Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

Timothy Joseph Cahill and Anne Leslie Cahill, Plaintiffs v. Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc., Defendants

06-8-29 1

1 The parties consistently used the incorrect caption throughout their pleadings. Apparently, the Defendants misread the caption number on the Writ of Summons issued in this matter to read 06-8-29 rather than the proper caption number of 06-S-29. When the Defendants praeciped for a rule to file a complaint, their Praecipe carried the wrong number. All subsequent pleadings have duplicated that initial error. Accordingly, all are advised that the correct caption number, 06-S-29, should be used on all pleadings henceforth.

COMMON PLEAS COURT OF ADAMS COUNTY, PENNSYLVANIA

2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

November 14, 2006, Decided

JUDGES: [*1] MICHAEL A. GEORGE, Judge.

OPINION BY: MICHAEL A. GEORGE

OPINION

CIVIL

OPINION

[**345] On January 17, 2004, Timothy Joseph Cahill 2 was skiing at the Liberty Mountain Ski Resort located in Carroll Valley, Adams County, Pennsylvania. 3 Cahill, an experienced skier, enjoyed skiing privileges at Ski Liberty through his purchase of a season pass. Cahill applied for the 2003-2004 season pass through a website operated by Ski Liberty. In order to complete the application, the website required Cahill to acknowledge that he agreed to the terms of a “season pass and advantage card release agreement” by clicking the “okay” box on the web page. The web page included an explanation of the terms which included a release and assumption of risk clause. Cahill’s application on the website was followed up with a written [**346] application which Cahill signed on January 11, 2004. In a conspicuous location immediately above his signature, the written application provides that he agreed to be legally bound by the “Notice of Risk”, “Assumption of Risk”, “Release from Liability”, and “Acknowledgement” provided to him by Ski Liberty. 4

2 Timothy Joseph Cahill will be referred to throughout this pleading as “Cahill.” Plaintiff, Anne Leslie Cahill, [*2] is the wife of Timothy Joseph Cahill and has filed a derivative claim for loss of consortium.

3 Liberty Mountain Ski Resort is owned and operated by Snow Time, Inc., which is a Delaware corporation operating in Adams County. Collectively, the parties will be referred to as “Ski Liberty.”

4 Both the website and the written documents accompanying the application provide as follows:

NOTICE OF RISK

I understand and accept the fact that snowsports (skiing…) in their various forms, including the use of lifts are dangerous with inherent and other risks. These risks include but are not limited to… ice and icy conditions… All of the inherent and other risks of snowsports present the risk of permanent catastrophic injury or death.

ASSUMPTION OF RISK

Understanding and agreeing that snowsports are hazardous, I voluntarily and expressly assume for myself the risk of injury while participating in these sports.

RELEASE FROM LIABILITY

In consideration of the use of the ski area’s facilities, I AGREE NOT TO SUE Ski Liberty Operating Corp., Whitetail Mountain Operating Corp., and/or Ski Roundtop Operating Corp., their owners, agents and employees, if injured while using the facilities, regardless of any negligence [*3] on the part of the Ski Area or its employees.

ACKNOWLEDGEMENT

In consideration of being permitted to use the facilities at Liberty Mountain Resort, Whitetail Mountain Resort and Ski Roundtop, I expressly acknowledge:

1. I have read and understand the “Notice of Risk.” “Assumption of Risk,” “Release from Liability,” “Be Aware, Ski with Care,” and “Your Responsibility Code.”

3. I voluntarily assume for myself all the risks involved in snowsports.

(emphasis in original)

On the date in question, Cahill fell on an icy area while skiing near the bottom of Eastwind and Strata slopes. He claims that although he was unaware of ice in this area, Ski Liberty knew of the danger since, during the previous [**347] evening, a snow-making water hydrant broke releasing water which ultimately froze into ice because of the cold conditions. As a result of his fall, Cahill claims to have severely injured his face, back, ribs, and left hand. A Complaint was filed on March 17, 2006, claiming that Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area. Ski Liberty has filed an Answer with New Matter alleging Cahill assumed the [*4] risk of his injuries and released Ski Liberty from all liability. Ski Liberty currently moves for judgment on the pleadings.

[HN1] A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Bata v. Central Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174, 178 (Pa. 1966). Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. Nederostek v. Endicott-Johnson Shoe Co., 415 Pa. 136, 202 A.2d 72, 73 (Pa. 1964). A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. Dunn v. Board of Property Assessment, Appeals & Review of Allegheny County, 877 A.2d 504 510 n. 12 (Pa. Cmwlth. 2005). Since I find that the release entitles Ski Liberty to judgment as a matter of law, the Complaint will be dismissed.

[HN2] [**348] Although disfavored [*5] under Pennsylvania law, exculpatory agreements, or releases, are valid provided they comply with the safeguards enunciated by our Superior Court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (Pa. Super. 1978), aff’d, 490 Pa. 428, 416 A.2d 1010 (Pa. 1980) as follows:

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

Id. at 439. Applying this criteria, I find the releases executed by Cahill to be valid.

The pleadings support a conclusion that the present agreement is not one of adhesion. Cahill was not forced to enter into the contract, but did so voluntarily in order to ski at Liberty Mountain. The agreement between the parties related to Cahill’s engaging in a matter of personal choice without any evidence of coercion or inducement negating [*6] the volitional nature of his act. Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity. See Kotovsky v. Ski Liberty Operating Corporation, 412 Pa. Super. 442, 603 A.2d 663 (Pa. Super. 1992) (holding that exculpatory agreement signed by skier injured in downhill race was valid).

[**349] The releases also do not contravene public policy. The clauses were purely private in nature and in no way affect the rights of the public. In fact, [HN3] releases such as that before the Court are actually in furtherance of public policy. Our state legislature, in enacting 42 Pa.C.S.A. § 7102(c) (relating to comparative negligence), specifically recognized that there are inherent risks in the sport of downhill skiing and specifically preserved the doctrine of assumption of risk as it applied to downhill skiing injuries and damages. 42 Pa.C.S.A. § 7102(c). This suggests that it is the policy in this Commonwealth to enforce the doctrine of assumption of risk for persons knowingly engaging in downhill skiing. Kotovsky, 603 A.2d at 666.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity [*7] the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

[**350] Cahill received, and acknowledged receipt, of the release from liability on two separate occasions. Notably, the first occasion appears to have been well in advance of the sale thereby allowing him ample opportunity to read it before using the facilities. 5 This factual [*8] background reveals that the intent of the parties was imminently clear and spelled out with the utmost particularity in plain language. Therefore, under the criteria set forth in Zimmer, the releases are valid.

5 The written application reveals an order date for the season pass of October 31, 2003 which circumstantially establishes the date application was submitted by Cahill over the internet.

Perhaps in recognition of the viability of the releases at issue, Cahill does not challenge their validity but, rather, disputes their application to the current facts. In this regard, Cahill suggests that a hazardous condition created by Ski Liberty, and known to exist by the resort, is not an inherent risk to the sport of skiing thereby making the exculpatory agreements and assumption of risk doctrine inapplicable. In support of this argument, Cahill cites Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. 2005). In Crews, the Superior Court reviewed the trial court’s dismissal of a complaint wherein the plaintiff sought damages for injuries received when the plaintiff was involved in a collision with another snowboarder who was a minor under the influence of alcohol. In reversing [*9] the trial court, the Superior Court concluded that the plaintiff did not assume the risk of a collision with an underage drinker on a snowboard since the same is not an inherent risk of the sport of skiing.

Cahill’s reliance on Crews is misplaced. Primarily, Crews specifically limited the issue before the court to an [**351] analysis of the application of the assumption of risk doctrine. Instantly, this Court addresses a separate and distinct issue concerning the validity of an exculpatory agreement. Although these different issues are dealt with simultaneously in a number of court opinions, they are indeed distinguishable and require separate analysis. Compare Zimmer v. Mitchell and Ness, supra with Crews v. Seven Springs Mountain Resort, supra. Accordingly, I find Crews to be inapplicable to the issue of whether the release agreement entered by Cahill is valid.

Since I have found that Cahill knowingly and voluntarily entered into an exculpatory agreement releasing Ski Liberty from both the inherent dangers of downhill skiing and any negligence on the part of Ski Liberty or its employees, it is not necessary to undertake a detailed analysis of application of the assumption of risk doctrine [*10] to the current matter. Nevertheless, as noted, our legislature has expressly preserved assumption of risk as a defense to actions for downhill skiing injuries. 42 Pa.C.S.A. § 7102(c). Moreover, Ski Liberty provided Cahill prior and detailed notice of the dangerous and inherent risks of skiing. The notice is both thorough and exhaustive. Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man- [**352] made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks [*11] were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

Since I find the exculpatory agreement valid, Cahill’s claim cannot be sustained. Similarly, Mrs. Cahill’s derivative claim for loss of consortium must also automatically fail as a matter of law. See Kiers by Kiers v. Weber National Stores, Inc., 352 Pa. Super. 111, 507 A.2d 406 (Pa. Super. 1986); Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552 (Pa. Super. 1985); and Little v. Jarvis, 219 Pa. Super. 156, 280 A.2d 617 (Pa. Super. 1971).

For the foregoing reasons, Defendants’ Motion for Judgment on the Pleadings is granted.

BY THE COURT:

MICHAEL A. GEORGE

Judge

Date filed: November 14, 2006

ORDER

AND NOW, this 14<th> day of November, 2006, for the reasons set forth in the attached Opinion, Defendants’ Motion for Judgment on the Pleadings is granted. The Prothonotary is directed to enter judgment in favor of the Defendants, Ski Liberty Operating Corp. and Snow Time, Inc.

BY THE COURT:

MICHAEL A. GEORGE

Judge

 


Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

Jordan Bernstein, an Infant, by His Mother and Natural Guardian, Malka Bernstein, et al., Respondents, v Randee Wysoki et al., Appellants, et al., Defendants. (Index No. 20686/07)

2008-06606, 2008-09740

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

August 24, 2010, Decided

PRIOR HISTORY: Appeals from orders of the Supreme Court, Nassau County (Thomas P. Phelan, J.), entered June 13, 2008 and September 30, 2008. The order entered June 13, 2008, insofar as appealed from, denied that branch of the cross motion of defendants Randee Wysoki, Dina Farrell, Michael Farrell and Gregory Scagnelli to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause. The order entered September 30, 2008, insofar as appealed from, upon reargument, adhered to the original determination and denied that branch of the cross motion of defendant Julie Higgins which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.

Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 10774 (N.Y. Sup. Ct., Sept. 26, 2008)

Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 9483 (N.Y. Sup. Ct., June 10, 2008)

COUNSEL: [***1] Martin Clearwater & Bell, LLP, New York City (William P. Brady, Timothy M. Smith and Stewart G. Milch of counsel), for appellants.

Napoli Bern Ripka, LLP, New York City (Denise A. Rubin of counsel), for respondents.

JUDGES: REINALDO E. RIVERA, J.P., HOWARD MILLER, THOMAS A. DICKERSON, SHERI S. ROMAN, JJ. RIVERA, J.P., MILLER and ROMAN, JJ., concur.

OPINION BY: DICKERSON, J.

OPINION

[*243] [***2] [**51] Dickerson, J.

Factual Background and the Camp Contract

On or about June 25, 2007 the plaintiff Malka Bernstein (hereinafter Malka) entered into a contract (hereinafter the Camp Contract) with the defendant Camp Island Lake (hereinafter the Camp) for her then 13-year-old son, the plaintiff Jordan Bernstein (hereinafter Jordan), to attend the Camp during summer 2007. The Camp is located in Starrucca, Wayne County, Pennsylvania, where it also maintains a summer office. The Camp maintains a winter office in New York City.

The second paragraph of the Camp Contract provided:

“If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing [*244] adequate quantities [***3] of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps” (emphasis added).

The Camp Contract also contained a forum selection clause. The sixth paragraph of the Camp Contract provided:

“Enclosed with this agreement is $ 1000 per child enrolled in program. Payments on account of tuition (less $ 100 registration fee) will be refunded if requested before January 1st. Cancellations of sessions will not be accepted after January 1st. Thereafter, no refunds will be made. All refunds will be made on or about May 1st. Installments on the balance will be due on January 1st, March 1st, & May 1st. A returned check fee of $ 25 will be applied to all returned checks. These rates are subject to change without notice. Any outstanding balance precludes admission to camp. The [***4] venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania” (emphasis added).

The eighth and final paragraph of the Camp Contract provided, in part, “[t]he parent represents that he/she has full authority [**52] to enroll the camper/to authorize participation in activities/medical care and to contract the aforesaid.”

On or about August 8, 2007, while enrolled at the Camp, Jordan developed a pain in his lower abdomen. The defendants Randee Wysoki and Jill Tschinkel, who were the doctor and registered nurse, respectively, working at the Camp at the time, allegedly cared for Jordan at the Camp before taking him to the defendant Wilson Memorial Regional Medical Center (hereinafter Wilson Memorial), in Johnson City, Broome County, New York, in the vicinity of the Camp. While at Wilson Memorial from August 8, 2007 through August 10, 2007, Jordan allegedly received care and treatment from the defendants Dina Farrell, M.D., Michael Farrell, M.D., Gregory Scagnelli, M.D., Julie Higgins, R.P.A., Patricia Grant, R.N., and [***5] William Kazalski, R.N. Allegedly due to the failure of the defendants to timely recognize and properly care for and treat Jordan’s condition, he sustained various injuries.

[*245] The Instant Action

In November 2007, Jordan and Malka, both as Jordan’s guardian and in her individual capacity, commenced the instant action, inter alia, to recover damages for medical malpractice in the Supreme Court, Nassau County, against, among others, the Camp, Wilson Memorial, “Randy ‘Doe,’ M.D.,” ” ‘Jane Doe’ R.N.,” Dina Farrell, and Michael Farrell. Thereafter, the plaintiffs amended their complaint to substitute Wysoki for the defendant Randy “Doe,” and to add Scagnelli as a defendant.

After joinder of issue, the Camp moved, inter alia, to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract.

The plaintiffs moved for leave to serve an amended summons and complaint to add Higgins and Jill Tschinkel, R.N., as defendants.

The defendants Grant, Kazalski, and Wilson Memorial jointly cross-moved to change the venue of the action from Nassau County to Broome County pursuant to CPLR 510 and 511 (a) on the grounds that the defendants [***6] Grant, Kazalski, Dina Farrell, Michael Farrell, Scagnelli, and Higgins worked and/or resided in, or within approximately 10 minutes of, Broome County, and also because Wilson Memorial was located in Broome County.

The defendants Wysoki, Dina Farrell, Michael Farrell, and Scagnelli (hereinafter collectively the doctor defendants) jointly cross-moved, inter alia, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract. The doctor defendants observed that, pursuant to the last paragraph of the Camp Contract, Malka represented that she had the authority to bind Jordan to the Camp Contract. The doctor defendants further pointed out that the Camp Contract “outlined the terms and conditions of [Jordan’s] attendance at the Camp, including any necessary medical care and treatment or care and treatment decisions for [Jordan].” In that regard, according to the doctor defendants, “as all the parties to the instant action either provided care and treatment to [Jordan] at the Camp or at [Wilson Memorial] based on the Camp’s decision as to what care and treatment [Jordan] needed to receive, any litigation [***7] between the parties in this matter is subject to the terms and conditions of the [Camp Contract].”

[*246] Specifically, the doctor defendants argued that Wysoki was covered by the Camp Contract because she “was the physician working at the Camp who sent [Jordan] to [Wilson Memorial]” and thus “is part of this lawsuit through her work at [**53] the Camp.” The doctor defendants further argued that Dina Farrell, Michael Farrell, and Scagnelli were covered by the Camp Contract because they “treated [Jordan] at [Wilson Memorial] pursuant to the Camp’s decision as ‘in loco parentis’ and with the authority granted to the Camp . . . to have [Jordan] treated at a hospital” and thus “became involved in the care and treatment of [Jordan] based on the decision made of the Camp to take [Jordan] to [Wilson Memorial].”

The doctor defendants also argued that the Camp Contract contained a prima facie valid forum selection clause that should be enforced “absent a strong showing that it should be set aside.” The doctor defendants further argued that the forum selection clause, which by its terms applied to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents [***8] is a party,” applied to the instant action, since the plaintiffs’ tort claims depended on the existence of the Camp Contract. In that regard, the doctor defendants noted that “there would be no [tort claims] had [Jordan] not been a camper at the Camp during the Summer of 2007,” and that Jordan “would not have been a camper at the Camp without the terms and conditions of the [Camp Contract] being accepted and agreed to by [Malka].” Finally, the doctor defendants “noted that the Courts have held that [HN1] non-parties to an agreement containing a forum selection clause may be entitled to enforce a forum selection clause where the relationship to the signatory is sufficiently close or where the liability of a corporation and an officer is based on the same alleged acts” (citations omitted).

In an order entered June 13, 2008, the Supreme Court, inter alia, denied that branch of the Camp’s motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause, denied that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause, and granted the plaintiffs’ motion for [***9] leave to serve an amended summons and complaint (2008 N.Y. Misc. LEXIS, 9483, 2008 NY Slip Op 31711[U]).

The doctor defendants appeal, as limited by their brief, from so much of the foregoing order as denied that branch of their cross motion which was to dismiss the complaint based on the forum selection clause.

[*247] The Camp moved for leave to reargue that branch of its motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause. The Camp argued that the Supreme Court “blurred the distinctions between [a parent’s] legal ability to bind an infant plaintiff to the terms of a forum selection clause as opposed to a release of liability,” and that, “contrary to a release of liability, the law permits a parent of a minor child who signs a contract with a forum selection clause to bind the minor child to the terms and agreements set forth by the forum selection clause.”

The doctor defendants moved, inter alia, for leave to reargue that branch of their cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause. The doctor defendants argued that the Supreme Court erred in finding that Malka could not bind Jordan to the terms of the Camp Contract, [***10] including the forum selection clause, stating, “[t]he Courts have consistently held that non-signatory infants, who are the subject of and obtain benefit from an agreement signed by the parent, such as a camp enrollment contract, are considered to be third-party beneficiaries for the purpose of enforcing the terms of the contract.” Therefore, according to the doctor defendants, because Jordan “was a [**54] third-party beneficiary of the [Camp Contract] and as the forum selection clause in the [Camp Contract] is valid, the forum selection clause must be found to be applicable to [Jordan’s] claims as well as [Malka’s claims].”

The doctor defendants further argued that the Supreme Court erred in finding “that there was no factual predicate for the foreseeable enforcement [of the forum selection clause in the Camp Contract] by the non-signatory [doctor defendants].” Specifically, noting that the Camp Contract granted authority ” ‘without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper,’ ” the doctor defendants argued that the Camp “contract itself contemplated and provided the factual predicate for the medical treatment [***11] at issue.”

The doctor defendants argued that they “are exactly the ‘assigns’ that were contemplated by the [Camp Contract], as the same sentence in the contract states that the assigns may ‘hospitalize/treat’ [Jordan] and/or ‘order injections/anesthesia/surgery’ for [Jordan].” Thus, according to the doctor defendants, “the [Camp Contract] is the only mechanism by which [they as non-signatories] were able to ‘hospitalize/treat’ [Jordan] [*248] and, thus, the [Camp Contract] is the only mechanism by which there are claims for the non-signatory hospitalization and treatment at issue.”

The doctor defendants further argued that “there was a sufficiently ‘close relationship’ between the signatories to the [Camp Contract] and the non-signatory [doctor] defendants, to reasonably foresee that [the doctor defendants] or noted ‘assigns’ in the contract would seek to enforce the terms of the contract” (emphasis omitted).

Finally, regarding Wysoki in particular, the doctor defendants argued that the Supreme Court erred in finding “that the same acts are not alleged with regard to the claimed liability of the Camp and Dr. Wysoki.”

At some point in time, the plaintiffs served a supplemental summons and a second [***12] amended summons and complaint, inter alia, adding Higgins as a defendant. Higgins moved, inter alia, to dismiss the complaint insofar as asserted against her based on the forum selection clause.

In an order entered September 30, 2008, the Supreme Court, inter alia, granted leave to reargue to both the Camp and the doctor defendants, and, upon reargument, adhered to its original determination denying the respective branches of the Camp’s motion and the doctor defendants’ cross motion which were to dismiss the complaint insofar as asserted against them based on the forum selection clause (2008 N.Y. Misc. LEXIS,10774, 2008 NY Slip Op 33610[U]). The Supreme Court also denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.

The doctor defendants appeal from so much of the second order as, upon reargument, adhered to the original determination denying that branch of their cross motion which was to dismiss the complaint based on the forum selection clause, and Higgins jointly appeals from so much of the same order as denied that branch of her motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.

Discussion

[HN2] ” ‘A [***13] contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the [*249] selected forum would be so gravely difficult that the challenging party would, [**55] for all practical purposes, be deprived of its day in court’ ” (Stravalle v Land Cargo, Inc., 39 AD3d 735, 736, 835 NYS2d 606 [2007], quoting LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 NYS2d 657 [2006]; see Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764, 765, 861 NYS2d 820 [2008]; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 790 NYS2d 684 [2005]).

[HN3] ” ‘Absent a strong showing that it should be set aside, a forum selection agreement will control’ ” (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836, 878 NYS2d 793 [2009], quoting Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 272, 557 NYS2d 140 [1990]).

The Forum Selection Clause Is Prima Facie Valid and Enforceable

In Horton v Concerns of Police Survivors, Inc. (62 AD3d 836-837, 878 NYS2d 793 [2009]), considering a forum selection clause under similar circumstances, we concluded,

“Here, the plaintiff failed to make the requisite ‘strong showing’ that the forum selection clause in her employment [***14] agreement, which requires disputes to be decided in the courts of the State of Missouri, should be set aside. Although the plaintiff averred that she is a single mother who resides with her teenaged daughter in Dutchess County, New York, this claim was insufficient, standing alone, to demonstrate that enforcement of the forum selection clause would be unjust. The plaintiff offered no evidence that the cost of commencing a wrongful discharge action in Missouri would be so financially prohibitive that, for all practical purposes, she would be deprived of her day in court. Moreover, the plaintiff did not allege that the inclusion of a forum selection clause in her employment contract was the product of overreaching, and she did not demonstrate that the clause is unconscionable.” (Citations omitted.)

[1] Similarly, here, the plaintiffs failed to demonstrate that the forum selection clause is unreasonable or unjust, or that a trial in Wayne County, Pennsylvania, would be so gravely difficult that, for all practical purposes, they would be deprived of their day in court. Moreover, the plaintiffs failed to allege, let [*250] alone demonstrate, that the forum selection clause was the [***15] result of fraud or overreaching. Under these circumstances, the plaintiffs failed to make any showing, let alone a strong showing, that the forum selection clause should be set aside on such bases (id.; see Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329, 1331-1332, 887 NYS2d 121 [2009]; compare Yoshida v PC Tech U.S.A. & You-Ri, Inc., 22 AD3d 373, 803 NYS2d 48 [2005] [the Supreme Court properly declined to enforce a contractual forum selection clause fixing Tokyo as the forum for any litigation between the parties, since the plaintiff made “a strong showing that a trial in Tokyo would be so impracticable and inconvenient that she would be deprived of her day in court”]).

The Forum Selection Clause Applies to this Action

[2] Further, the forum selection clause applies to the instant tort action. Notwithstanding the placement of the forum selection clause in the sixth paragraph of the Camp Contract, which otherwise pertains to fees, tuition, and refund policies, the applicability of the forum selection clause does not turn on the type or nature of the dispute between the parties. Rather, by its express language, the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the [***16] parties to which the camp or its agents is a party” (see [**56] Tourtellot v Harza Architects, Engrs. & Constr. Mgrs., 55 AD3d 1096, 1097-1098, 866 NYS2d 793 [2008] [rejecting the defendant’s claim that the subject forum selection clause in its agreement with the third-party defendant ” ‘was never intended to apply to third-party claims in personal injury and products liability actions such as . . . plaintiff’s action here,’ (since) under its broad and unequivocal terms, the applicability of the subject forum selection clause does not turn on the type or nature of the dispute between them; rather, it applies to ‘any dispute arising under or in connection with’ their agreement”]; see also Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 304, 546 NYS2d 591 [1989] [in a personal injury action to recover damages for negligence, the plaintiffs were bound by a forum selection clause in a camp enrollment contract which provided that “(t)he venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the Village of Hancock, N.Y. Justice Court or the County or State Supreme Court in Delaware County”]).

Jurisdiction and Venue

[3] Moreover, the forum [***17] selection clause is enforceable as a general matter even though it does not include any language [*251] expressly providing that the plaintiffs and the Camp intended to grant exclusive jurisdiction to Pennsylvania. The forum selection clause relates to both jurisdiction and venue, and employs mandatory venue language, providing that the venue of any dispute arising out of the agreement or otherwise between the parties “shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania.” Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable (see Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C., 50 AD3d 185, 187, 851 NYS2d 311 [2008]; John Boutari & Son, Wines & Spirits, S.A. v Attiki Importers & Distribs. Inc., 22 F3d 51, 52 [1994]).

Enforceability of Forum Selection Clause by Nonsignatories

Notwithstanding the fact that the forum selection clause is prima facie valid and enforceable and applicable to the instant tort action as a general matter, this Court must further determine whether the defendant doctors and Higgins, who are not signatories to the Camp Contract, may enforce the forum selection clause.

[HN4] As [***18] a general rule, “only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement” (Freeford Ltd. v Pendleton, 53 AD3d 32, 38, 857 NYS2d 62 [2008]; see ComJet Aviation Mgt. v Aviation Invs. Holdings, 303 AD2d 272, 758 NYS2d 607 [2003]). However,

[HN5] “there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by [**57] virtue of the relationship between them.” (Freeford Ltd. v Pendleton, 53 AD3d at 38-39 [citations [*252] omitted]; see Direct Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *8, 2000 WL 1277597,*3 [SD NY 2000]; [***19] cf. EPIX Holding Corp. v Marsh & McLennan Cos., Inc., 410 NJ Super 453, 463, 982 A2d 1194, 1200 [2009] [“It is clear that in certain situations, a non-signatory to an arbitration agreement may compel a signatory to arbitrate. Since arbitration agreements are analyzed under traditional principles of state law, such principles allow a contract to be enforced by or against nonparties to the contract through assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel” (citations and internal quotation marks omitted)].)

[4] Here, relying on the provision in the Camp Contract by which the plaintiffs granted authority to the Camp and to its “assigns” in all medical matters, inter alia, to hospitalize and treat Jordan, Dina Farrell, Michael Farrell, Scagnelli, and Higgins claim to have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship. Significantly, however, there is nothing in the Camp Contract indicating that the Camp intended to use Dina Farrell, Michael Farrell, Scagnelli, and Higgins in particular in [***20] the event Jordan required “off-camp” medical services. In fact, there is nothing in the Camp Contract indicating that the Camp intended to use Wilson Memorial–located in a different state from the Camp–and its physicians and physician assistants in the event Jordan required medical services.

Under these circumstances, Dina Farrell, Michael Farrell, Scagnelli, and Higgins do not have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship (cf. Freeford Ltd. v Pendleton, 53 AD3d at 40-41 [“Even a cursory examination of these two agreements makes clear that (defendants) Lane Pendleton and Cairnwood Management had every reason to foresee that (plaintiff) Freeford would seek to enforce the forum selection clause against them”]; Dogmoch Intl. Corp. v Dresdner Bank, 304 AD2d 396, 397, 757 NYS2d 557 [2003] [“(a)lthough defendant was a nonsignatory to the account agreements, it was reasonably foreseeable that it would seek to enforce the forum selection clause given the close relationship between itself and its (signatory) subsidiary”]; Direct [*253] Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *10-14, 2000 WL 1277597, *4-5 [***21] [where “a number of . . . clauses in the Agreement between (plaintiff) Direct Mail and (nonparty) MBNA Direct indicate that the signatories intended the contract to benefit related (nonsignatory defendant) MBNA companies,” MBNA Corporation and MBNA America Bank, N.A., were sufficiently closely related to MBNA Direct such that it was foreseeable that they would seek to enforce a forum selection clause contained in the subject agreement]).

[5] Conversely, however, we conclude that Wysoki, as an employee of the Camp, is entitled to enforce the forum selection clause despite her status as a nonsignatory to the Camp Contract. The forum selection clause itself applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party” (emphasis added). Moreover, we find that the [**58] Camp’s relationship with Wysoki, its on-site medical employee, was “sufficiently close so that enforcement of the clause [was] foreseeable by virtue of the relationship between them” (Freeford Ltd. v Pendleton, 53 AD3d at 39). Thus, Wysoki, despite being a nonsignatory to the Camp Contract, was entitled to enforce the valid forum selection clause. Accordingly, [***22] the Supreme Court should have granted that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki based on the forum selection clause.

Conclusion

The Supreme Court properly denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause. However, the Supreme Court improperly, upon reargument, adhered to its prior determination denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.

Accordingly, the appeal from the order entered June 13, 2008 is dismissed, as that order was superseded by the order entered September 30, 2008, made upon reargument. The order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) [***23] and 501 based on the forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008 denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint [*254] insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause and thereupon granting that branch of the cross motion. As so modified, the order entered September 30, 2008 is affirmed insofar as appealed from.

Rivera, J.P., Miller and Roman, JJ., concur.

Ordered that the appeal from the order entered June 13, 2008 is dismissed, without costs or disbursements, as that order was superseded by the order entered September 30, 2008, made upon reargument; and it is further,

Ordered that the order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and [***24] 501 based on a forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause and thereupon granting that branch of the cross motion; as so modified, the order entered September 30, 2008, is affirmed insofar as appealed from, without costs or disbursements.