grassy area — were obvious.” Van Dinter, 121 Wn.2d at 46.

¶40 Here, Wilkerson’s experts testified that the [*18] danger posed by the S-curve approach was not “obvious” to “beginning to intermediate” bike jumpers.

[T]he S-curve . . . affects the direction, physics, and speed of the rider attempting to take the jump . . . . It is my opinion that the dangers posed by the S-curved lead-in to the jump were not obvious for [Wilkerson] and other beginning to intermediate jumpers. [6]

6 (Emphases added.)

¶41 Morris testified that it was unlikely that Wilkerson or other jumpers would “consider . . . the effect that the approach would have.”

While [Wilkerson] testified that he reviewed the size of the gap and the pitch of the jump, what he did not consider and what a beginner to even an intermediate jumper would most likely not consider because of the subtleness is the curved approach leading into the jump and the effect that the approach would have on the ability of the rider to complete the jump. [7]

7 (Emphases added.)

¶42 The testimony that Wilkerson did not “appreciate” the danger of the S-curve approach to the jump does not establish a latent condition. As in Van Dinter, at most, Wilkerson’s failure to “appreciate” the S-curve lead-in “shows that the present situation is one in which a patent condition posed a latent, [*19] or unobvious, danger.” Van Dinter, 121 Wn.2d at 46.

¶43 The cases Wilkerson relies on, Ravenscroft and Cultee v. City of Tacoma, 95 Wn. App. 505, 977 P.2d 15 (1999), are distinguishable. In Ravenscroft, a man was injured when the boat he was riding in hit a rooted tree stump submerged in a channel of water that formed part of a dam reservoir. Ravenscroft, 136 Wn.2d at 915. The driver of the boat testified that “he saw nothing that would indicate the presence of any submerged objects or hazards in the direction he was traveling.” Ravenscroft, 136 Wn.2d at 916. Other witnesses testified that other boats had hit the stumps. Ravenscroft, 136 Wn.2d at 925.

¶44 The court identified the injury-causing condition as the “man-created water course, containing a submerged line of tree stumps” that was “created by [the Washington Water Power Company] cutting down trees, leaving stumps near the middle of a water channel, then raising the river to a level which covered the stumps.” Ravenscroft, 136 Wn.2d at 923. The court concluded that summary judgment was not appropriate because “[t]he record does not support a conclusion that the submerged stumps near the middle of the channel were obvious or visible as [*20] a matter of law.” Ravenscroft, 136 Wn.2d at 926.

¶45 In Cultee, a five-year-old girl rode a bicycle on a road with an eroded edge that was partially flooded by the Hood Canal tidal waters. Cultee, 95 Wn. App. at 509. The girl fell into the water and drowned at a point where the road and the eroded edge were covered by two to four inches of muddy water and the adjacent fields were covered with several feet of water. Cultee, 95 Wn. App. at 510. The court held there were material issues of fact about whether the condition that killed the girl was “the depth of the water alone, or a combination of the muddy water obscuring the eroded edge of the road and an abrupt drop into deep water;” and whether ” ‘recreational users’ would have been able to see the edge of the road, given that it was eroded and covered with a two-to-four-inch layer of muddy water.” Cultee, 95 Wn. App. at 523.

¶46 Wilkerson also argues that the trial court erred in concluding the recreational land use statute bars his claim for cardiac and lung injuries. Wilkerson argues the statute does not apply to the injuries he suffered after he missed the jump because he was not “engaged in recreation” or “using” the land when he suffered [*21] cardiac and lung injuries.

¶47 Wilkerson relies on Wisconsin law in support of his argument that the recreational land use statute does not apply to secondary injuries. But unlike RCW 4.24.210(1), the Wisconsin statute predicates landowner immunity on recreational use. The Wisconsin statute states, in pertinent part: “[N]o owner . . . is liable for . . . any injury to . . . a person engaging in recreational activity on the owner’s property.” Wis. Stat. § 895.52(2)(b). By contrast, RCW 4.24.200-.210 grants a broader immunity to landowners “who allow members of the public to use [their lands] for the purposes of outdoor recreation.” RCW 4.24.210(1); see also Gaeta v. Seattle City Light, 54 Wn. App. 603, 608-10, 774 P.2d 1255 (1989) (because landowner “open[ed] up the lands for recreational use without a fee,” and thereby “brought itself under the protection of the immunity statute,” landowner was immune from liability regardless of whether “a person coming onto the property may have some commercial purpose in mind”).

¶48 Next, Wilkerson argues that the City’s willful and wanton or intentional conduct precludes immunity under the recreational land use statute because the City knew that other bicyclists [*22] had been injured. Jones v. United States, 693 F.2d 1299 (9th Cir. 1982), does not support Wilkerson’s argument.

¶49 In Jones, the plaintiff went to Hurricane Ridge located in Olympic National Park as part of a church-sponsored event. Jones, 693 F.2d at 1300. The plaintiff was severely injured while riding on an inner tube at Hurricane Ridge. Jones, 693 F.2d at 1300. The plaintiff sued the church and the federal government. Jones, 693 F.2d at 1300. The jury returned a verdict against the church but found the plaintiff was also negligent. Jones, 693 F.2d at 1301. The trial court entered judgment in favor of the federal government under Washington’s recreational land use statute on the grounds that the plaintiff did not establish the government’s conduct was willful or wanton. Jones, 693 F.2d at 1300-01. 8

8

The evidence established that the extent of the danger was not actually or reasonably known to the Government. Its failure to put up signs and ropes was negligence which proximately contributed to the plaintiff’s accident but it did not constitute “an intentional failure to do an act” nor was it “in reckless disregard of the consequences.”

Jones, 693 F.2d at 1304 (internal quotation marks [*23] omitted).

¶50 On appeal, the plaintiff argued the court erred in concluding the government’s conduct was not willful or wanton under the recreational land use statute. Jones, 693 F.2d at 1301. The plaintiff asserted that the government’s failure to ” ‘put up signs and ropes’ ” was deliberate and the government ” ‘knew or should have known’ ” of the dangerous condition. Jones, 693 F.2d at 1304.

¶51 The Ninth Circuit affirmed. Jones, 693 F.2d at 1305. The Court distinguished cases that involved specific acts of the government that create a dangerous condition, and held that ” ‘[w]anton misconduct is not negligence since it involves intent rather than inadvertence, and is positive rather than negative.’ ” Jones, 693 F.2d at 1305 n.21 (quoting Adkisson v. City of Seattle, 42 Wn.2d 676, 687, 258 P.2d 461 (1953)). Because the government did not create the injury-causing condition, and the ” ‘impact of tubing and the inherent dangers . . . were not apparent to the public or the Government,’ ” the Court concluded the failure to put up signs or ropes was not intentional and willful or wanton conduct under the recreational land use statute. Jones, 693 F.2d at 1305.

We agree with the district court that, [*24] “While it was negligence on the Government’s part not to put up signs or ropes, its failure to do so does not rise to the status of willful and wanton conduct under the law of Washington.”

Jones, 693 F.2d at 1305.

¶52 Here, as in Jones, there is no dispute that the City did not create the dirt jumps or S-curve approach. While the alleged failure of the City to “bulldoze the Softies” or post warning signs may constitute negligence, it is not willful or wanton conduct under the recreational land use immunity statute.

¶53 Wilkerson also claims the City assumed a duty to supervise and patrol the park. Wilkerson points to the sign the City posted in the parking lot and the failure to take some action after the City employee saw his car in the parking lot at 1:00 a.m. The sign posted at the entry to the Des Moines Creek Trail Park parking lot stated:

Park is patrolled by City of SeaTac Police Department . . .

Park is operated by City of SeaTac Parks & Recreation Department . . .

. . . .

Park is closed from dusk to dawn unless otherwise posted

. . . .

Parking . . . is only permitted during park hours.

. . . .

Unauthorized vehicles will be impounded.

¶54 But in order to establish liability, Wilkerson must show there [*25] is a duty owed to him and not a duty owed to the public in general. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001).

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).”

Babcock, 144 Wn.2d at 785 (quoting Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988) 9). Because the record shows that the City did not assume a duty or make express assurances to Wilkerson, the public duty doctrine bars his claim that the City owed him a duty of care. Babcock, 144 Wn.2d at 785-86.

9 (Internal quotation marks and citation omitted.)

¶55 We affirm dismissal of Wilkerson’s lawsuit against the City.

Grosse, J., and Ellington, J. Pro Tem., concur.

After modification, further reconsideration denied March 27, 2013.


Michigan decision rules skier who fell into half pipe after landing a jump could not recover based on 2 different sections of the Michigan Ski Area Safety Act.

Language of the Michigan Ski Area Safety Act used to stop plaintiff’s claims two different ways.

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

State: Michigan, Court of Appeals of Michigan

Plaintiff: Marvin Marshall and Christine Marshall

Defendant: v Boyne USA, Inc.,

Plaintiff Claims: Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe.

Defendant Defenses: plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.

Holding: for the defendant

Year: 2012

Plaintiff was skiing with a friend. In the morning, they had skied through the terrain park but had not skied the half pipe. In the afternoon, they went back to the terrain park and skied several jumps again. Plaintiff also noticed the warning sign at the entrance of the terrain park.

The half pipe in this case appears to be a trough lower than the height of the ski slope based upon the description in the decision. As the plaintiff landed a jump, he allegedly slid to a stop and then fell into the half pipe suffering injuries.

The plaintiff and his spouse sued the resort. The resort filed a motion for summary disposition (similar to a motion for summary judgment) with the court based on:

…plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.

That motion was denied, and the defendants appealed the denial to the Michigan Appellate Court.

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

The court firs looked at the Michigan Ski Area Safety Act. The court found the claims of the plaintiff were barred by the act. Under the Michigan act, a skier assumes the risks of the sport that are necessary or not obvious.

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Among the risks assumed are “variations in terrain.” MCL 408.342(2).

Because the actions of the plaintiff were covered under the act, the court then looked to see if the actions of the defendant ski area were in violation of any duty imposed under the act. The court did not find any violations of the act.

Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that defendant complied with this requirement.

The plaintiff argued that failing to mark the half pipe breached a duty to the plaintiff. However, the court found the plaintiff accepted that risk of an unmarked half pipe when he chose to ski into the terrain park and passed the warning sign.

By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law.

The defendant raised two additional arguments in its defense. The first was a release signed by the plaintiff when he rented his ski equipment and the “release” on the back of his lift ticket. Because the statute barred his claims and the lawsuit would be dismissed, the court did not look into either of those defenses.

The court reversed the trial court decision.

There was also a dissent in the case. The dissent agreed with the majority that the case should be reversed by based its decision to reverse on other grounds.

The dissent found the terrain park and the half pipe were necessary installations in a terrain park. However, the dissent agreed with the plaintiff’s that the half pipe was not obvious, which is what the dissent believes persuaded the trial court to deny the defendant’s motion.

However, because the plaintiff to actual knowledge of the half pipe that he observed earlier in the day while skiing he could not claim it was a hidden danger.

The dissent also felt the plaintiff should lose because the plaintiff failed to maintain reasonable control of his course and speed at all times as required by the Michigan Ski Area Safety Act.

I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after  executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

The case was sent back to the trial court to be dismissed.

So Now What?

It’s nice when a plan comes together, and a statute is written so the court’s interpretation of the statute proceeds along the same lines as the writers of the statute intended.

The Michigan Ski Area Safety Act is a very effective act, almost as encompassing as Colorado’s. The act was written to make sure that injured skiers could only sue if the ski area actually did something to injure the plaintiffs.

The facts in this case also do not lead you to believe the plaintiff stretched the truth. His actions in skiing across the mountain to hit a jump which sent him further across the mountain diagonally were not super intelligent. However, did not result in any injury except his own.

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Marvin Marshall, Christine Marshall, v Boyne USA, Inc., Terrain Park, Half-Pipe, Half Pipe, Jump, Michigan Ski Safety Act, Skier Safety Act,

 


Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marvin Marshall and Christine Marshall, Plaintiffs-Appellees, v Boyne USA, Inc., Defendant-Appellant.

No. 301725

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 928

May 15, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

SUBSEQUENT HISTORY: Leave to appeal denied by Marshall v. Boyne United States, Inc., 2012 Mich. LEXIS 2153 (Mich., Dec. 5, 2012)

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-091822-NF.

CORE TERMS: half pipe, terrain, skiing, ski, jump, skied, hit, inhere, hazard, trail, sport, downhill, feet, Safety Act SASA, ski resort, skier, slope, top, morning, timing, reversing, booth, edge

JUDGES: Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ. HOEKSTRA, P.J., (concurring).

OPINION

Per Curiam.

Defendant appeals by leave granted from the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand.

In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend, Randy. They skied several trails that morning, and also skied in the terrain park. Plaintiff was familiar with and had skied in terrain parks, which he described as having “jumps and different obstacles[.]” Plaintiff saw a warning sign at the entrance to the terrain park, but he did not read it.

The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skiers ski inside of the half pipe. On the morning of February 5, plaintiff saw the half pipe in the terrain park, but he did not ski into it. Plaintiff skied in an area just to the right of the half pipe.

After lunch, plaintiff and his friend went into the terrain park for a second time. They entered the terrain park from the left side this time. [*2] Plaintiff skied down the terrain park and hit the edges of a series of jumps. When plaintiff was halfway down the hill, Randy yelled to him and plaintiff stopped. Randy said that there was a good jump to their right that would be “good to hit.” Randy went first, and plaintiff followed. Plaintiff proceeded laterally across the hill (to the right, if one is facing downhill). Plaintiff “came almost straight across because there was enough of an incline . . . [he] didn’t have to come downhill much.”

Plaintiff successfully navigated the jump, which caused him to go up into the air about 12 to 15 feet. He landed and came to a stop by turning quickly to the right and power-sliding to a stop. As he looked around for Randy, plaintiff felt his feet go over the edge of the half pipe. He slid down the side a little bit, and then hit the bottom. Plaintiff shattered his left calcaneus (heel) and the top of his tibia, and broke his hip and right arm. He also fractured his left eye socket where his pole hit his head when he fell.

Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, [*3] arguing that plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket. The trial court denied the motion, concluding that there remained issues of fact. Thereafter, we granted defendant’s motion for leave to appeal. We review the trial court’s decision de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 23; 664 NW2d 756 (2003).

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Anderson, 469 Mich at 26. Among the risks assumed are “variations in terrain.” MCL 408.342(2). Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that [*4] defendant complied with this requirement. Rather, plaintiffs argue that defendant breached a duty not imposed by the statute: to mark the half pipe itself. But Anderson makes clear that when SASA resolves a matter, common-law principles are no longer a consideration. Anderson, 469 Mich at 26-27. By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law. Anderson, 469 Mich at 25-26.

Accordingly, defendant was entitled to summary disposition by application of SASA. In light of this conclusion, we need not consider whether defendant was also entitled to summary disposition under the liability waivers.

Reversed and remanded to the trial court with instructions to enter an order of summary disposition in defendant’s favor. We do not retain jurisdiction. Defendant may tax costs.

/s/ David H. Sawyer

/s/ Henry William Saad

CONCUR BY: HOEKSTRA

CONCUR

Hoekstra, P.J., (concurring).

Although I join with the majority in reversing, I write separately because my reason for reversing differs from that of the majority.

In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26; 664 NW2d 756 (2003), [*5] the Supreme Court concluded that if a hazard inheres in the sport of skiing, it is covered by the Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., unless it is unnecessary or not obvious.

Here, it is undisputed that the half pipe, like the timing booth in Anderson, inheres to the sport of skiing and is a necessary installation in a terrain park. But unlike the timing booth in Anderson, plaintiff, in my opinion, makes an arguable claim that the half pipe was not obvious to persons skiing cross-hill. It appears that this argument persuaded the trial court to deny defendant’s motion for summary judgment.

But even assuming a fact question exists regarding whether the half pipe was not obvious, plaintiff admitted to actual knowledge of the location of the half pipe from having observed it earlier that same day while skiing. When skiing, a plaintiff is required by the SASA to “maintain reasonable control of his speed and course at all times,” MCL 408.342 (emphasis added). I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after [*6] executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

/s/ Joel P. Hoekstra


Oregon Supreme Court finds release signed at ski area is void as a violation of public policy. Less than a week later the lawsuits are being filed in droves.

This is a monumental decision that will affect all recreational activities in Oregon, not just ski areas. A decision that will give injured plaintiffs of any recreational activity the opportunity to void releases for any number or reasons.

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

State: Oregon Supreme Court

Plaintiff: Myles A. Bagley, Al Bagley, and Lauren Bagley

Defendant: Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort

Plaintiff Claims: negligent in the design, construction, maintenance, and inspection of the jump in the terrain park.

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2014

Prior Article written about the Appellate Decision in this Case: Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18

The facts of this case have been copies from Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18.

This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is, in effect, when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.

To determine the age of majority or the age a minor becomes an adult in each state see The age that minors become adults.

The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding, he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days, and his pass was scanned 119 times.

Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.

The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.

The court also brought out in this case, signs posted at lifts terminals which restated the ticket was a release of liability. Oregon is the only court that had held that a lift ticket purchased to ski was a release. See Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942.

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

The court first stated it had not reviewed releases in decades. The court then reviewed the legal importance of contracts.

It is a truism that a contract validly made between competent parties is not to be set aside lightly. (“When two or more persons competent for that purpose, upon a sufficient consideration, voluntarily agree to do or not to do a particular thing which may be lawfully done or omitted, they should be held to the consequences of their bargain.”). The right to contract privately is part of the liberty of citizenship, and an important office of the courts is to enforce contractual rights and obligations. (so stating). As this court has stated, however, “contract rights are [not] absolute; * * * [e]qually fundamental with the private right is that of the public to regulate it in the common interest.”

The only contracts that will not be enforced, according to this decision, are those that are contrary to law, morality or public policy.

It is elementary that public policy requires that * * * contracts [between competent parties], when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts of justice, and it is only when some other overpowering rule of public policy * * * intervenes, rendering such agreement illegal, that it will not be enforced.

The court then looked at what issues surrounding or in a contract will void a contract based on a public policy issue. It is not that a contract may be harsh to one party to the contract. “…[t]he test is the evil tendency of the contract and not its actual injury to the public in a particular instance…” However, the court then did a 180-degree turn and stated that in this case:

Thus, for the sake of convenience–if not doctrinal convergence–we address the parties’ public policy arguments in the context of our analysis of whether, in the particular circumstances of this case, enforcement of the release would be unconscionable.

The court then proceeded to build its argument on why this contract was a violation of public policy. It first divided public policy into two types procedural or substantive.

Procedural unconscionability refers to the conditions of contract formation and focuses on two factors: oppression and surprise.

Oppression exists when there is inequality in bargaining power between the parties, resulting in no real opportunity to negotiate the terms of the contract and the absence of meaningful choice. Surprise involves whether terms were hidden or obscure from the vantage of the party seeking to avoid them.

Generally speaking, factors such as ambiguous contract wording and fine print are the hallmarks of surprise.

In contrast, the existence of gross inequality of bargaining power, a takeit- or-leave-it bargaining stance, and the fact that a contract involves a consumer transaction, rather than a commercial bargain, can be evidence of oppression.

Substantive unconscionability was then defined as how the terms of the contract are viewed.

… generally refers to the terms of the contract, rather than the circumstances of formation, and focuses on whether the substantive terms contravene the public interest or public policy.

Either issue, whether the issues in how the contract was created, procedural unconscionability, or the terms of the agreement itself, substantive unconscionability, can void a contract.

The court then went to review the contract in light of any legislation related to the activity. Although Oregon has a Skier Responsibility Act, the court did not find it was instructive in this case.

The court did find that under Oregon law, it could void a release if the results would be harsh. “Finally, this court has held that another factor for determining whether an anticipatory release may be unenforceable is the possibility of a harsh or inequitable result for the releasing party.”

The court then listed the ways a contract could be voided under Oregon law.

We glean from those decisions that relevant procedural factors in the determination of whether enforcement of an anticipatory release would violate public policy or be unconscionable include whether the release was conspicuous and unambiguous; whether there was a substantial disparity in the parties’ bargaining power; whether the contract was offered on a take-it-or-leave-it basis; and whether the contract involved a consumer transaction.

Relevant substantive considerations include whether enforcement of the release would cause a harsh or inequitable result to befall the releasing party; whether the releasee serves an important public interest or function; and whether the release purported to disclaim liability for more serious misconduct than ordinary negligence.

The court refused to provide details or procedures that would void a contract. Rather the court relied on a “totality of the circumstances” test. This means it provides great leeway for a court to determine if the facts swayed a judge, not whether the facts met any set requirements.

Nothing in our previous decisions suggests that any single factor takes precedence over the others or that the listed factors are exclusive. Rather, they indicate that a determination whether enforcement of an anticipatory release would violate public policy or be unconscionable must be based on the totality of the circumstances of a particular transaction.

The court then compared the ways it had found (created) to void a contract under Oregon law to the present situation.

This was not an agreement between equals. Only one party to the contract-defendant-was a commercial enterprise, and that party exercised its superior bargaining strength by requiring its patrons, including plaintiff, to sign an anticipatory release on a take-it-or-leave-it basis as a condition of using its facilities.

This analysis completely ignored the fact the contract covered recreational activities that most other states have found remove the take it or leave it bargaining issue. The exception being Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2. See Wisconsin decision has left the status of release law in Wisconsin in jeopardy.

The court found because the plaintiff had no opportunity to negotiate the terms or cost then there was an inequality of bargaining power between the plaintiff and the defendant. “Simply put, plaintiff had no meaningful alternative to defendant’s take-it-or-leave-it terms if he wanted to participate in downhill snowboarding.

The court found this alone was not enough to void the release. The court then looked at whether the results of enforcing the contract would be harsh and found this to be true.

As pertinent here, we conclude that the result would be harsh because, accepting as true the allegations in plaintiff’s complaint, plaintiff would not have been injured if defendant had exercised reasonable care in designing, constructing, maintaining, or inspecting the jump on which he was injured. And that harsh result also would be inequitable because defendant, not its patrons, has the expertise and opportunity to foresee and control hazards of its own creation on its premises, and to guard against the negligence of its employees.

This analysis completely ignores the issue of whether or not the plaintiff could have examined the jump or had gone over the jump before. The defendant had introduced evidence that the season pass had been used dozens of times prior to the accident.

The court then ignored the Oregon Skier Responsibility Law and stated that even though the act had reduced the liability of a ski area it had not changed its common law liability for those conditions that are not inherent in the activity.

Skier Responsibility Law provides that “[t]o the extent an injury is caused by an inherent risk of skiing, a skier will not recover against a ski area operator; to the extent an injury is a result of [ski area operator] negligence, comparative negligence applies

The court summed up its analysis to this point stating.

In short, because (1) accepting as true the allegations in plaintiff’s complaint, plaintiff would not have been injured if defendant had exercised reasonable care in designing, constructing, maintaining, or inspecting the jump on which he was injured; and (2) defendant, not its patrons, had the expertise and opportunity–indeed, the common law duty–to foresee and avoid unreasonable risks of its own creation on its business premises, we conclude that the enforcement of the release would cause a harsh and inequitable result, a factor that militates against its enforcement.

The court then looked at whether a ski area served an important public interest or function. The court found it did by adding an exception to the essential public service requirement stating that serving the public was enough.

However, like other places of public accommodation such as inns or public warehouses, defendant’s business premises–including its terrain park–are open to the general public virtually without restriction, and large numbers of skiers and snowboarders regularly avail themselves of its facilities. To be sure, defendants’ business facilities are privately owned, but that characteristic does not overcome a number of legitimate public interests concerning their operation

Because the public was invited to ski, the release violated Oregon Public Policy.

Accordingly, we reject defendant’s argument that the fact that skiing and snowboarding are “non-essential” activities compels enforcement of the release in this case. Instead, we conclude that defendant’s business operation is sufficiently tied to the public interest as to require the performance of its private duties to its patrons

The court then looked at the legal issues in a way I have never heard of before. The court accepted the plaintiff’s argument that the release was intended to prevent claims for negligence as well as for gross negligence, reckless, or intentional conduct. Although the court did not accept the argument in this case, it left the argument open for future cases.

The court summed up its opinion over a page and a half. The fact the release was written broadly caused the court’s concern.

That said, the release is very broad; it applies on its face to a multitude of conditions and risks, many of which (such as riding on a chairlift) leave defendant’s patrons vulnerable to risks of harm of defendant’s creation

However, the entire basis of its analysis was the court did not like the fact this injured plaintiff would not recover.

In the ultimate step of our unconscionability analysis, we consider whether those procedural and substantive considerations outweigh defendant’s interest in enforcing the release at issue here.

So Now What?

This case not only opened up lawsuits against ski areas but turned any recreation provider into a target. In just two weeks since the decision came down several high-dollar lawsuits have been filed in Oregon. See Mt. Hood Meadows snowboarder claims teen slammed into her, sues teen’s parents for $955,000 and Fallen tree causes Portland mountain bike racer to crash, fracture neck, $273,000 suit says.

By stating that any provider was subject to the public policy exception to releases, the court effectively found that anyone injured by a recreation provider could have their releases voided.

If you are Oregon and have a release you may want to put in that the release is only for claims of ordinary negligence. This violates every principal I have espoused over the years, but here the court found that failing to have such a clause may make an argument for voiding a release.

This decision is stretched to reach its decision, and it is written quite vaguely and broadly giving future plaintiff’s dozens of ways of voiding a release. Catastrophic injuries are going to be more likely, based on this analysis, to void a release; however, those are the ones that attract the money.

Oregon ski area ticket prices are going to increase because Oregon ski area insurance is going up.  

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

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