Decision supporting PA ski area when skier skied off the trail supported by the US Court of Appeals for the Third Circuit

The Federal District Court case, Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013 and reviewed in Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing was upheld

Citation: Vu v. Ski Liberty Operating Corp., (the decision is so new, not id numbers have been assigned to it yet.

State: Pennsylvania

Plaintiff: Quan Vu and his spouse May Siew

Defendant: Ski Liberty Operating Corp., doing business as Liberty Mountain Resort; Snow Time, Inc.

Plaintiff Claims: negligent for, among other things, failing to keep the slope free from unsafe conditions, warn Vu of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the large rocks below and alleged loss of consortium

Defendant Defenses: No duty under the Pennsylvania Skier’s Responsibility Act (PSRA)

Holding: For the Defendant upholding the lower court decision

Year: 2019

Summary

A lower Federal District Court held that a skier assumed the risk when he skied off the trail and over a 3′-4′ embankment. The skier appealed and the Third Circuit Court of Appeals upheld the lower court holding the Pennsylvania Skier Responsibility Act created no duty on the part of the ski area.

Facts

On the evening of January 23, 2015, Vu was skiing down a trail at the Liberty Mountain Resort in Pennsylvania. At some point, Vu encountered a snowboarder, who “either cut [him] off or got awfully close” to him. To avoid colliding with the snowboarder, Vu “had a knee-jerk reaction to veer,” which led him toward the edge of the trail. Id. Vu skied over the edge, left the slope, and landed among a pile of rocks. He suffered multiple serious injuries, which he alleges were caused by his skiing over an unmarked, “artificial three to four-foot cliff at the slope’s edge” that was created by “the Defendants’ snowmaking and snow grooming practices.”

Vu’s daughter, who was skiing with him, testified that she did not see Vu ski off of the slope, but she did find him laying off of the trail. She stated that to get to her father, she had to exercise caution due to the height difference between the artificial snow and the natural terrain. She also testified that she had no “difficulty that evening discerning the edge of the trail.”

Dawson Disotelle was also present on the slope and witnessed the incident. He testified that he was snowboarding behind Vu and Vu’s daughter, and he saw that Vu’s “skis went to the left and his body went with [them] and he just went straight off the run.” Thereafter, Disotelle attempted to render assistance to Vu, which required Disotelle to “hop[] down” to where Vu was laying. According to Disotelle, the elevation change from the slope to where Vu landed was “[t]hree or four feet maybe,” and “it wasn’t a challenge to get down there.” Like Vu’s daughter, Disotelle testified that he was able to “easily” distinguish the skiable trail from off trail.

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

The appellate court simply looked at the Pennsylvania Skiers Responsibility Act (PSRA) and found the ski area had no duty to the Plaintiff Vu.

The PSRA establishes a “no-duty” rule for skiing injuries, relieving ski resorts of the “duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport.” The no-duty rule applies in this context when: (1) the plaintiff was “engaged in the sport of downhill skiing at the time of her injury”; and (2) the risk of the injury at issue “is one of the ‘inherent risks’ of downhill skiing.” When both prongs are met, summary judgment is warranted in favor of the ski resort “because, as a matter of law, [the plaintiff] cannot recover for her injuries.”

The court did have to look at case law and commented on the fact the Pennsylvania act did not identify risks that were inherent in skiing like most other skier safety acts did. “The PSRA “is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing….”

The court identified several cases that held that “…snow and ice, elevation, contour, speed and weather conditions, and falling from a ski lift…” where inherent to skiing.

Nor does the PRSA require proof that a skier assumed the risk, only that the injury “arose from a “general risk” inherent to the sport….” Consequently, the court found the risk of skiing off the edge of the trail over a three to four feet drop was inherent to skiing.

Not only does this risk appear to fall under the umbrella of elevation or contour (or both), which have been identified by Pennsylvania courts as inherent risks, but also other courts have recognized the more general risk of skiing off a trail as inherent to downhill skiing,

The court then added as support for its finding that what the Plaintiff Vu encountered was an inherent risk but that Vu had been skiing for twenty years and was skiing black diamond runs or the most difficult slopes.

So Now What?

The Pennsylvania Skiers Responsibility Act is the weakest of most of the ski area statutes because it does not define what the inherent risks of skiing are. However, the courts in Pennsylvania have done a fairly good job of determining, based on case law and statutes from other states what are the inherent risks of skiing.

However, because the inherent risks are not defined, the plaintiffs are going to continue to test the issues because there is a chance they can win.

What do you think? Leave a comment.

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Vu v. Ski Liberty Operating Corp.,

Vu v. Ski Liberty Operating Corp.,

Quan Vu; May Siew, Appellants

v.

Ski Liberty Operating Corp., doing business as Liberty Mountain Resort; Snow Time, Inc.

No. 18-1769

United States Court of Appeals, Third Circuit

February 12, 2019

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 22, 2019

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:16-cv-02170) District Judge: Hon. John E. Jones, III

Before: CHAGARES and BIBAS, Circuit Judges, and SÁNCHEZ, Chief District Judge [+].

OPINION [*]

CHAGARES, CIRCUIT JUDGE.

Appellants Quan Vu and his spouse, May Siew (collectively, “the plaintiffs”), brought this action against the defendants, Ski Liberty Operating Corporation, d/b/a Liberty Mountain Resort and Snow Time, Inc., for damages relating to injuries Vu suffered while skiing at Liberty Mountain Resort. The defendants successfully moved for summary judgment, and the plaintiffs now appeal. Because we conclude that the plaintiffs’ cause of action is barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. Cons. Stat. § 7102(c) (“PSRA”), we will affirm.

I.

We write principally for the parties and therefore recite only those facts necessary to our decision. On the evening of January 23, 2015, Vu was skiing down a trail at the Liberty Mountain Resort in Pennsylvania. At some point, Vu encountered a snowboarder, who “either cut [him] off or got awfully close” to him. Appendix (“App.”) 314. To avoid colliding with the snowboarder, Vu “had a knee-jerk reaction to veer,” which led him toward the edge of the trail. Id. Vu skied over the edge, left the slope, and landed among a pile of rocks. He suffered multiple serious injuries, which he alleges were caused by his skiing over an unmarked, “artificial three to four-foot cliff at the slope’s edge” that was created by “the Defendants’ snowmaking and snow grooming practices.” Vu Br. 4.

Vu’s daughter, who was skiing with him, testified that she did not see Vu ski off of the slope, but she did find him laying off of the trail. She stated that to get to her father, she had to exercise caution due to the height difference between the artificial snow and the natural terrain. She also testified that she had no “difficulty that evening discerning the edge of the trail.” App. 74-75.

Dawson Disotelle was also present on the slope and witnessed the incident. He testified that he was snowboarding behind Vu and Vu’s daughter, and he saw that Vu’s “skis went to the left and his body went with [them] and he just went straight off the run.” App. 124-25. Thereafter, Disotelle attempted to render assistance to Vu, which required Disotelle to “hop[] down” to where Vu was laying. App. 143. According to Disotelle, the elevation change from the slope to where Vu landed was “[t]hree or four feet maybe,” and “it wasn’t a challenge to get down there.” Id. Like Vu’s daughter, Disotelle testified that he was able to “easily” distinguish the skiable trail from off trail. App. 129.

The plaintiffs filed a two-count complaint in October 2016. The first count alleged that the defendants were negligent for, among other things, failing to keep the slope free from unsafe conditions, warn Vu of the dangerous condition, and erect a fence or boundary marker to prevent skiers “from skiing over the edge and into the large rocks below.” App. 902-03. In the second count, Siew alleged loss of consortium.

The defendants moved for summary judgment, arguing in part that the plaintiffs’ action was barred because “skiing off trail and colliding into rocks . . . is an inherent risk” of downhill skiing. App. 784. The District Court agreed and granted the motion. The plaintiffs now appeal.

II.

The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the grant of summary judgment, Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 268 (3d Cir. 2008), and must ascertain whether the movant has “show[n] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” Fed.R.Civ.P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In conducting this analysis, we “view the facts in the light most favorable to the non-moving party.” Bjorgung, 550 F.3d at 268.

III.

In this action based on diversity jurisdiction, we apply Pennsylvania law. See Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000). The statute upon which this case turns is the PSRA, which acknowledges that “there are inherent risks in the sport of downhill skiing,” 42 Pa. Cons. Stat. § 7102(c)(1), and, for that reason, “preserves assumption of risk as a defense to negligence suits stemming from downhill skiing injuries,” Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1007 (3d Cir. 1983).

The PSRA establishes a “no-duty” rule for skiing injuries, relieving ski resorts of the “duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010). The no-duty rule applies in this context when: (1) the plaintiff was “engaged in the sport of downhill skiing at the time of her injury”; and (2) the risk of the injury at issue “is one of the ‘inherent risks’ of downhill skiing.” Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). When both prongs are met, summary judgment is warranted in favor of the ski resort “because, as a matter of law, [the plaintiff] cannot recover for her injuries.” Id.

The PSRA “is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing,” Chepkevich, 2 A.3d at 1188 n.15, so we turn to caselaw for guidance. The Pennsylvania Supreme Court has identified collisions with other skiers, “snow and ice, elevation, contour, speed and weather conditions,” Hughes, 762 A.2d at 344, and falling from a ski lift, Chepkevich, 2 A.3d at 1188, as inherent risks. It has also instructed other courts to adopt “a practical and logical interpretation of what risks are inherent to the sport,” id. at 1187-88, and explained that invocation of the PSRA does not require proof that the injured skier assumed the “specific risk” that caused injury – only that the injury arose from a “general risk” inherent to the sport, id. at 1188.

Applying this guidance, we conclude that the plaintiffs’ action is barred by the PSRA. The plaintiffs do not dispute that the first prong – “engaged in the sport of downhill skiing,” Hughes, 762 A.2d at 344 – is met. Only the “inherent risk” prong is at issue on appeal, and it is also satisfied.

The risk identified by the plaintiffs as causing Vu’s injuries is skiing off of a trail edge that was three to four feet above the natural terrain, which we conclude is inherent to the sport of downhill skiing.[1] Cf. Smith-Wille v. Ski Shawnee, Inc., 35 Pa. D. & C. 5th 473, 475, 484 (Pa. Ct. Com. Pl. 2014) (holding, where a skier was injured after losing control on an icy slope and crashing into a fence running along the edge of a ski trail, that “[t]he edge of the ski slope . . . [is an] inherent risk[] of skiing,” as is “[s]triking a protective fence designating and protecting skiers from the edge of the trail”). Not only does this risk appear to fall under the umbrella of elevation or contour (or both), which have been identified by Pennsylvania courts as inherent risks, Hughes, 762 A.2d at 344, but also other courts have recognized the more general risk of skiing off a trail as inherent to downhill skiing, see Nutbrown v. Mount Cranmore, Inc., 671 A.2d 548, 553 (N.H. 1996) (holding that when “the chief cause of [the plaintiff’s] injuries” was the “quintessential risk . . . that a skier might lose control and ski off the trail,” he “may not recover against a ski area operator for resulting injuries”); cf. Bjorgung, 550 F.3d at 265, 269 (holding that the PSRA barred a competitive skier’s cause of action where he was injured after he skied into the woods off of a trail because the failure to set safety netting or “fix a race course in a way that minimizes the potential for the competitors to lose control” were inherent risks of ski racing).

Given “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself,” the District Court correctly concluded that skiing over a slope edge and leaving the trail is an inherent risk of downhill skiing from which the defendants had no duty to protect Vu. Chepkevich, 2 A.3d at 1187. That is particularly true because Vu – who had been skiing for more than twenty years as of January 2015 and could ski black diamond, or the “most difficult,” slopes, App. 908, 1025 – acknowledges “that downhill skiing is a dangerous, risk sport” and “that if he skied off trail, he could encounter trees[ and] rocks,” App. 909, 911, 1025, 1027, and because Vu’s daughter and Disotelle both testified that they had no trouble discerning the slope edge, and on trail from off trail, on January 23, 2015.

The plaintiffs unsuccessfully make four related arguments, which we briefly address. To begin, they make much of the fact that the elevation difference between the slope edge and the natural terrain “was not a naturally occurring condition” but rather the result of the defendants’ grooming or making artificial snow. Vu Br. 5. This distinction is of no import for two reasons. First, the PSRA is concerned with the general, not the specific, risk that allegedly caused injury. Chepkevich, 2 A.3d at 1188. The general risk at issue is skiing over a slope edge (natural or not) and encountering off-trail conditions. Second, the PSRA bars recovery not only for injuries due to naturally occurring conditions, but also for injuries due to any “common, frequent, and expected” risk. Id. at 1186. Indeed, it has been invoked to preclude actions relating to PVC piping on a fence, Smith-Wille, 35 Pa. D. & C. 5th at 484, snowmaking equipment, Glasser v. Seven Springs Mountain Resort, 6 Pa. D. & C. 5th 25, 29 (Pa. Ct. Com. Pl. 2008), aff’d, 986 A.2d 1290 (Pa. Super. Ct. 2009), a ski lift, Chepkevich, 2 A.3d at 1188, and “wheel ruts on a ski slope created by an ATV,” Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 980-81 (Pa. Super. Ct. 2018). Although none of those causes of injury are naturally occurring conditions, they were all found to be inherent risks of downhill skiing.

Second, the plaintiffs contend that the “unguarded existence” of this slope made of artificial snow “is a deviation from the standard of care in the skiing industry,” apparently attempting to invoke the exception to the no-duty rule explained in Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978). Vu Br. 14. Pursuant to Jones, although sports facilities and amusement parks have no duty to protect against inherent risks, a plaintiff may recover from one such establishment for injury caused by an inherent risk if she “introduces adequate evidence that the amusement facility . . . deviated in some relevant respect from established custom.” Jones, 394 A.2d at 550-51. The plaintiffs have not provided support for this assertion beyond their expert’s report, [2] which does not clearly identify any industry standard from which the defendants are supposed to have deviated, but instead merely asserts that they violated generally accepted practices within the industry.[3]

Third, the plaintiffs seem to assert that the District Court improperly resolved a disputed issue of material fact in the defendants’ favor because reasonable jurors could disagree whether a slope edge with a three to four-foot elevation difference is an inherent risk. We reject this argument because the record citation provided does not support the plaintiffs’ contention, and the cases upon which the plaintiffs rely are inapposite, one involving the application of Vermont law and the other (predating Hughes and Chepkevich) applying a no-duty standard different from the standard espoused in those two cases.

Fourth, the plaintiffs also contend that the legislative intent behind the PSRA could not have been to encourage “the creation of artificial, Defendant-made ‘cliffs’ along . . . trail edges.” Vu Br. 6. For all of the reasons already discussed, we reject this argument as well.

In sum, we conclude that the plaintiffs’ injuries were caused by risks inherent to downhill skiing, satisfying the second prong of the Hughes test. Because it is undisputed that Vu was “engaged in the sport of downhill skiing at the time of [his] injur[ies],” the first prong is also met, such that summary judgment in favor of the defendants was properly granted. Hughes, 762 A.2d at 344.

IV.

For the aforementioned reasons, we will affirm the judgment of the District Court.

Notes:

[+] The Honorable Juan Sánchez, Chief United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

[*]This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

[1] To the extent that the plaintiffs allege that Vu’s injuries resulted from his attempt to avoid a collision with a snowboarder, we conclude that that risk is also inherent to downhill skiing. See Hughes, 762 A.2d at 345.

[2] The defendants argue that the expert report is unsworn and therefore may not be considered on a motion for summary judgment. Given our conclusion, we need not address this contention.

[3] The plaintiffs also point to evidence of “other skiers being injured at [Liberty Mountain Resort] in the exact same manner” on other slopes during previous seasons. Vu Br. 11-12. Such evidence does not identify any industry custom or Liberty Mountain Resort’s deviation from it.


Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Brian Moore, as Personal Representative on behalf of the Estate of Bernard P. Rice, deceased, Plaintiff, vs. North America Sports, Inc., et al., Defendants.

CASE NO. 5:08cv343/RS/MD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PANAMA CITY DIVISION

2009 U.S. Dist. LEXIS 134557

June 26, 2009, Decided

June 26, 2009, Filed

CORE TERMS: summary judgment, decedent, affirmative defenses, online, registration, fault, box, tortfeasor, choice of law, necessary to complete, sanctioning, registered, printout, Black’s Law Dictionary, last act, material fact, nonmoving party, sole cause, concurrent tortfeasors, health care providers, undisputed, off-campus, designated, causation, lawsuit, movant’s, waived, willful, usage, medical attention

COUNSEL: [*1] For BRIAN MOORE, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASED, Plaintiff: DIANA SANTA MARIA, LEAD ATTORNEY, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASE, FORT LAUDERDALE, FL; DOROTHY CLAY SIMS, LEAD ATTORNEY, LAW OFFICE OF DOROTHY CLAY SIMS ESQ, OCALA, FL; JOEL S PERWIN, LEAD ATTORNEY, JOEL S PERWIN PA – MIAMI FL, MIAMI, FL; JOHN N BOGGS, BOGGS & FISHEL – PANAMA CITY FL, PANAMA CITY, FL.

For NORTH AMERICA SPORTS INC, doing business as WORLD TRIATHLON CORPORATION, doing business as IRONMAN TRIATHLON, doing business as FORD IRONMAN FLORIDA, formerly known as IRONMAN NORTH AMERICA, USA TRIATHLON, A FOREIGN COMPANY, Defendants: JASON BERNARD ONACKI, LEAD ATTORNEY, COLE SCOTT & KISSANE PA – PENSACOLA FL, PENSACOLA, FL; LARRY ARTHUR MATTHEWS, LEAD ATTORNEY, MATTHEWS & HIGGINS LLC, PENSACOLA, FL; SHANE MICHAEL DEAN, DEAN & CAMPER PA – PENSACOLA FL, PENSACOLA, FL.

JUDGES: RICHARD SMOAK, UNITED STATES DISTRICT JUDGE.

OPINION BY: RICHARD SMOAK

OPINION

Order

Before me are Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46); Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79); Plaintiff’s Motion for [*2] Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86); Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125); and Plaintiff’s Motion for Leave to File Reply (Doc. 144).

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant’s evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere ‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice; there must be enough of a showing that the [*3] jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251, 106 S. Ct. at 2512).

II. FACTS

Decedent, Bernard Rice, registered online in Montana, and participated in the 2006 Ford Ironman Florida Triathlon held in Panama City Beach, Florida on November 4, 2006. Defendant contends that Rice signed numerous waivers to participate in the race; Plaintiff denies that Rice signed any waivers. Decedent experienced distress in the swim course approximately half-way into the second 1.2 mile lap of the 2.4 mile swim course. He received medical attention, but the timing and nature of medical attention are in dispute. Rice died on November 7, 2006.

III. DUTY OWED TO PLAINTIFF

a. Assumption of Risk

Defendants contend that Rice voluntarily assumed the risk of participating in the 2006 Ford Ironman Florida Triathlon. “When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.Kuehner v. Green, 436 So. 2d 78, 80 (Fla. 1983). However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible. Id; O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. Dist. Ct. App. 1982). Therefore, summary judgment is not appropriate on this issue.

b. Sanctioning Body

Defendant [*4] USA Triathlon argues that it had no duty as the sanctioning organization of the 2006 Ford Ironman Florida Triathlon. Defendants cite authority from Illinois, Massachusetts, and New York. In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event. See Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86 (Fla. 200) (university had duty to graduate student placed in specific off-campus internship which it knew to be unreasonably dangerous); D’Attilio v. Fifth Avenue Business Ass’n, Inc., 710 So.2d 117 (Fla. Dist. Ct. App. 1998) (the party with control over land owes a duty, jury question whether defendant that coordinated and sponsored a fair on city streets, where city controlled amount of law enforcement, had a duty); Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (Principal and teacher had a duty to injured student because had the authority to control activities of school club even at a meeting held off-campus); Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999) (camp sponsor could be found negligent for falling to tell lifeguard camper suffered from seizures). It is a question of fact for the jury whether Defendant USA Triathlon had sufficient control over the 2006 Ford Ironman Florida Triathlon because of its sanction of the event to have a duty to the participants. Summary judgment is not appropriate.

IV. WAIVERS

Defendant moves for summary judgment based on [*5] the waivers decedent allegedly executed. Plaintiff moves for summary judgment on Defendants’ third and fourth affirmative defenses which read as follows.

THIRD AFFIRMATIVE DEFENSE

53. On November 6, 2005, and prior to Plaintiff’s claim in this action accruing, Decedent waived any and all claims against USAT and NA Sports. A copy of the waiver is attached as Exhibit “A.” Decedent also entered two additional waivers during race registration. Unsigned copies of the waivers entered by Decedent are attached as Exhibits “B” (although designated as a 2007 waiver, it is otherwise the same as the 2006 waiver executed by Decedent) and “C.” By entering these waivers, Decedent waived the Plaintiff’s ability to bring the claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

FOURTH AFFIRMATIVE DEFENSE

54. On November 6, 2005, and prior to accrual of Plaintiff’s claims in this action, Decedent entered a release of any and all claims against USAT and NA Sports relating to the 2006 Ford Ironman Triathlon. A copy of the release is attached as Exhibit “A.” Decedent also entered two additional releases during race registration. Unsigned copies of the releases entered by Decedent are attached as Exhibits “B” (although [*6] designated as a 2007 release, it is otherwise the same as the 2006 release executed by Decedent) and “C.” By entering these releases, Decedent has precluded Plaintiff’s claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

a. Choice of Law

First, the choice of law governing the waiver must be determined, because the applicable law might not support enforcement of the waiver, which would make the waivers irrelevant. As for the appropriate contract law to apply, the parties agree that Florida choice of law analysis is applicable.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941).
Both parties also agree that under Florida law, “lex loci contractus” provides that the laws of the jurisdiction where the contract was executed govern interpretation of the substantive issues regarding the contract. Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d 1089, 1091 (11th Cir. 2004). The determination of where a contract was executed is fact-intensive and requires a determination of “where the last act necessary to complete the contract [was] done.Id. at 1092-93 (quoting Pastor v. Union Cent. Life Ins. Co., 184 F.Supp.2d 1301, 1305 (S.D. Fla. 2002)). The last act necessary to complete a contract is the offeree’s communication of acceptance to the offeror. Id. (citing Buell v. State, 704 So.2d 552, 555 (Fla. Dist. Ct. App. 1997)). Here, it is undisputed that the last act necessary to complete the contract occurred in Montana.

Plaintiff points to Montana law, which states, “All contracts [*7] which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law. See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1295 (5th Cir. 1972); See Shapiro v. Associated Intern. Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990).

Defendants point to Montana law, which states, “A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” Mont. Code Ann. § 28-3-102 (2007). The race occurred in Florida; therefore, Florida law applies. In Florida, waivers or exculpatory clauses, although not looked upon with favor, are valid and enforceable if the intent to relieve a party of its own negligence is clear and unequivocal. Banfield v. Louis, 589 So.2d 441, 444-45 (Fla. Dist. Ct. App. 1991) (citing L. Luria & Son, Inc. v. Alarmtec Int’l Corp., 384 So.2d 947 (Fla. Dist. Ct. App. 1980); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. Dist. Ct. App. 1982); Middleton v. Lomaskin, 266 So.2d 678 (Fla. Dist. Ct. App. 1972)).

b. Online Waivers

On November 6, 2005, Rice registered online for the 2006 Ford Ironman Florida Triathlon, which includes two waivers. In order to properly execute both waivers, the participant had [*8] to check two separate boxes. While both sides agree that Rice registered himself online, it is in dispute whether the boxes were checked. The first waiver only applies to the active.com website, which advertises various races and allows participants to fill out online registrations. However, the website has nothing to do with the actual race and is not a party to this suit. The second online waiver applies to Defendants. Defendants contend that the online registration could not be completed unless the boxes were checked, but Plaintiff contends that the printout from the online registration provided by Defendants does not contain any checked boxes (or any boxes). Whether the online wavier was properly executed is clearly in dispute.

Defendants provide a printout showing an electronic signature. However, in order to properly execute the waiver, the waivers state that the participant must check the box. Defendants fail to provide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been [*9] warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

c. Onsite Registration

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

V. BAY MEDICAL

Plaintiff moves for dismissal, or summary judgment, on Defendants’ sixth affirmative defense, which alleges that Bay Medical Emergency Medical Services was “the sole cause or contributing cause of the injuries and harm alleged by Plaintiff.” Plaintiff repeats the exact same argument in its Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125). Plaintiff argues that this is not an affirmative defense, but rather is a traditional basis for denying causation, on the ground that another entity was solely at fault. An affirmative [*10] defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true. Black’s Law Dictionary (8th ed. 2004). Defendants contend that Florida Statute § 768.81(3) permits a defendant to apportion fault to a non-party whose negligence contributed to the plaintiff’s injury or death.

The Florida Supreme Court held that “apportion[ing] the loss between initial and subsequent rather than joint or concurrent tortfeasors…cannot be done.” Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla. 1977). Concurrent tortfeasors are two or more tortfeasors whose simultaneous actions cause injury to a third party. Black’s Law Dictionary (8th ed. 2004). Here, Defendants and Bay Medical Emergency Medical Services are not concurrent tortfeasors, because their actions could not have occurred simultaneously. Florida law clearly states:

“[O]riginal tortfeasor is liable to victim not only for original injuries received as result of initial tort, but also for additional or aggravated injuries resulting from subsequent negligence of health care providers, even though original tortfeasor and subsequently negligent health care providers are independent tortfeasors. Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999).

Therefore, Defendants’ sixth affirmative defense is dismissed. [*11] Defendants are not entitled to include Bay Medical Emergency Medical Services on the verdict form for the jury’s consideration, but Defendants are permitted to argue that Bay Medical Emergency Medical Services were the sole cause of the injuries and harm alleged by Plaintiff as it relates to causation.

VI. CONCLUSION

IT IS ORDERED:

1. Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46) is denied.

2. Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79) is denied.

3. Plaintiff’s Motion for Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86) is granted.

4. Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125) is denied as moot.

5. Plaintiff’s Motion for Leave to File Reply (Doc. 144) is denied as moot.

ORDERED on June 26, 2009.

/s/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE


RELEASE (Waiver) CHECKLIST: What MUST your Release contain to work

If you are getting ready for your summer recreation business it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure your release is doing more than wasting paper.

Not all of these clauses mentioned in the checklist may be needed. However, some of them are critical and they may all be modified based on your activity, program, employees, and ability to undertake the risks. Some changes are always needed based on your activities, your guests and the state or local you are working in.

I’ve divided this checklist into three major parts:

  • Required for your Release to be Valid: What is absolutely required
  • Needed: What you should have for your release to be valid in most states
  • What Your Release Cannot Have: What you should never have in your document

There are some subsections also that are fairly self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.

Required for your Release to be Valid

Contract: A release is a contract. The legal requirements required in your state for your electronic or piece of paper release to be a contract.

Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document? Courts want to see that the guest knew they were giving up some legal rights.

Parties: You have to identify who is to be protected by the release and who the release applies too. That means the correct legal names as well as any business name.

Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against. This is any area that is growing in release law.

Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk. Assumption of the Risk is the second defense after your release in stopping a lawsuit.

Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence? The required language and how it must be explained is getting more specific in all states and yet is different in most states.

Plain Language: Is the release written so that it can be understood? Is it written in plain English?

Venue: Does your release have a Venue Clause?

Jurisdiction: Does your release have a Jurisdiction Clause?

Signatures: Does your release have a place for the signor to date and sign the release. For a contract to be valid it must have a signature, or if electronic acknowledgment.

Continuing Duty to Inform: Information to complete the continuing duty to inform for manufacturers

 

Items that may be Needed Dependent upon the Purpose of the Release

Parental Release: Signature of Parent or Guardian AND correct legal language signing away a minor’s right to sue.

Statement the Signor has conveyed the necessary information to minor child

Statement the Signor will continue to convey necessary information to a minor child

Reference to any Required Statute

Signor has viewed the Website

Signor has viewed the Videos

Signor has read the additional information

Notice the Release is a Legal Document:

Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?

Opening/Introduction: Does your release have an opening or introduction explaining its purpose

Assumption of Risk Language

Minor Injuries Noticed

Major Injuries Noticed

Death

Mental Trauma

Signor is Capable of Assuming Risks

Risks identified that are not normally Not Associated with Activity

Drug & Alcohol Statement

Company Right to Eject/Refuse

Signor is in Good Physical Condition

Able to Undertake the activity

Good Mental Condition

Release Protects Against

Lost Personal Property

Lost Money

Lost Time

Loss of Life

Medical Bills

Injuries

Indemnification Clause

First party costs

Third party costs

Severance Clause

Enforceability of the Release Post Activity

 

Language Dependent on How the Release is to be Used

Product Liability Language

Release of Confidential Medical Information

Demo Language

Rental Agreement Clause

SAR & Medical Issues

Permission to release medical information

Medical Evacuation

Medical Release

Medical Transportation

Waiver of medical confidentiality

Waiver of HIV status

Alternative Resolution

Arbitration

Mediation

Items I include in the releases I write

How Release is to be interpreted

Statement as to Insurance

Signor has Adequate Insurance

Incidental issues covered

Signor has Previous Experience

Signor Read and Understood the Contract

Agreement that the document has been read

Agreement that the signor agrees to the terms

What Your Release Cannot Have

Places to Initial: This just requires more effort on your staff to check and is not legally required.

Small Print: If a judge can’t read it, then it does not exist.

Attempting to Hide your Release: You attempt to hide your release; the judge will act like he or she never found it. The below are all examples of attempting to hide a release.

No heading or indication of the legal nature

Release Hidden within another document

Important sections with no heading or not bolded: No hiding your release

Multiple pages that are not associated with each other: splitting up your release is hiding it.

No indication or notice of the rights the signor is giving up: Some day the statement I did not understand it will resonate with a judge. This prevents that.

Most Importantly, had your Release Updated Recently

Has your release been reviewed by an attorney in the past year or do you work with an attorney that updates you on changes you need to make to your release? The law concerning releases is changing constantly, more now than ever before. In the past two years I’ve made a dozen tweaks to how I write a release based on those legal changes. If your release has not been updated, you may no longer have a release.

Remember: Nothing in your marketing program invalidates your release. Does your marketing not create liability not covered in your release? Is your marketing directed to the correct people that your release was written for?


Poorly written jurisdiction and venue clause places the defendant in jam when the defendant counter claims for attorney fees and costs.

This case was based on a zip-line accident. The release signed by the plaintiff had a forum selection clause, also known as a jurisdiction and venture clause. However, the clause was limited way so that when the defendant brought a counterclaim for attorney fees, it negated the forum selection clause.

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

State: Massachusetts, United States District Court for the District of Massachusetts

Plaintiff: Josephine Pittman

Defendant: Zoar Outdoor Adventure Resort, Inc.

Plaintiff Claims: gross negligence and fraudulent inducement concerning a participant agreement and waiver of liability

Defendant Defenses: Release

Holding: Basically, for the Plaintiff

Year: 2017

Summary

This case was based on a zip line accident at the defendant’s location. The plaintiff filed the case in state court in Massachusetts. The defendant then removed the case to Federal District Court because the parties were from two different states.

After removal, the defendant filed a counterclaim for fees and costs as per the release. The plaintiff filed a motion to dismiss the counter claim because it was filed in the wrong court. Meaning the jurisdiction and venue clause was written in such a way it only applied to the complaint and not the counterclaim.

Facts

The facts concerning the actual accident are nowhere in the decision. This decision is based solely on the issues of jurisdiction and venue.

This opinion is based upon a motion to dismiss filed by the plaintiff, to dismiss the counter claim of the defendant for attorney fees and costs for filing the complaint to begin with.

No decision on the facts was made as of the writing of this decision.

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

The court did a thorough analysis of forum selection clauses in its review of the issues.

In that jurisdiction, forum selection clauses, also known as jurisdiction and venue clauses, are valid and usually upheld. “Forum selection clauses “‘are prima facie valid and should be enforced.'”

There are two issues the court must review to determine if the forum selection clause should be followed.

Before giving effect to a forum selection clause, a court must address certain threshold is-sues, including whether: (1) the clause is mandatory or permissive; and (2) the clause governs the claims allegedly subject to it.

There are two types of forum selection clauses, mandatory and permissive. Permissive forum selection clauses allow the parties to change the jurisdiction and venue. Mandatory clauses require the court to follow the contract and change the venue and apply the jurisdiction identified in the forum selection clause.

“‘Permissive forum selection clauses, often described as “consent to jurisdiction” clauses, authorize jurisdiction and venue in a designated forum, but do not prohibit litigation elsewhere. . . . In contrast, mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum.'”

Not only is the language in the clause used to determine if it is permissive or mandatory, but also if the forum selection clause refers to a venue. Mandatory forum selection clauses include a required venue.

The next part, whether the clause governs the claims allegedly subject to the clause was the major issue. Consequently, the language of the clause was the difference. The clause stated: “”[i]n the event [Plaintiff] file[s] a lawsuit against Zoar, [Plaintiff] agree[s]” to the venue specified in paragraph 6 of the Participant Agreement

The court interpreted the clause to only apply to the lawsuit brought by the plaintiff, as the clause states. The court found the forum selection clause did not apply to the counterclaim filed by the defendant against the plaintiff.

Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement.

However, here is where the decision starts to twist, and the defendant is saved, but only saved by accident.

The plaintiff in filing their motion to dismiss the counterclaim did not also move to change the venue or send the case back to state court. The plaintiff’s claim was going to be litigated in Federal District court where it has been moved.

The court implies if the plaintiff had moved to dismiss or change venue the court might have been inclined to do so. As it was, the forum selection clause only applied to the plaintiff’s claims against the defendant. The court claim was not subject to the clause.

Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement.

However, since the majority of the lawsuit would be based on the plaintiff’s complaint, it would be jurisdictionally economical to keep both cases together. Furthermore, the plaintiff claimed in her defense to the release that she was fraudulently induced to sign the release. If she prevailed on that claim, the forum selection clause would not apply because the contract, the release would not be valid.

If she succeeds in meeting her burden of proof on this point, she will not be bound by the terms of the Participant Agreement, which is the sole basis for Defendant’s counterclaim for fees and costs. Thus, Plaintiff’s claims and Defendant’s counterclaim “involve a common nucleus of operative fact [and] all claims should be adjudicated together in this court.

So, until the trial is over on the plaintiff’s complaint and the validity of the plaintiff’s defense to the release, the motion to change the venue because the forum selection, clause did not apply to the country claim was denied.

The court dismissed the plaintiff’s motion to dismiss the defendant’s counterclaim.

So Now What?

Here again, not understanding the breath of a lawsuit when writing a release almost cost the defendant. Judicial economy, not wasting the court’s time and money or either of the parties’ time and money is what saved the day.

If you need your release written properly to cover the issues, you have, the people you market too and the activities you offer, please contact me.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

    

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


I see franchises or businesses with multiple locations using the same release at all locations. You may be losing out on an opportunity, worse setting yourself up to lose 90% of the time.

If one of the states you have a location has better laws supporting the use of a release than your home state, change the jurisdiction and venture clause to that state. On top of getting better release law you’ll be less likely to have a jurisdiction and venue fight. If your jurisdiction and venue clause have no relationship to the defendant, the accident or location, you are probably going to have one anyway.

Summary

Jurisdiction and venue clauses are important in a release. Plaintiff’s are working harder at voiding the jurisdiction and venue clause in releases when they have little or no real relationship with where the accident happened.

If you are writing releases for a business with multiple locations, you might look at the jurisdiction and venue clause in each location in relation to the law of the location and the chances the plaintiff will be successful in his or her attempt to void the jurisdiction and venue clause.

Do Something

I argue, plead and write a lot about jurisdiction and venue clauses. They are the second most important clause in a release after the negligence clause. (See Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases.) A venue clause states where any lawsuit is going to be held, and the jurisdiction identifies the law to be applied. These sections or clauses have to have a relation to the location of the accident. (See Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.)

At the same time, not all states support releases the same way. Several states do not allow the use of releases. (See States that do not Support the Use of a Release.) Some states allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) And every state treats releases differently. Some making it much harder to write a release correctly then others.

On top of that you want to create a barrier, if possible, to a lot of litigation by making a lawsuit difficult for the plaintiff. Making the plaintiff find an attorney and litigate in a state where they do not live makes filing a lawsuit much more difficult. Many plaintiffs will spend years trying to sue in their own state. In Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569; 2007 Tex. LEXIS 188; 50 Tex. Sup. J. 498, the plaintiff’s filed a lawsuit in Texas in 2001 and six years later the Texas Supreme Court dismissed it and sent it to Arizona where the trip occurred, and the accident happened.

Jurisdiction and venture clauses are critically important in a good release.

At the same time, cookie-cutter law is not good, even in some releases. In reviewing the reports of a fatality, the other day, I found the business release on line. The release had a jurisdiction and venue clause which sent the lawsuit back to California where the company office was. The fatality occurred in Colorado. Colorado and California law on releases is similar, both are supportive of releases and both allow a parent to sign away a minor’s right to sue.

The company had more than seventy facilities in North America, including several in states where releases are void. The home office is based in California, although that took some work to find, with a Utah area code for a phone number. On a hunch, I checked with the Utah Secretary of State and found several companies and corporations with the same name. Guessing, either the business started in Utah and moved to California or the business is based in Utah and using an office in California for the basis for jurisdiction and venue in its release.

If the latter is the case, the lawsuit, even with the release, it would be easy to bring suit in Utah and argue the lawsuit should be there.

Worse, the operations are franchised from a Utah or California home office, and the business is owned by a different group of entities or people within each state. Colorado has several companies with the name. Alternatively, every time the company opens a location it creates an LLC for each location.

Each of these creates the possibility of a good argument for voiding the jurisdiction and venue clause in the agreement. There is a better relationship between the parties, plaintiff and defendant, and more reasons to sue where the accident happened.

Either way, as you can see there are numerous ways to argue, successfully or not that the jurisdiction and venue clause should be ignored in a specific case.

What does this lead too? If the plaintiff’s attorney does a little investigation, they can start and make a good argument that the jurisdiction and venue clause should be in a different location, then where it says. Those arguments would be:

Whatever reason you need to write the jurisdiction and venue clause in a release, now days it has to have a greater relationship with the accident location because it will come under greater scrutiny that it did a few years ago.

Blanket cookie cutter releases will not work in the future. Plaintiffs have determined new ways to force possible defendants to come to their location to defend a lawsuit.

Make sure you understand the law of the state where you think you want the lawsuit or the law of the state where the lawsuit could be and pick the one with the greatest chance of success based on the law concerning releases and the issues of jurisdiction and venue.

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

 

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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www.recreation-law.com

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

#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,



Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

Josephine Pittman, Plaintiff, v. Zoar Outdoor Adventure Resort, Inc., Defendant.

Civil Action No. 16-30182-MGM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2017 U.S. Dist. LEXIS 107839

June 9, 2017, Decided

June 9, 2017, Filed

SUBSEQUENT HISTORY: Adopted by, Motion denied by Pittman v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 106873 (D. Mass., July 11, 2017)

COUNSEL: [*1] For Josephine Pittman, Plaintiff, Counter Defendant: Timothy L. O’Keefe, LEAD ATTORNEY, Brittani K. Morgan, Kenny, O’Keefe & Usseglio, P.C., Hartford, CT; Timothy P. Wickstrom, Wickstrom Morse, LLP, Whitinsville, MA.

For Zoar Outdoor Adventure Resort, Inc., Defendant, Counter Claimant: Thomas B. Farrey, III, LEAD ATTORNEY, Burns & Farrey, Worcester, MA; Michael W. Garland, Burns & Farrey, P.C., Worcester, MA.

For Zoar Outdoor Adventure Resort, Inc., Counter Claimant: Thomas B. Farrey, III, LEAD ATTORNEY, Burns & Farrey, Worcester, MA.

For Josephine Pittman, Counter Defendant: Timothy L. O’Keefe, LEAD ATTORNEY, Brittani K. Morgan, Kenny, O’Keefe & Usseglio, P.C., Hartford, CT.

JUDGES: KATHERINE A. ROBERTSON, United States Magistrate Judge.

OPINION BY: KATHERINE A. ROBERTSON

OPINION

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION TO DISMISS COUNTERLCLAIM FOR IMPROPER VENUE

(Dkt. No. 11)

ROBERTSON, U.S.M.J.

I. Introduction

On or around October 19, 2016, plaintiff Josephine Pittman (“Plaintiff”) filed a complaint in the Trial Court of the Commonwealth of Massachusetts, Superior Court Department, Franklin County (Dkt. No. 1-1). In summary, the complaint alleged that Plaintiff suffered serious injuries as a participant in a zip [*2] line canopy tour on the premises of defendant Zoar Outdoor Adventure Resort, Inc. (“Defendant”). Defendant removed the case to this court pursuant to 28 U.S.C. § 1441(a), which provides for removal of actions where the parties are diverse (Dkt. No. 1). In this court, Defendant answered the complaint and asserted a counterclaim against Plaintiff for fees and costs (Dkt. No. 3). Presently before the court is Plaintiff’s Motion to Dismiss Counterclaim for Improper Venue (“Plaintiff’s Motion to Dismiss”), which was referred to the undersigned for Report and Recommendation by the presiding District Judge (Dkt. No. 27). For the reasons set forth below, the court recommends that Plaintiff’s Motion to Dismiss be denied.

II. Relevant background

Plaintiff’s initial complaint (“Complaint”) asserted claims of gross negligence (Count I) and fraudulent inducement concerning a participant agreement and waiver of liability (“Participant Agreement”) signed by Plaintiff as a condition of her participation in the zip lining activity (Count II) (Dkt. No. 1-1).1 In its response to the Complaint, Defendant asserted a counterclaim for contractual indemnification based on the contents of the Participation Agreement signed by Plaintiff. [*3] 2 Defendant attached a copy of the Participant Agreement as Exhibit A to Defendant’s Answer to Plaintiff’s Complaint, Counterclaim and Claim for Jury Trial (Dkt. No. 3).

1 With leave of court, Plaintiff filed an amended complaint on June 5, 2017 (“Amended Complaint”), adding a claim of ordinary negligence and claims of loss of consortium on behalf of her husband, Ronald Pittman, and her daughter, Lillian Pittman (Dkt. No. 34).

2 The formal title of the document is “Participant Agreement, Release and Acknowledgement of Risk.”

In relevant part, the Participant Agreement provides as follows:

2. I expressly agree to and promise to accept and assume all of the risks existing in this activity [expressly including zip line canopy tours]. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Zoar from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of Zoar’s equipment, vehicles, facilities, or premises before, during, and after this activity including any such claims which allege negligent acts or omissions of Zoar.

4. Should Zoar or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.

. . .

6. In the event that I file a lawsuit against Zoar, I agree the Venue of any dispute that may arise out of this agreement [*4] or otherwise between the parties to which Zoar or its agents is a party shall be either in the town of Charlemont, Massachusetts Justice Court or the County or State Supreme Court in Franklin County, Massachusetts. I further agree that the substantive law of Massachusetts shall apply in that action without regard to the conflict of law rules of that state.3

(Dkt. No. 3-1 at 2).

3 The court takes judicial notice of the fact that a “town of Charlemont Justice Court” does not exist in Charlemont, Massachusetts. The parties agreed at oral argument that the Superior Court in Franklin County is the venue designated by the forum selection clause.

Plaintiff’s Motion to Dismiss is based solely on the forum selection clause in paragraph 6 of the Participant Agreement (Dkt. No. 11).

III. Standard of Review and Applicable Law

In this circuit, a motion to dismiss based on a forum selection clause is treated “as a motion alleging the failure to state a claim for which relief can be granted under Rule 12(b)(6).” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (citing Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 387 & n.3 (1st Cir. 2001)). This court “must ‘accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the [counterclaim] plaintiff’s favor, and determine whether the [counterclaim], so read, limns facts sufficient to justify recovery on any cognizable theory.'” Id. (quoting LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998)). A court considering a motion to dismiss “may properly consider only facts and documents that are part of or incorporated into the complaint.” Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008). In the present [*5] action, Defendant has attached the Participant Agreement in support of its counterclaim, and neither party disputes the authenticity of the document. Accordingly, in ruling on Plaintiff’s Motion to Dismiss, the court may appropriately take into account the contents of the Participant Agreement, including the choice of forum provision which is the basis of that motion. See Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (document sufficiently referred to in the complaint, the authenticity of which is not disputed, properly may be considered on a 12(b)(6) motion).

It remains an unsettled question in this circuit whether “‘forum selection clauses are to be treated as substantive or procedural for Erie purposes.'” Rivera, 575 F.3d at 16 (quoting Lambert v. Kysar, 983 F.2d 1110, 1116 & n.10 (1st Cir. 1993)). This is a question that the court need not address. See id. The forum selection clause in the Participant Agreement provides that Massachusetts law shall apply to legal actions arising out of the agreement or otherwise between the parties (Dkt. No. 35-1 at 1, ¶ 6). This court should, therefore, look to Massachusetts law for principles bearing on interpretation of the Participant Agreement. That said, there is no conflict between federal common law and Massachusetts law regarding the enforceability and interpretation [*6] of forum selection clauses. See generally Boland v. George S. May Int’l Co., 81 Mass. App. Ct. 817, 969 N.E.2d 166, 169-74 (Mass. App. Ct. 2012) (relying on federal and Massachusetts law for purposes of interpreting a forum selection clause). Accordingly, it is also appropriate for this court to apply federal common law in ruling on the enforceability and interpretation of the Participant Agreement’s forum selection clause. See Rivera, 575 F.3d at 16-17; see also OsComp Sys., Inc. v. Bakken Express, LLC, 930 F. Supp. 2d 261, 268 n.3 (D. Mass. 2013) (relying on federal common law where the parties did so; noting that there do not appear to be material discrepancies between federal and Massachusetts law regarding the validity and interpretation of forum selection clauses); Summa Humma Enters., LLC v. Fisher Eng’g, Civil No. 12-cv-367-LM, 2013 U.S. Dist. LEXIS 856, 2013 WL 57042, at *3 (D. Me. Jan. 3, 2013) (court would apply Maine law to interpretation of forum selection clauses; because Maine law was co-extensive with federal law concerning the interpretation of a forum selection clause, the court would also apply federal common law to the interpretive task).

IV. Analysis

Notwithstanding citations to cases ruling that forum selection clauses can constitute a waiver of a defendant’s right to remove a case to federal court, Plaintiff has not moved for dismissal or remand of this case to the state court where it was filed. Rather, Plaintiff’s Motion to Dismiss is limited [*7] to seeking dismissal of Defendant’s counterclaim. On this point, Plaintiff contends that this court is an improper venue for a counterclaim alleging contractual indemnity because the claim is a dispute between the parties that arises out of the Participant Agreement. Plaintiff notes that, in setting forth the designated venue, the forum selection clause uses the word “shall,” which, Plaintiff argues, connotes a mandatory choice of venue which is binding on Defendant (Dkt. No. 12). Defendant opposes Plaintiff’s Motion to Dismiss on the ground that the forum selection clause was binding on Plaintiff, but by its terms, did not constrain Defendant’s choice of venue for any claims it had against Plaintiff arising from the Participant Agreement (Dkt. No. 15). In the court’s view, Defendant has the better of the arguments.

Forum selection clauses “‘are prima facie valid and should be enforced.'” Silva, 239 F.3d at 386 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). “A forum selection clause ‘does not divest a court of [the] jurisdiction it otherwise retains, rather it constitutes a stipulation in which the parties join in asking the court to give effect to their agreement by declining to exercise jurisdiction.'” Provanzano v. Parker View Farm, Inc., 827 F. Supp. 2d 53, 58 (D. Mass. 2011) (quoting Silva, 239 F.3d at 389 n.6). Before giving effect to [*8] a forum selection clause, a court must address certain threshold issues, including whether: (1) the clause is mandatory or permissive; and (2) the clause governs the claims allegedly subject to it. See id.

1. The Forum Selection Clause is Mandatory as to Claims to Which it Applies

“‘Permissive forum selection clauses, often described as “consent to jurisdiction” clauses, authorize jurisdiction and venue in a designated forum, but do not prohibit litigation elsewhere. . . . In contrast, mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum.'” Rivera, 575 F.3d at 17 (quoting 14D C.A. Wright, A.R. Miller & E.H. Cooper, Federal Practice and Procedure § 3803.1 (3d ed. 1998)). “The use of words such as ‘will’ or ‘shall’ demonstrate parties’ exclusive commitment to the named forum.” Provanzano, 827 F. Supp. 2d at 60 (citing Summit Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9, 12 (1st Cir. 2001)). Moreover, “[a] crucial distinction between mandatory and permissive clauses is whether the clause only mentions jurisdiction or specifically refers to venue.” Arguss Communs. Group, Inc. v. Teletron, Inc., No. CIV. 99-257-JD, 1999 U.S. Dist. LEXIS 18085, 2000 WL 36936, at *7 (D.N.H. Nov. 19, 1999). In the present case, “[b]ecause the [Participant] Agreement uses the term ‘shall’ to describe . . . the commitment to resolving . . . [certain] litigation [*9] ‘in [either the town of Charlemont, Massachusetts Justice Court or the County or State Supreme Court in Franklin County, Massachusetts,’] [and because it refers to ‘venue,’ not just ‘jurisdiction,’] it is a mandatory clause.” Xiao Wei Yang Catering Linkage in Inner Mongolia Co., LTD v. Inner Mongolia Xiao Wei Yang USA, Inc., 150 F. Supp. 3d 71, 77 (D. Mass. 2015). Indeed, the parties do not appear to dispute that the forum selection clause in the Participant Agreement is mandatory as to claims to which it applies.

2. The Forum Selection Clause Does Not Apply to Defendant’s Counterclaim

Whether to enforce a forum selection clause depends on whether the clause governs the claims asserted in the lawsuit. See Provanzano, 827 F. Supp. 2d at 60 (citing Huffington v. T.C. Grp., LLC, 637 F.3d 18, 21 (1st Cir. 2011)); see also Pacheco v. St. Luke’s Emergency Assocs., P.C., 879 F. Supp. 2d 136, 140 (D. Mass. 2012). This is a matter of interpreting the terms of the contract between the parties. “The construction of a written contract which is plain in its terms and free from ambiguity presents a question of law for the court,'” Boland, 969 N.E.2d at 173 (quoting Hiller v. Submarine Signal Co., 325 Mass. 546, 91 N.E.2d 667, 669 (Mass. 1950)), and it is “‘the language of the forum selection clause itself that determines which claims fall within its scope.'” Pacheco, 879 F. Supp. 2d at 140 (quoting Rivera, 575 F.3d at 19).

In the present case, the plain language of the forum selection clause mandated venue in the Franklin County Superior Court, but only as to claims asserted by Plaintiff. Plaintiff’s contention that the forum selection clause is binding on Defendant ignores the qualifying introductory clause of the provision, which states [*10] that “[i]n the event [Plaintiff] file[s] a lawsuit against Zoar, [Plaintiff] agree[s]” to the venue specified in paragraph 6 of the Participant Agreement (Dkt No. 3-1 at 2). In this case, as in Rivera, the mandatory venue language “is preceded and informed by a qualifying phrase: ‘In the event that . . . [I file suit against Zoar] . . ., I . . . agree [the Venue] . . . .’ That is, the [Participant Agreement] required [Plaintiff] to assert any causes of action that [she] may have against [Defendant] in the [Franklin County Superior Court].” Rivera, 575 F.3d at 18. There is no comparable venue provision, nor is there any mandatory or restrictive language, in paragraph 4 related to an assertion by Defendant of a claim for recovery of attorney’s fees and costs (Dkt. No. 3-1 at 2). Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement. See Pacheco, 879 F. Supp. 2d at 140; Boland, 969 N.E.2d at 174; cf. Xiao Wei Catering Linkage, 150 F. Supp. 3d at 77 (satisfaction of condition precedent was required to trigger application of a forum selection clause).

Furthermore, because [*11] Plaintiff has not moved for remand and intends to prosecute her claims against Defendant in this court, it would be a waste of judicial resources to require Defendant to seek recovery of fees and costs in a separate state court action. In Count II of Plaintiff’s Complaint (and her amended complaint), she has alleged that she was fraudulently induced to sign the Participant Agreement. “It is black-letter law that an agreement . . . is voidable by a party who is fraudulently induced to enter into it.” Green v. Harvard Vanguard Med. Assocs., Inc., 79 Mass. App. Ct. 1, 944 N.E.2d 184, 193 (Mass. App. Ct. 2011); see also St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 879 N.E.2d 27, 35 (Mass. 2008) (a party is not bound by a contract she was fraudulently induced to sign). To prevail on the claim of ordinary negligence alleged in the Amended Complaint, Plaintiff will be required to prove that she was fraudulently induced to sign the Participant Agreement. See Lee v. Allied Sports Assocs., 349 Mass. 544, 209 N.E.2d 329, 332-33 (Mass. 1965). If she succeeds in meeting her burden of proof on this point, she will not be bound by the terms of the Participant Agreement, which is the sole basis for Defendant’s counterclaim for fees and costs. Thus, Plaintiff’s claims and Defendant’s counterclaim “involve a common nucleus of operative fact [and] all claims should be adjudicated together in this court.” Pacheco, 879 F. Supp. 2d at 138.

V. Conclusion

For these reasons, it is this court’s RECOMMENDATION [*12] that Plaintiff’s Motion be DENIED.4

4 The parties are advised that under the provisions of Fed. R. Civ. P. 72(b) or Fed. R. Crim. P. 59(b), any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within fourteen (14) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of HHS, 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof.

/s/ Katherine A. Robertson

KATHERINE A. ROBERTSON

United States Magistrate Judge

DATED: June 9, 2017