This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us to deny relief to a plaintiff for whom we have considerable sympathy.Posted: October 23, 2017
We do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.
State: Rhode Island, Supreme Court of Rhode Island
Plaintiff: Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.
Defendant: Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees
Defendant Defenses: Open and Obvious and Recreational Use Statute
Holding: for the Defendant
The title is a quote from another case and states perfectly the situation most judges face when looking at a case.
In this one, a man dove into a lake at a State Park in Rhode Island. He broke his neck and became a quadriplegic. The Rhode Island Supreme Court dismissed his claims because the assumed the risk and the Rhode Island Recreational Use Statute prevented his claims.
The state owned the land in question and ran it as a state park. There was a man-made pond in the park that was “treated much like a swimming pool.” Because of changes to the pond, the decision was made to close the pond and now allow swimming. No swimming signs were posted, and no lifeguards were on duty. Other parks of the park were still open, including the bathhouses.
Rhode Island did not allow the operation of a body of water on a swim at your own risk basis.
The plaintiff was a 29-year-old husband and father of two. He went to the park with a friend. While at the park he ran and dove into the water breaking his neck and becoming a paraplegic.
The plaintiff by and through his wife, as Administratrix of the estate of the plaintiff used the state and various agencies for his injuries. The case when to trial and the jury returned a verdict for the defendants. The plaintiff filed a motion for a new trial, which was granted and the defendant filed this appeal to the Rhode Island Supreme Court.
Analysis: making sense of the law based on these facts.
The state based its appeal on the Rhode Island Recreational Use Statute, and the state owed no duty for an open and obvious natural condition.
The court first looked at the Rhode Island Recreational Use Statute. The statute provided immunity to landowners and to state and municipalities. The limitation was not absolute. A landowner could be liable if the plaintiff could prove “…[f]or
the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering the user’s peril…”
The state argued nothing it did established proof of willful or malicious failure to warn. The court could not find any evidence to support the plaintiff’s claims. On top of that, the best defense was provided by the plaintiff when he admitted
he knew about the dangers of diving into shallow water, and that he had not checked the depth of the water. Finally, he admitted he was probably irresponsible.
The court then looked at the open and obvious danger defense. Here again, the plaintiff failed.
This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.”
The court concluded.
Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law.
So Now What?
To many this case might suck, sending this young man to live a life without the financial support he may need. However, as the quote in the beginning said, the law is the law. When you undertake to engage in a sport or activity, you assume
the risks of those activities.
More importantly when recreating on land for free, the landowner owes no duty to keep you safe from yourself. If not, recreation would only be on federal lands where the chance of proving a claim is negligible. State, City and County Parks and Open Spaces would all close because they could not afford the insurance needed to keep them open.
Copyright 2017 Recreation Law (720) 334 8529
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Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.1 v. The State of Rhode Island et al.
1 The original plaintiff, Brett A. Roy, passed away while the instant appeal was pending. An order substituting “Dawn K. Roy, the administratrix of the estate of Brett A. Roy” as a party in this case entered on April 15, 2016. See Rule 25(a) of the Superior Court Rules of Civil Procedure.
No. 2013-213-Appeal. No. 2014-39-Appeal.
SUPREME COURT OF RHODE ISLAND
139 A.3d 480; 2016 R.I. LEXIS 88
June 23, 2016, Filed
PRIOR HISTORY: [**1] Providence County Superior Court. (PC 09-2874). Associate Justice Susan E. McGuirl.
Roy v. State, 2013 R.I. Super. LEXIS 54 (2013)
COUNSEL: For Plaintiffs: Patrick C. Barry, Esq., Douglas E. Chabot, Esq.
For State: Rebecca T. Partington, Department of the Attorney General; Adam J. Sholes, Department of the Attorney General.
JUDGES: Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION BY: Paul A. Suttell
[*482] Chief Justice Suttell, for the Court. A wise jurist once wrote:
“This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us * * * to deny relief to a plaintiff for whom we have considerable sympathy. We do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.'” Burnham v. Guardian Life Insurance Co. of America, 873 F.2d 486, 487 (1st Cir. 1989) (Selya, J.) (quoting United States v. Clark, 96 U.S. 37, 49, 24 L. Ed. 696, 13 Ct. Cl. 560 (1877) (Harlan, J., dissenting)).
This is indeed such a hard case. Tragically, on July 10, 2008, twenty-nine-year-old Brett A. Roy broke his neck when diving into the pond at World War II Veterans Memorial Park in Woonsocket, resulting in his paralysis from the neck down. Roy’s injuries were vast and undeniable. Roy and his wife, Dawn K. Roy (plaintiffs), individually and as the parents of their two children, [**2] filed this action against the state, the Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees (collectively, the state), alleging several counts of negligence and premises liability. After a multi-week trial and lengthy deliberations, a jury returned a verdict for the state, finding that the state had not “fail[ed] to guard or warn against a dangerous condition, use, structure or activity” or against a “non-obvious, latent dangerous condition” at the pond. Subsequently, both parties filed renewed motions for judgment as a matter of law, which the trial justice denied. However, the plaintiffs also filed a motion for a new trial, which was granted. Thereafter, the state brought the instant appeal arguing that the trial justice erred in granting the plaintiffs’ motion for a new trial, and that, as a matter of law, the state owed no duty to Roy. The plaintiffs filed a cross-appeal arguing that their motion for judgment as a matter of law should have been granted and that the trial justice erred in denying their motion for additur or alternatively their motion for a new trial on damages only. For the reasons set forth herein, [**3] we vacate the judgment of the Superior Court.
Facts and Travel
World War II Veterans Memorial Park and Pond
In July 2008, the pond at World War II Veterans Memorial Park in Woonsocket [*483] was one of several bodies of water operated by the state as a recreational facility. At trial several state workers testified to the condition and maintenance of the park and pond.
The director of DEM at the time of the incident, W. Michael Sullivan, testified that the man-made pond was “filled mechanically” and “treated much like a swimming pool.” Sullivan testified that, in June 2008, he made the decision to fill the pond, and he appeared at a press conference where he announced his decision.2 Sullivan stated that, in July 2008, there were “no swimming” signs posted, but DEM “expected that there would be people * * * using the park.” Sullivan explained that facilities such as the bathhouses were open, but he stated that he “did not ever consider the beach to be open.” Sullivan agreed that it was prohibited under DEM rules to operate the pond on a “swim-at-your-own-risk” basis, and he explained that, “if there were not lifeguards present at a swimming facility, that the swimming facility was closed.” Sullivan [**4] explained that, in July 2008, staff on-site at the park had been directed “to tell people that the beach — that the water was closed to swimming, to point to signage and refer them to that, but it was not expected that they would stand there and order people out [of the water] * * *.”
2 Sullivan had explained that, in February 2008, World War II Veterans Memorial Park had been “slated for closure” in the budget presented to the Legislature that year. However, at the end of June, after local officials expressed concern, he made the decision as the Director of DEM to fill the pond.
The Associate Director of Natural Resources for DEM, Larry Mouradjian, also testified at trial. He described the pond, explaining that there was a designated lap pool, a swim area, and a diving platform. He testified that he had seen the pond with and without water, and, based on his opinion, diving near the wall into the lap pool would be dangerous because it was too shallow. Mouradjian testified that the pond was typically not filled “until such time as we were able to fully staff the * * * swim area and invite the public to swim at the pond * * *.” Mouradjian stated that he thought the decision to fill the [**5] pond was untimely “[b]ecause the things normally done to prepare the pond to be open to the public had not been done * * *.” He testified that he had spoken to Sullivan and recommended that the pond be drained or left empty until DEM “beg[a]n to acquire the resources necessary.”
The DEM Chief of the Rhode Island Division of Parks and Recreation, Robert Paquette, and the Deputy Chief, John Faltus, also testified at trial. Paquette confirmed that Mouradjian was hesitant to open the pond and that Mouradjian told him that “we should really look into this.” However, Paquette testified that “[Sullivan] was ordering [him] to open up the facility.” Paquette also testified that he had never been told that “there was ever a problem with shallow water [along the wall of the pond].” Faltus testified that he was never “officially informed” that people were diving at the pond, but he had “heard hearsay that there’s possible diving activity after hours.” Faltus stated that generally they did not “allow diving at any [state] swimming areas.” However, he also admitted that “[p]eople [were] allowed to possibly do some shallow entry dives,” explaining that whether diving was allowed “[d]epends on how you define ‘dive.'”
William Mitchell [**6] Jr., the Regional Park Manager for DEM in 2008, testified that there was no “system that was in place to warn people of the depth of the water.” However, he stated that “if a patron * * * [*484] ask[ed] an employee * * * they would advise them as to the depth of the water, [and] if they asked about diving, [they] would tell them the rules and regulations * * *.” Mitchell agreed that Roy’s injury was “[g]enerally” the type of thing that he could foresee and he was concerned that it was the kind of injury that would happen when he was told to fill the pond before lifeguards had been hired.
Peter Lambert, a DEM caretaker supervisor who was employed at World War II Veterans Memorial Park from 1990 to 2008, testified at trial extensively about the physical characteristics and operation of the park and pond. He explained that, as the caretaker supervisor, he was the “acting park manager,” testifying that he “handled pretty much everything that had to do with the park itself: scheduling the staff, supervising the lifeguards, interviewing park rangers, interviewing seasonal people, assigning various work to people.” Essentially he either directly worked on or helped supervise everything that needed to be done at the [**7] park.
Lambert described the park as “16 acres * * * in the center of * * * Woonsocket [with] a man made [sic] pond, * * * two tennis courts, a playground area, horseshoe pits, * * * [an] Olympic pool area, * * * and the beach area * * *.” Lambert described the water depth near the wall where the Olympic pool met the beach area as being “pretty consistent over the years.” He testified that, when the pond was drained, he would try to “smooth the bottom” of it. Lambert explained that the pond “wouldn’t be perfectly level like a pool,” but testified that he “would try to eliminate any erosion, any heels, any high spots.” He testified that he was unable to do “any preparatory work to the bottom” of the pond in 2008 because he had been “informed that the park was closing and the beach wouldn’t be opened that year, and [his] job was being eliminated.” However, Lambert also explained that he did not rake the pond every year because “there were years when there was very little shifting on the bottom.” Subsequently, Lambert testified about the diving policies at the pond. He stated that diving had “never [been] allowed.” However, he admitted to seeing “people periodically dive * * * off of [the] [**8] wall on the pool area, [but] not during hours that [the pond was] in operation.”
The Events of July 10, 2008
Kenneth Henderson, a seasonal laborer for DEM who worked as a groundskeeper at the park in 2008, testified at trial that he was working on July 10, 2008. Henderson stated that he saw “about half a dozen” people swimming in the pond that day but did not tell them that swimming was prohibited because, in his words, “[he] had no authority.”
Laura Oliver and Carol Gear had also been at the park on July 10, 2008, and testified at trial. Oliver testified that on July 10 there were no lifeguards, lifeguard chairs, or buoy lines in the pond, and the fountain was off. Oliver said that she allowed her children to go swimming despite the “no swimming” signs “because there [had been] a write-up in the paper, and nobody told [them] different[ly].” She added that there were often “no swimming” signs in place, even when lifeguards were present and watching the swimmers. However, Oliver testified that a DEM employee, who she later learned was a groundskeeper, had told her children not to jump in the water. Oliver explained that she saw people jumping and “do[ing] all kinds of stuff” off the diving platform on July [**9] 10. However, she knew from experience that diving was not allowed in the pond because in previous years if someone [*485] dove into the water, then “lifeguards would be on top of it. If they kept doing it, [the lifeguards] would tell them they had to leave.” She added that she never saw anyone get hurt while diving prior to July 10. Oliver described Roy’s dive as “a belly flop kind of dive; not a complete dive.”
Gear testified that she had been to the pond to swim “[t]hree times” before July 10, 2008, and had seen people dive, but had never seen anyone injured from diving before Roy suffered his injury. Gear described Roy’s actions that she witnessed on July 10, stating: “He threw something on the ground, and [ran], like you run when you bowl, and then he just dove in.” She labeled Roy’s dive as a “[r]egular kind of dive.” She clarified that she would call it “a shallow dive.” She explained that “[i]t was more like he * * * just * * * put his head down and kind of went in. It wasn’t like a real dive like on a diving board.”
Hope Braybon, who accompanied Roy to the pond on July 10, also testified to the events of the day. Braybon stated that she watched Roy “jog” from the car in the parking lot and “d[i]ve in.” She testified [**10] that, as Roy was diving, she “was telling him not to dive over there * * * because it was shallow water.”
Roy was unable to testify at trial but his deposition was read into the record. Roy was six feet tall and twenty-nine years old at the time of the incident. Roy testified that on July 10 he had dropped Braybon, her daughter, and his children at the park and “they * * * walked towards the beach.” He recalled seeing “20 to 30 people, small children, adults, adolescent children in the middle of the pond” swimming, which indicated to him that the park was open. He testified that he “never saw a sign that said ‘[n]o [s]wimming.'” Roy further testified that, when he arrived at the park, he “walked over towards the corner [of the pond], * * * [a]nd * * * wasn’t going to jump in,” but, he described the day as “hot, * * * very hot. So, [he] figured * * * [he would] jump in.” He stated that he looked at the water and “[i]t looked deep enough.” He described the water as “murky” and said that he “definitely couldn’t see the bottom.” He explained that “if the water was too shallow, [he would] be able to see it.” Before jumping in, Roy returned to his car to put his things away and then he “walked down to the end[,] [**11] * * * dove in the water[,] and [he] broke [his] neck.” Roy described his dive as a “shallow dive, just like a normal, flat dive,” meaning, “the only parts that [he] would want to hit the water would be the * * * tops of [his] hand and [his] belly.” Roy testified that around July 2007 he dove in the same spot, and “[n]othing was ever said to [him].” Roy admitted that he knew there was soil erosion in the pond, and, consequently, that soil had been added to the pond in the past. Roy stated that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.”
The Jury Verdict and Posttrial Motions
After the close of evidence, both parties filed motions for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, and the trial justice denied both motions. Subsequently, the jury was charged on May 25, 2011. During the course of deliberations, the jury exchanged over fifty notes with the trial justice. On the morning of the third day of deliberations, the trial justice addressed the jury and asked the jurors to keep deliberating because she was “really confident that the eight [jurors were] going to be able to * * * reach a decision that is fair and just for everyone.”
[*486] On the fourth day of deliberations, [**12] the jury asked the court to “clarify if [six] jurors are for one party and [two] jurors are for another[,] [d]o the questions have to be answered in favor of the way the six jurors feel and the [other two jurors would] not be able to express their own feelings[?]” The trial justice responded that she was “not exactly sure what [they] [were] asking but the jury’s verdict must be unanimous with all [eight] [jurors] agreeing.” Later that day, the trial justice held a chambers conference at which she suggested to counsel that, in light of the jury’s note, the jury might be split six to two.
During the fifth day of deliberations, the jury asked the trial justice to reinstruct them that they needed to follow the instructions of law and not their emotions. After a series of conferences with juror No. 109 and the jury foreperson, individually, the trial justice excused juror No. 109. At approximately 3:50 p.m. that day, the jury sent a note to the trial justice that it could not come to a unanimous agreement. Approximately ten minutes later the trial justice responded: “Is there anything we can do to assist you?” The jury responded that “nothing else will make a difference” and indicated a six-to-one [**13] split. Thereafter, the trial justice released the jurors for the day and asked counsel to think of options and to determine from their respective clients whether they would accept a split verdict.
The following day–day six of deliberations–both parties agreed to accept a six-to-one split decision if the jury was unable to reach a unanimous verdict. The parties expressed that they “understood at the time that the jury would be sent to deliberate” and that if the jury “inform[ed] the [c]ourt that it could not reach a unanimous verdict, [the trial justice] would then disclose [to the jury] that the parties [had] agreed to accept a [six] to [one] split decision * * *.” Subsequently, the jury exchanged additional notes with the trial justice and returned for additional instructions on the Recreational Use Statute and the issue of liability, included as questions 1 and 2 on the verdict form. Thereafter, the jury indicated that it had reached a verdict.
The jury reached a unanimous verdict and found that the state had not “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity at the pond * * *” and therefore was not liable under question 1. However, the jury [**14] found that the state was liable under question 2 for “willfully or maliciously fail[ing] to guard against a non-obvious, latent dangerous condition, knowing that there existed a strong likelihood that a user of the swimming pond would suffer serious injury or death[.]” The jury rejected the assumption-of-the-risk defense and found that both parties were negligent and assigned a 50/50 split with “zero” damages. The trial justice then called counsel to sidebar where plaintiffs argued that the jurors were not following the instructions because they found in favor of them but awarded no damages; the state disagreed. The trial justice instructed the jury that they were required to award damages. At that time, the state moved for a mistrial “based on the inconsistencies of the answers to the questions on the verdict sheet”; plaintiffs objected, and the trial justice denied the motion. The jury then sent a note explaining that they had “reached a unanimous verdict [because] no money was awarded.” They explained that if they had to award damages, “part of [the] jury [would] have one answer [and] part [would] have another. In other words, [they would] have to begin again.” The trial justice clarified [**15] with the jury that they were “referring to the [six-to-one] split/vote” and then released the jury for the day.
[*487] After the jury was sent home, the trial justice held a chambers conference with counsel. The parties discussed four potential options to consider: (1) a mistrial; (2) accept a six-to-one verdict; (3) accept half of the verdict; or (4) allow the verdict to stand. On the seventh day of deliberations, plaintiffs made a motion for additur or, in the alternative, for a new trial on the issue of damages. The trial justice denied plaintiffs’ motion and offered the parties a choice of accepting a split verdict or a mistrial. Both parties agreed to accept a six-to-one split verdict. The trial justice notified the jury that the parties would accept a six-to-one verdict. The jury returned the verdict and answered “no” to questions 1 and 2–finding no liability on behalf of the state, and judgment entered.
Following the jury verdict, both parties made renewed motions for judgment as a matter of law. In support of its motion, the state argued that plaintiffs failed to establish the state’s liability under the Recreational Use Statute and that, as a matter of law, Roy’s conduct was so “highly [**16] dangerous” that “no duty was owed to him.” The plaintiffs argued that the state’s witnesses admitted sufficient facts at trial to establish the state’s liability as a matter of law under the Recreational Use Statute. Additionally, plaintiffs moved for a new trial on damages, or, in the alternative, a new trial on all the issues. The trial justice issued a written decision on March 26, 2013, denying both parties’ motions for judgment as a matter of law, and granting plaintiffs’ motion for a new trial on all the issues. The state timely appealed this decision, and plaintiffs filed a cross-appeal.
Parties’ Arguments on Appeal
On appeal, the state argues that the trial justice erred in refusing to apply the decisions in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987) and Bucki v. Hawkins, 914 A.2d 491 (R.I. 2007), which, the state contends, “stand for the proposition that the [s]tate owed no duty to Roy to protect him from an open and obvious natural condition * * *.” The state maintains that, “under the proper application of the Recreational Use Statute, the evidence fails to establish that the state willfully and/or maliciously failed to warn against a dangerous condition.” The state also argues that “Roy assumed the risk of injury by diving into murky water without first checking [**17] its depth” and that plaintiffs failed to prove the element of causation. Furthermore, the state contends that it is shielded from liability under the theory of discretionary immunity. The state also asserts that “the trial justice misconstrued material evidence and committed significant errors of law in granting plaintiffs’ motion for a new trial.” However, the state adds, if the matter is remanded for a new trial, “the statutory cap on damages should apply.”
In response, plaintiffs argue that the trial justice properly granted their motion for a new trial. The plaintiffs aver that they proved liability under the Recreational Use Statute and that the “open and obvious danger” rule articulated in Bucki, 914 A.2d at 496, is inapplicable here due to distinguishable facts. The plaintiffs maintain that Roy could not have “assumed the risk” under these facts as a matter of law and that plaintiffs proved proximate causation. Furthermore, plaintiffs contend that the trial justice and two motion justices properly applied the law and limited the state’s defenses with respect to governmental immunity and the damages cap. On cross-appeal, plaintiffs argue that the trial justice incorrectly denied their motions for additur, [**18] a new trial on the issue [*488] of damages only, and judgment as a matter of law. Additionally, plaintiffs argue that a new trial was warranted based on other legal errors made by the trial justice and that the second jury verdict was “the result of bias, prejudice, or passion.”
Because we conclude that the state owed no duty to Roy, we shall address only the state’s renewed motion for judgment as a matter of law.
Judgment as a Matter of Law
Standard of Review
[HN1] “In reviewing a trial justice’s decision on a motion for judgment as a matter of law, this Court is bound to follow the same rules and legal standards as govern the trial justice.” Hough v. McKiernan, 108 A.3d 1030, 1035 (R.I. 2015) (quoting Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006)). “The trial justice, and consequently this Court, must examine ‘the evidence in the light most favorable to the nonmoving party, without weighing the evidence or evaluating the credibility of witnesses, and draw from the record all reasonable inferences that support the position of the nonmoving party.'” Id. (quoting Perry, 890 A.2d at 467). Thus, a trial justice should enter judgment as a matter of law “when the evidence permits only one legitimate conclusion in regard to the outcome.” Id. (quoting Long v. Atlantic PBS, Inc., 681 A.2d 249, 252 (R.I. 1996)).
[HN2] The Rhode Island Recreational Use Statute, G.L. 1956 [**19] chapter 6 of title 32, limits the liability of landowners, declaring that one
“who either directly or indirectly invites or permits without charge any person to use that property for recreational purposes does not thereby:
“(1) Extend any assurance that the premises are safe for any purpose;
“(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor
“(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of omission of that person.” Section 32-6-3.
[HN3] The purpose of this statute “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for those purposes.” Section 32-6-1. In order to achieve this, “the [Recreational Use Statute] modifies the common law by treating users of public and private recreational properties as trespassers, thus greatly reducing the duty of care that owners owe to recreational users.” Symonds v. City of Pawtucket, 126 A.3d 421, 424 (R.I. 2015). As we have noted, “it is clear from the unambiguous language of the 1996 amendment [to the Recreational Use Statute] that the [L]egislature intended to include the state and municipalities among owners entitled to immunity [**20] under the statute.” Id. (quoting Pereira v. Fitzgerald, 21 A.3d 369, 373 (R.I. 2011)).3
3 In 1996, the General Assembly amended the definition of “owner” in G.L. 1956 § 32-6-2(3) to include the state and municipalities. P.L. 1996, ch. 234, § 1.
[HN4] Although the Recreational Use Statute limits liability, this limitation is not absolute. Section 32-6-5 provides, in relevant part: “(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists: (1) [f]or the willful or malicious failure to guard or [*489] warn against a dangerous condition, use, structure, or activity after discovering the user’s peril * * *.” “Thus, the Legislature declared that all people who use this state’s public recreational resources are classified as trespassers to whom no duty of care is owed, save to refrain from willful or malicious conduct as defined in the [Recreational Use Statute].” Berman v. Sitrin, 991 A.2d 1038, 1044 (R.I. 2010).
On appeal, the state argues that the evidence presented at trial did not establish that the state willfully and/or maliciously failed to warn against a dangerous condition. Specifically, the state argues that “there was no evidence of a substantial number of injuries flowing from a known dangerous condition”; that “the state did not fail to guard or warn against a dangerous condition, use, [**21] structure, or activity”; and that “no witness made testimonial admissions sufficient to extinguish protection under the Recreational Use Statute.” Conversely, plaintiffs argue that they proved liability under the Recreational Use Statute because the evidence supported a finding that the state “breached the duty to refrain from willful and malicious failures to guard and warn against known latent conditions.” In support of this argument, plaintiffs rely on Berman.
In Berman, 991 A.2d at 1042, the plaintiff was walking on the Newport Cliff Walk when the ground “gave way,” causing the plaintiff to suffer injuries that rendered him a quadriplegic. This Court specifically noted that this was “not * * * a case in which a visitor came too close to the edge of a cliff and fell off, as tragic as that would be.” Id. at 1049. Rather, “the events leading to [the plaintiff’s] tragic injury were caused by latent defects in the structure of the Cliff Walk that [were] not obvious to the occasional visitor.” Id. This Court explained that “the record before [it was] replete with evidence demonstrating that * * * the city knew that the forces of natural erosion were taking a toll on the Cliff Walk.” Id. at 1050. Thus, this Court concluded that “because [**22] of the multiple incidents of death and grievous injury * * * the city [could] not successfully defend [the plaintiff’s] claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Id. at 1051. Consequently, this Court held that “the immunity provided by the [Recreational Use Statute] [was] not available to defendant City of Newport, in the context of the Cliff Walk” because a “fact-finder reasonably could find that * * * the city voluntarily and intentionally failed to guard against the dangerous condition, knowing that there existed a strong likelihood that a visitor to the Cliff Walk would suffer serious injury or death.” Id. at 1052, 1053.
The plaintiffs argue that this case is comparable to Berman because the “record is replete with evidence of DEM’s admitted knowledge of numerous unique dangerous conditions, including shallow water in areas where users had been known to dive from the park’s structures, and the historic presence of the sandbar in the same (normally deeper) area.” The plaintiffs maintain that the “shallow water and dangers of diving at this particular facility were not obvious to users * * * yet were in fact known to DEM.”
In the case at bar, [**23] although the state admitted knowledge of the unique features of the pond, Roy also admitted that he was aware of the danger of making a dive into shallow water and that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.” He confirmed that he knew the soil in the pond was eroding and, consequently, that soil was added to the pond. We would note that, examining the evidence in the light most favorable to the plaintiffs as we [*490] must, the actions of the defendants are a far cry from the egregious conduct attributed to the City of Newport in Berman. There, we held that “[i]t is because of the multiple incidents of death and grievous injury that we conclude that the city may not successfully defend this claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Berman, 991 A.2d at 1051. Here, there is only one indication in the record of a relatively minor injury reported several days before Roy’s catastrophic injuries. Therefore, we are of the opinion that, under these circumstances, this case is distinguishable from Berman. There is no evidence to support a finding that the state “willful[ly] or malicious[ly] fail[ed] to guard or warn against a dangerous condition, [**24] use, structure, or activity after discovering [a] user’s peril * * *.” See § 32-6-5(a)(1). Thus, the state’s motion for judgment as a matter of law should have been granted.
Moreover, even if the Recreational Use Statute did not apply, this Court has held that [HN5] the danger of diving in and of itself is an “open and obvious” danger, Bucki, 914 A.2d at 496, one of “common knowledge,” Banks, 522 A.2d at 1225, such that a landowner does not owe a duty of care to warn individuals who enter the premises. In Banks, 522 A.2d at 1224, the plaintiff filed a negligence claim for injuries he suffered after diving off a railing on the defendant’s property into the Newport Harbor. This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.” Id. at 1225. Similarly, in Bucki, 914 A.2d at 493, the plaintiff filed a negligence claim for injuries he sustained after diving into a lake while he was a guest at one defendant’s waterfront property. This Court concluded that [**25] the plaintiff’s harm was foreseeable but again held that the defendants did not have a duty to warn of the dangers of diving. Id. at 496-97. This Court stated that:
“It is only reasonable for a diver, who cannot ascertain the water’s depth by looking, to further inspect the area before diving into dark water. The danger of diving into shallow water was open and obvious to a twenty-four-year-old man, regardless of whether a sign was erected alerting him to the danger.” Id. at 496.
Thus, this Court held that “as a matter of law, [the] plaintiff must be held to have had knowledge and an appreciation of this risk [because][,] [u]ltimately, it was [the] plaintiff’s own behavior that caused his injuries.” Id.
We also note that other courts have reached similar conclusions. For example, the Maryland Court of Appeals commented that:
“Bodies of water like the stream involved in this case have historically and consistently been afforded distinctive treatment in the law relating to landowners’ liability. The necessity, or at least desirability, of maintaining such bodies of water, coupled with known inherent dangers and the difficulty of effectively protecting against those dangers, have led courts across the country to pronounce [**26] water an ‘open and obvious danger,’ for which no warning or special precaution is ordinarily needed.” Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 560 A.2d 1130, 1134-35 (Md. 1989).
[*491] In a case affirming the grant of summary judgment in favor of the Chicago Park District against swimmers who were injured when they dove into Lake Michigan from concrete seawalls, Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826, 827, 828, 839, 216 Ill. Dec. 568 (Ill. 1996), the Illinois Supreme Court pronounced:
“In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight; people are expected to appreciate and avoid obvious risks.” Id. at 832.
The Illinois Supreme Court further reasoned that “bodies of water are ordinarily considered to be open and obvious conditions and thereby carry their own warning of possible danger.” Id. at 835. This is clearly the position adopted by this Court in Bucki, 914 A.2d at 497, where this Court stated that “[w]e are of the opinion that in this case [the] defendant did not owe [the] plaintiff a duty of care, but, rather, that [the] plaintiff voluntarily exposed himself to the perils of an open and obvious danger.” [**27] Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law.
For the reasons stated herein, we vacate the judgment of the Superior Court and remand the case with instructions to enter judgment in favor of the state. The record shall be returned to the Superior Court.
Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)
William Todd Childress, By and Through his parents, Ira Childress and Joyce Childress, and Ira Childress and Joyce Childress, individually, Plaintiffs-Appellants, v. Madison County, Tennessee, The Madison County Board of Education, and the Young Men’s Christian Association, Jackson, Tennessee, a/k/a Y.M.C.A., Defendants-Appellees
[NO NUMBER IN ORIGINAL]
Court of Appeals of Tennessee, Western Section
777 S.W.2d 1; 1989 Tenn. App. LEXIS 48
January 24, 1989, Filed
SUBSEQUENT HISTORY: Application for Permission to Appeal Denied August 7, 1989.
PRIOR HISTORY: [**1] From the Circuit Court of Madison County, Tennessee, MADISON LAW NO. 5, The Honorable Andrew T. Taylor, Judge
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
COUNSEL: David Hardee, Linda L. Moore, Jackson, Attorneys for Plaintiffs-Appellants.
J. Tim Edwards, Memphis, Glassman, Jeter & Edwards, Attorney for Defendants-Appellees.
JUDGES: Highers, J. Nearn, Sp. J., concurs. Tomlin, P.J., W.S., concurs separately.
OPINION BY: HIGHERS
[*2] The plaintiffs, Ira Childress and Joyce Childress, brought this action individually and on behalf of their son, William Todd Childress, against Madison County and the Madison County Board of Education, alleging negligence which proximately caused personal injury to their son, a mentally handicapped student in Special Education at South Side High School. After a bench trial, the court found that the evidence did not preponderate in favor of the contentions of the plaintiffs. Plaintiffs are appealing from a judgment for the defendants.
At the time of the accident, William Todd Childress was a twenty-year old, nonverbal, severely retarded student. He traveled regularly with his class to the Y.M.C.A. to use recreational facilities, including a swimming pool. 1 [**2] The trips were supervised by a teacher and an aide, both employees of Madison County, and while at the pool, by a lifeguard employed by the Y.M.C.A.
1 The Y.M.C.A. was originally a party defendant, but was dismissed before trial and is not involved in this appeal.
Some of the trips were to allow students to train for the Special Olympics. Childress’ event consisted of walking the width of the shallow end of the swimming pool and handing a floating ball to an attendant.
On April 11, 1984, near the end of one of these training excursions to the Y.M.C.A., Childress was found on the floor of the pool at the point where the pool slopes from the shallow to the deep end. He was retrieved by the lifeguard and, after resuscitation began to breathe. He expelled water, vomited, and coughed, but otherwise appeared normal. An ambulance was called and Childress was taken to the hospital and admitted. Childress sustained injuries and incurred medical expenses as a result of this incident.
[*3] The teacher testified that there were three people who were responsible for observing the class — the teacher, the aide, and the lifeguard. The teacher testified that she was at the shallow end of the [**3] pool, the aide was on the other side of the pool, and the lifeguard was in and out of the pool at various points while offering instruction to students.
On this occasion the teacher stated that she was working with Childress. She described the events leading to the accident as follows:
Q. And toward the end of that hour what specifically were you doing with the children?
A. Well, the last thing that I did before I got out of the pool was work with Todd going back and forth across the pool.
Q. He would be walking back and forth across the pool?
Q. And when you ceased that activity, what did you do?
A. I told Todd to get out of the water and told all of the other children to get out of the water.
Q. Did Todd get out of the water?
A. I did not see Todd get out of the water. As the children were exiting the pool another student jumped in at the shallow end, who was a swimmer, to swim a lap and I walked along the edge of the pool as he swam to the deep end.
Q. Did you ever again see Todd after you told him to get out of the pool until he was found underwater?
* * * *
Q. Do you know who was watching Todd?
Q. Do you know if anybody was watching [**4] Todd?
A. We all had joint responsibility for watching the students.
Q. Do you know if anyone was watching Todd as he was getting out of the pool?
A. I would have no way of knowing.
In light of the testimony, we are of the opinion that the evidence preponderates against a finding of no negligence. [HN1] In non-jury matters the findings of fact of the trial court come to this court with a presumption of correctness and are reviewed de novo. Unless the evidence preponderates against the findings, we must affirm. T.R.A.P. 13(d). The trial court’s judgment in this case indicates that he found no negligence on the part of Madison County or the Madison County Board of Education. The proof shows, however, that the teacher and the aide were responsible for watching the students; that the teacher ordered students out of the pool, but did not actually see Childress exit; that she became involved in observing another student, and did not know whether Childress left the pool; and that she did not know whether anyone was watching Childress during the crucial period when he apparently went into water that was over his head, thereby sustaining the injuries and damages which gave rise to the complaint. [**5] It further appears that each of the attendants was involved in small group instruction and that no one actually scanned the pool in order to see whether the group as a whole had obeyed the instructions to leave the area. But for the fact that no one watched the pool without the distractions of other instruction, Childress would not have been injured.
Under these circumstances, we cannot say that plaintiffs have failed to make out a case by the greater weight or preponderance of the evidence.
The defendants have raised a further issue in this case, however, that the mother executed a release of all liability of these defendants. It is their contention that even if they were guilty of negligence the action is barred by the release of claims executed by the mother individually and on behalf of her son.
[HN2] It is well settled in this state that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960). This [*4] rule is subject to exception. A party cannot contract away his liability for willful or gross negligence. [**6] Memphis & Charleston Railroad Co. v. Jones, 39 Tenn. (2 Head) 517 (1859). Neither can a party contract away liability if the duty under which he acts is a public one. Cincinnati, New Orleans & Texas Pacific Railway Co. v. Saulsbury, 115 Tenn. 402, 90 S.W. 624, 626 (1905); Carolina, Clinchfield & Ohio Railway Co. v. Unaka Springs Lumber Co., 130 Tenn. 354, 170 S.W. 591, 594 (1914); Hartford Fire Insurance Co. v. Chicago, Milwaukee & St. Paul Railway Co., 175 U.S. 91, 20 S. Ct. 33, 44 L. Ed. 84 (1899).
[HN3] The existence of a public duty which would disallow giving effect to an exculpatory provision is determined by looking at several factors. If the service provided is the type which may generally be subject to public regulation then the duty probably exists. Smith v. Southern Bell, 364 S.W.2d at 958. Other factors include the degree to which the service is of practical necessity for some members of the public, whether the service is offered to any member of the public who seeks it or qualifies for it, whether one party has greater bargaining power than [**7] members of the general public, whether in exercising that bargaining power, the party presents a standardized “adhesion” contract making no provision whereby protection against negligence may be obtained, or whether the person or property of one party is placed under the control of the other. Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977) (adopting the rule of Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (1963)). [HN4] Particularly offensive in Tennessee are exculpation contracts executed by persons in professional vocations. Olson, 558 S.W.2d at 432.
[HN5] Persons and businesses which normally operate under a public duty are not bound by the exception and can execute valid exculpation contracts when the transaction in question is not under that public duty. Thus it has been held that a telephone company can execute such a contract as to its advertising services, Smith v. Southern Bell, 51 Tenn. App. 146, 364 S.W.2d 952, 957-958, citing Mitchell v. Southwestern Bell Telephone Co., 298 S.W.2d 520 (Mo. App. 1957), and a common carrier may contract [**8] against liability when executing a lease agreement, Cincinnati, N.O. & T.P.R.Co. v. Saulsbury, 90 S.W. at 626.
Analyzing the facts of this case under the foregoing rules, we find that the Special Olympics generally, and the services provided in this case specifically, are governed by the general rule and do not fall under the exception prohibiting exculpatory clauses. Although there are a number of circumstances which would otherwise bring the Special Olympics under the exceptions related to professional or public services, our analysis of all the cases cited reveals that the rule was intended to operate primarily in the marketplace. The Olson opinion in analyzing the public duty exception refers to “business,” “bargaining strength” in “economic settings,” “purchasers,” and payment of “additional fees to obtain protection against negligence” implying that there were fees in the first place. We are not here saying that the touchstone of the analysis is the existence or absence of business motivations, or pecuniary exchange. But when those considerations which are tied to economic factors are eliminated from the analysis, in this case by the absence [**9] of any business motivations, the remaining factors are insufficient to bring this case under the exception. Having determined that the [HN6] exculpatory clauses are generally valid as to the Special Olympics, we look now to the provisions of the clause used in this case.
The exculpatory language in this case is a part of a form document entitled “Tennessee Special Olympics Parental/Medical Release Form.” It is printed on an 8 1/2″ X 11″ sheet divided into three sections, the right half of the page being a medical release to be completed by a physician or registered nurse. The left half of the page is divided into two sections, the top being for completion by parents or teachers requiring statistical date such as age, clothing sizes, and addresses of the participant. [*5] The bottom section is entitled “Parent/Guardian Release.” As completed in the case at bar, the release is as follows:
I hereby give permission for the entrant named above to participate in the Special Olympics program — a sports-training, recreation, and competitive athletic program for mentally retarded children and adults.
I represent and warrant to you that [**10] the entrant is physically and mentally able to participate in Special Olympics, and I submit herewith a subscribed medical certificate.
Consent to Treatment:
You are authorized on my behalf and at my account to take such measures and arrange for such medical and hospital treatment as you may deem advisable for the health and well-being of the entrant without the need for further consent or permission.
Release of Claim:
I, the undersigned, individually and on behalf of the above-named entrant, acknowledge that the entrant will be using facilities at his/her own risk. I, on my own behalf, hereby release, discharge and indemnify Special Olympics, its directors, officers, employees, physicians, agents, and all volunteer personnel from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event. (Emphasis Supplied)
Permission to Publish:
Permission is hereby granted to use the name, likeness, voice and words of the entrant in television, radio, films, newspapers, magazines and other media, and in any form not heretofore described for the purposes and activities of Special Olympics [**11] and in appealing for funds to support such activities.
Mrs. Ira Childress (subscribed)
Relationship to Entrant
The emphasized language is at issue. The trial judge was of the opinion that Mrs. Childress “had executed a document releasing these defendants from liabilities as a result of any injuries that might occur in connection with the Special Olympics program.” This conclusion is in part correct.
[HN7] Exculpatory clauses purporting to contract against liability for intentional conduct, recklessness or gross negligence are unenforceable. See Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985) Memphis & Charleston Railroad Co., supra. We find that the defendants in this case have not exceeded the bounds of simple negligence, even in light of the higher standard of care under which they operate due to the students’ mental disability. See 65A C.J.S. Negligence § 141 (1966).
The parties in this case are the plaintiffs, Todd Childress, by his parents, and his mother, Joyce Childress, and his father, Ira Childress, individually; and the defendants, Madison [**12] County, and the Madison County Board of Education. The defendants were at the time of the incident in question acting through the teacher and her aide as agents or volunteers of the Special Olympics. The incident occurred during a Special Olympics training session, which the evidence shows was a “Special Olympics event” within the meaning of that phrase as used in the release form. While the evidence did show that there had been trips to the Y.M.C.A. pool which were independent of Special Olympics training, it is clear that the objective of this particular trip was to train for the Special Olympics and during this trip the teachers acted within the purview of duties they assumed as agents and/or volunteers of Special Olympics. Therefore, any liability for any actions taken must be analyzed as the actions of agents or volunteers of the Special Olympics as governed by the release form.
[*6] The plaintiffs assert on appeal that the evidence established that Mrs. Childress had signed a number of “permission slips” and that in executing the release form, Mrs. Childress thought that she was merely signing another permission slip. We find this assertion unsupportable by the evidence. [**13] The evidence shows that the permission slips which Mrs. Childress signed were mimeographed copies of a handwritten form. The release form was not mimeographed and was copied from a printed document not handwritten, not even typed. Besides the difference facially, the content of the release is very different from the content of the permission slips. Mrs. Childress signed the document, and cannot, under these circumstances assert she thought she was signing a permission slip and not a release. Even if that were a valid assertion, it would make no difference in the outcome of the case. [HN8] Although notice of an exculpatory clause is a prerequisite to its validity, Dodge v. Nashville Chattanooga & St. Louis Railway Co., 142 Tenn. 20, 215 S.W. 274 (1919), a party’s failure to read does not constitute a lack of notice to that party, Dixon v. Manier, 545 S.W.2d 948, 949 (Tenn. App. 1976).
Of the plaintiffs, only Mrs. Childress, Todd’s mother signed the release form. The language, quoted above, is clear and unambiguous. Mrs. Childress acknowledged that Todd would be participating at his own risk. She further agreed to “release, discharge and [**14] indemnify Special Olympics, its . . . agents, and all volunteer personnel.” Therefore, the trial judge was correct in dismissing this case as to Mrs. Childress individually.
Mr. Childress did not himself sign the release form and there is no indication in the language of the form or in the manner in which Mrs. Childress signed that she did in fact, or was even authorized to, release or discharge the Special Olympics on Mr. Childress’ behalf. However, Mrs. Childress did clearly agree to indemnify the Special Olympics “from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event.” Therefore, to the extent the defendants are liable to Mr. Childress, Mrs. Childress, as indemnitor, must compensate him.
Neither did the remaining plaintiff, Todd Childress, sign the release form himself. Had he done so, being an incompetent, incapable of understanding the nature of his action, the execution could not be given effect. See 44 C.J.S. Insane Persons § 49 (1945). But, according to the language of the release, Mrs. Childress, as his mother and natural parent, acknowledged on Todd’s behalf [**15] that he would be participating at his own risk.
[HN9] The status of guardians of incompetent persons is similar to that of guardians of infants, especially in view of courts of equity. Id. The general rule is that a guardian may not waive the rights of an infant or an incompetent. 39 Am. Jur.2d, Guardian & Ward § 102 (1968); 42 Am. Jur.2d, Infants § 152 (1969). Specifically, [HN10] the Supreme Court of Tennessee long ago stated that a guardian cannot settle an existing claim apart from court approval or statutory authority. Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10 (1836). Spitzer v. Knoxville Iron, Co., 133 Tenn. 217, 180 S.W. 163 (1915). Tune v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (MD Tenn. 1963). It has also been held that [HN11] a guardian may not waive the statutory requirements for service of process on an infant or incompetent by accepting service of process on himself alone. Winchester v. Winchester, 38 Tenn. (1 Head) 460 (1858).
The courts of other states have recognized this general rule in a number of circumstances including those cited above. See e.g. Gibson v. Anderson, 265 Ala. 553, 92 So.2d 692, 695 (1956) [**16] (legal guardian’s acts do not estop ward from asserting rights in property); Ortman v. Kane, 389 Ill. 613, 60 N.E.2d 93, 98 (1945) (guardian cannot waive tender requirements of land sale contract entered into by ward prior to incompetency); Stockman v. City of South Portland, 147 Me 376, 87 A.2d 679 (1952) (guardian cannot waive ward’s property tax exemption); Sharp v. State, 240 Miss. 629, 127 So.2d 865, 90 A.L.R.2d 284 (1961) [*7] (guardian cannot waive statutory requirements for service of process on ward); Jones v. Dressel, 623 P.2d 370 (Colo. 1981) (ratification by parent of contract executed by child does not bind child); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982) (guardian cannot settle personal injury claim for ward without court approval); Natural Father v. United Methodist Children’s Home, 418 So.2d 807 (Miss. 1982) (infant not bound by evidentiary admissions of parent); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 519 A.2d 893 (1986) (guardian [**17] cannot settle personal injury claim for ward without court approval).
In Mississippi, the rule was expressed in broad terms by the Supreme Court in Khoury v. Saik, 203 Miss. 155, 33 So.2d 616, 618 (1948): “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them.” See also Parker v. Smith, 150 Miss. 849, 117 So. 249, 250 (1928).
The Supreme Court of Connecticut has specifically held that [HN12] an agreement, signed by one of the parents of a minor as a condition to his being allowed to attend a camp, waiving the minor’s claims against a camp for damages in the event of an injury was ineffective to waive the rights of the minor against the defendant camp. Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn. Sup. 38, 143 A.2d 466, 468 (1958). The Supreme Court of Maine reached the same conclusion in Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979). In Doyle, the court held that if the agreement in question were a release, it would be ineffective because a parent cannot release the child’s [**18] action.
We believe the rule stated above is in keeping with the protection which Tennessee has afforded to the rights of infants and minors in other situations. We, therefore, hold that Mrs. Childress could not execute a valid release or exculpatory clause as to the rights of her son against the Special Olympics or anyone else, and to the extent the parties to the release attempted and intended to do so, the release is void.
The indemnity provisions of the release are on a similar footing. [HN13] Indemnification agreements executed by a parent or guardian in favor of tort feasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian. See Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961). “Clearly, a parent who has placed himself in the position of indemnitor will be a dubious champion of his infant child’s rights.” Id. See also Ohio Casualty Insurance Co. v. Mallison, 223 Or 406, 354 P.2d 800, 802-803 (1960). We are aware that the indemnity [**19] agreements in the two cases just cited were executed after the cause of action had arisen. This fact does not change the rule, and [HN14] indemnity provisions executed by the parent prior to a cause of action in favor of a child cannot be given effect. Were the rule otherwise, it would circumvent the rule regarding exculpatory clauses and the policy of affording protection in the law to the rights of those who are unable effectively to protect those rights themselves.
We do not deny that there are good and logical reasons for giving effect to exculpatory and indemnification clauses executed by parents and guardians on behalf of infants and incompetents. Risk is inherent in many activities that make the lives of children richer. A world without risk would be an impoverished world indeed. As Helen Keller well said, “Security is mostly a superstition. It does not exist in nature, nor do the children of men as a whole experience it. Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure or nothing.” Partnow, Quotable Woman, 173 (1977). Ultimately, this case is a determination of who must bear the burden of the risk of injury to infants and minors.
[**20] It is not our intention, nor do we feel the result of this case will be, to put a chill on activities such as the Special Olympics. [HN15] The law is clear that a guardian cannot on behalf of an infant or incompetent, exculpate or indemnify against liability those [*8] organizations which sponsor activities for children and the mentally disabled. If this rule of law is other than as it should be, we feel the remedy is with the Supreme Court or the legislature.
The judgment of the trial court is affirmed as to Joyce Childress individually, and her case is dismissed. As to Ira Childress individually, and William Todd, by and through his parents, Ira Childress and Joyce Childress, this case is reversed and remanded for such further proceedings as may be required. Costs on appeal are assessed against appellees.
CONCUR BY: TOMLIN
SEPARATE CONCURRING OPINION
TOMLIN, P.J., W.S.
I readily concur in the excellent opinion written by my colleague. In addition, I would hold that even if the law in this state was to the effect that Mrs. [**21] Childress could execute a valid release as to the rights of her son, the release, as executed, as I interpret it, attempts to release only the mother’s rights and not those of her son. For instance, the first sentence, acknowledging that young Childress was using the facilities at his own risk, begins with the language: “I, the undersigned, individually and on behalf of the above-named entrant . . . .” [emphasis added] However, the language purporting to release the Special Olympics and others reads as follows: “I, on my own behalf, hereby release, discharge and indemnify . . . .” [emphasis added] It is obvious that the language last used purports only to release the rights of the “undersigned,” i.e., Mrs. Childress, and not those of her handicapped son.
Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.Posted: August 15, 2016
Willful and Wanton actions by a defendant are hard to prove unless the defendant actually did something. Mere failure to do something is rarely a willful and wanton act; it requires an act to prove.
State: Ohio, Court of Appeals of Ohio, Eleventh Appellate District, Portage County
Plaintiff: Robert Bishop, Executor of the Estate of Eric E. Bishop, Deceased, et al.,
Defendant: Nelson Ledges Quarry Park, Limited, et al.,
Plaintiff Claims: The trial court erred in failing to apply the standards for determination of motions for summary judgment. The trial court erred in granting summary judgment in favor of appellee Nelson Ledges Quarry Park, Ltd. based on alleged lack of possession or control of leased premises. The trial court erred in granting summary judgment for appellees on the ground that a valid release executed by Eric Bishop released appellees from liability.”
Defendant Defenses: Release
Holding: For the Defendant
The deceased was an 18-year-old man who went swimming at the plaintiff’s swimming area with several other friends. Nelson Ledges is like many swimming “holes” in Ohio, old quarries that have flooded or dammed areas that are privately owned and turned into swimming, camping and boating recreation areas. They are open to the public, like this one, for a fee. Here the fee was $5.00 per person.
Upon arriving at the defendants, the decedent and his friends paid their fee and signed a release. From the description, the release might have been on a sign-in sheet. Besides being on a sign-in sheet with multiple signatures, it was poorly written.
The deceased and his friends skipped the beach where a life guard was located and went to another area that people did swim. The deceased and a few friends swam out to an island; however, the deceased did not make it, drowning 15’ from the island shore.
The decedent’s estate sued. The defendants filed a motion for summary judgment, which was granted. The trial court held:
That, even when reviewing all of the evidence in the light most favorable to the plaintiff, including the report of Tom Griffiths, defendants’ conduct did not rise to a level of reckless, willful or wanton conduct, but at most, suggested there may be a genuine issue of material fact as to negligence. 3) The waiver was valid, as a matter of law, thus, Eric waived all claims of negligence, and Bishop was barred from recovering on the wrongful death claim.
The plaintiff’s appealed.
Analysis: making sense of the law based on these facts.
The court first set forth the requirements to prove a wrongful-death claim.
1) a wrongful act, neglect or default of defendant which proximately caused the death and which would have entitled the decedent to maintain an action and recover damages if death had not ensued; 2) that a decedent was survived by a spouse, children, parents, or other next of kin; and 3) that the survivors suffered damages by reasons of the wrongful death.
Than the Court took the arguments out of order, from the plaintiff’s appeal, starting with the validity of the release. (Ohio’s law is probably the most supportive of all states on release law.)
It is well-settled in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor’s acts of negligence, but not for his willful or wanton misconduct.
Clauses limiting liability shall ordinarily be construed strictly against the drafting party. Moreover, matters involving the interpretation of contract terms, when such terms are unambiguous, are questions of law.
The issue then was whether the acts of the defendants were willful and wanton, which would void the release. The court first looked at the release which it found wanting to an extent. “While inartfully drafted, the sheet Eric signed is clearly labeled at the top as a “Liability Waiver Form” in bold type.”
The court followed up a review of the release with this statement.
…although “the better practice would certainly be to expressly state the word ‘negligence’ somewhere in the exculpatory provision the absence of that term does not automatically render the provision fatally flawed.
The plaintiff also argued the release was no clear because the type was small. However, the court found this argument not to be valid under Ohio’s law and not an issue in this case.
Ohio has no such provisions. While we agree in broad principle that contract provisions, particularly those which purport to waive liability, should be printed in type large enough for a person of normal vision to read easily, the waiver in the case at bar satisfies these requirements. As we already mentioned, we find the terms of the waiver in this case were sufficiently clear to put the person signing it on notice. We agree with the trial court that Eric effectively waived all claims based on negligence by signing the waiver form. Thus, Bishop’s third assignment of error is without merit.
The court found the release to be valid and blocked the negligence claims of the plaintiff’s. The court then looked at the plaintiff’s argument that the actions of the defendants were willful and wanton.
Willful and wanton misconduct has been defined by the Ohio Supreme Court as the equivalent to reckless conduct. An actor’s conduct is reckless when “he does an act or intentionally fails to do an act which it is his duty *** to do, knowing or having reason to know of facts which could lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” “An act is negligent if it ‘falls below a standard established by the law for the protection of others against unreasonable risk of harm.” While the act must be intended by the actor to be reckless, “the actor does not intend to cause the harm which results from it.”
Consequently, the court found the actions did not rise to the level of being willful and wanton.
The plaintiff also argued, through its expert witness that the release was void for violating several state and county rules and regulations. The court spent a fair amount of time reviewing this and basically said not a chance.
The first regulations were not in place at the time of the accident, so they could not be used to prove negligence. “This court has held that “subsequent remedial measures are not admissible to prove negligence or culpable conduct in connection with the event at issue.”
The next issue was the health department of the county where the accident occurred, based upon a state statute issued regulations requiring additional lifeguards and life boats. The court again through this out because the statute did not require it, and the health department did not have statutory requirement to issue safety rules. (This section seemed down right fishy!)
A plain reading of both statutes clearly indicates that neither expressly delegates to public health departments the authority to regulate public swimming areas. Moreover, even if we were to presume that public swimming areas fell under the ambit of the more general authority of R.C. 3709.21, the authority to regulate under this statute is limited only to public health matters, and not matters of public safety.
The court then when back and looked at the willful and wanton conduct issue because the decedent was a business invitee under Ohio’s Land Owner Liability laws.
The threshold issue in determining willful and wanton misconduct is to determine what legal duty Kelley owed Eric as a visitor to the park. Since Eric paid an admission charge to Kelley for the purpose of swimming at the park, it is clear that Eric was a business invitee on the day of his drowning. The Supreme Court of Ohio has defined a business invitee as “one rightfully on the premises of another for the purposes in which the possessor of the premises has a beneficial interest.”
A landowner owes a business invitee the duty to exercise ordinary care and to maintain the premises in a safe condition.
Under common law, the duty owed by an owner of a premises to a business invitee is to “exercise ordinary care and to protect [the invitee] by maintaining the premises in a safe condition.
Again, the court could not find the actions of the defendants amounted to willful and wanton care.
The difference between negligence and willfulness is a difference in kind and not merely a difference in degree *** in order to establish wantonness; the conduct must be supported by evidence that shows a disposition to perversity, such as acts of stubbornness, obstinacy or persistency in opposing that which is right, reasonable, correct or generally accepted as a course to follow in protecting the safety of others”) (emphasis added). Though the circumstances surrounding Eric’s death are, indeed, unfortunate, “willful conduct implies design, set purpose, intention, or deliberation,” and “wanton conduct comprehends an entire absence of all care for the safety of others and a complete indifference to the consequences of the allegedly negligent act.”
There were two dissenting opinions in the case. Both dissenting judges approved the majority’s reasoning in counts one and three of the opinion. However, they both found fault with the second count. The second issue was the requirements by the state to have more lifeguards and a boat on the water. One found the way the argument was raised was insufficient; the second found that there was a genuine issue of fact.
So Now What?
You know you have a bad release when an appellate court tells you so. In this case the defendant squeaked by and still won. The release language needed to be corrected, by an attorney. The release needed to be in larger print and now as a sign-in sheet but as a proper release. The decision also mentioned the decedent, and his friends were not given a copy of the release.
The other issue was the rules adopted by the county and the state. It does not matter who adopts the rules, State, County or if labeled standards groups of people, if they require you to operate a different way, you better change your ways. Here two judges felt the case should be sent back to trial, even though the way the rules were implemented was declared invalid by the majority.
You may not have the luxury of having a court tell you those rules you can ignore. If it is issued by someone with a seal in the letterhead, you better follow it.
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Robert Bishop, Executor of the Estate of Eric E. Bishop, Deceased, et al., Plaintiffs-Appellants, – vs – Nelson Ledges Quarry Park, Limited, et al., Defendants-Appellees.
CASE NO. 2004-P-0008
COURT OF APPEALS OF OHIO, ELEVENTH APPELLATE DISTRICT, PORTAGE COUNTY
2005-Ohio-2656; 2005 Ohio App. LEXIS 2504
May 27, 2005, Decided
COUNSEL: J. W. Fodor, Warren, OH (For Plaintiffs-Appellants).
James T. Millican, II, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH (For Defendants-Appellees).
JUDGES: DIANE V. GRENDELL, J. DONALD R. FORD, P.J., concurs with a Concurring Opinion. CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
OPINION BY: DIANE V. GRENDELL
DIANE V. GRENDELL, J.
[*P1] Plaintiff-appellant, Robert Bishop (“Bishop”), appeals from the judgment of the Portage County Common Pleas Court granting summary judgment in favor of defendants-appellees, Nelson Ledges Quarry Park, Ltd. (“Nelson Ledges”) and Evan Kelley (“Kelley”). We affirm the decision of the trial court.
[*P2] The appeal before this court arises from the tragic drowning death of Eric Bishop (“Eric”), which occurred at Nelson Ledges Quarry Park (“the park”) on July 31, 2000.
[*P3] The park is a campground, situated on approximately 110 acres, and includes a 30 acre swimming lake for its patrons. The park is owned by Nelson Ledges, an Ohio Limited Liability Corporation, owned by Joretta (“Joretta”) [**2] and Glenn (“Glenn”) Frohring. The park is operated by J&E Management, (“J&E”), a sole proprietorship owned and operated by Kelley, Joretta’s son and Glenn’s stepson.
[*P4] The relevant facts of the incident are as follows. On the afternoon of July 31, 2000, Eric and five of his friends came to Nelson Ledges to swim. Upon entry to the park, each vehicle is stopped at the gate. A fee of $ 5 is collected from each visitor and each visitor is required by a park employee to sign a sign-in sheet, containing a waiver of liability clause, before entry to the park is granted. If some of the visitors are children, their parent, or another responsible adult, is required to sign the form.
[*P5] The top portion of the sign-in sheet contains a waiver of liability statement in print which fits within the top approximately two-and-a-half to three inches of the sheet, including margin spaces, with rectangular spaces for the signatures of park patrons contained below. The sign-in sheet is kept with park employees. The waiver language at the top of the sign-in sheet, states as follows:
NELSON LEDGES QUARRY PARK LIABILITY WAIVER FORM
Persons under 18 years of age must have an adult/guardian [**3] sign for them
CUSTOMERS AND COMPANY AGREE: When you enter Nelson Ledges Quarry Park, LLC, you agree that it is at your sole risk; that you will abide by all the park rules; that you will retain care and control of your car: its parts and contents. Company is not responsible for your car, articles left in your car, loss of use; all liability for any loss including but not limited to, any loss arising from bodily injury, personal injury or drowning. (Emphasis added). We the company do not accept responsibility of any personal injury or loss caused due to the influence of alcohol or other mind altering substances, or food consumed from private vendors. NO ILLEGAL SUBSTANCES ARE PERMITTED IN THE CAMPGROUND. I/We hearby (sic) release Nelson Ledges Quarry Park LLC and J&E Management from any liability whatsoever arising from use of the park. No employee may modify any of the terms herein. 1
1 The language of the waiver is reproduced verbatim. No attempt is made herein to reproduce the type or font size as they actually appear on the sign-in sheet. This is a matter of argument in the respective briefs submitted to this court.
[*P6] [**4] It is undisputed that Eric, who was eighteen years of age, and his friends all signed the sheet prior to their admission to the park on the day of the incident. Once inside the park, Eric and his friends decided not to go to the designated beach area, but instead decided to go to another area, called the “stony outcropping” or alternatively, the “drive-down area”. There is a small island located in the water about 40 to 50 yards from the shore of the “drive down” area. Shortly after arriving, Eric and two of his friends decided to swim out to the island.
[*P7] Eric began to experience difficulty about 10 to 15 feet short of the island, and began thrashing about and calling for help. His friends, who had reached the island before Eric, at first thought that he was goofing around. When they realized he was serious, his friends dove into the water to try to save him. Despite his friends’ efforts to save him, Eric slipped under the water. People on the shore who witnessed the incident ran off to summon park personnel for help.
[*P8] Within a few minutes after arriving, park personnel, who were certified in lifesaving, located Eric about 10-15 feet away from the spot where [**5] he had initially gone under the water. Park personnel then took Eric back toward the island, so that they could try to resuscitate him, but they were unsuccessful. All of these events, from the time Eric began to experience trouble, to the time park personnel attempted to revive him, took place within the span of 17 to 20 minutes.
[*P9] On June 10, 2002, Bishop and his wife Janine, as co-executors of their son Eric’s estate, filed wrongful death action, pursuant to R.C. 2125.01 et. seq. against Nelson Ledges Quarry Park, LLC, Glenn and Joretta, and Kelley, alleging that all named defendants were negligent, and that their negligence was the direct and proximate cause of Eric’s death.
[*P10] On October 1, 2003, Nelson Ledges, Glenn and Joretta, and Kelley collectively moved for summary judgment.
[*P11] Bishop then filed a memorandum in opposition to summary judgment, attaching as support an affidavit from Tom Griffiths, Ed.D. (“Griffiths”), an aquatic safety expert, along with a report, incorporated by reference, in which Griffiths testified to “a high degree of aquatic certainty,” that “the conduct of allowing swimming in unrestricted areas, given the [**6] numerous instances highlighted in this report regarding the failure of the defendants to comply with even the most basic water safety requirements *** created a risk that was substantially greater than that which is necessary to make their conduct simply negligent.”
[*P12] On January 12, 2004, the trial court, after reviewing all of the pleadings, motions, and evidence filed, issued a four page order and judgment entry granting summary judgment in favor of all of the defendants. After setting forth the standards for summary judgment, the court made the following conclusions of law: 1) That defendants Glenn and Joretta Frohring are entitled to summary judgment, pursuant to R.C. 1705.48(A) and (B), since they are principals of a limited liability company 2. 2) That, even when reviewing all of the evidence in the light most favorable to the plaintiff, including the report of Tom Griffiths, defendants’ conduct did not rise to a level of reckless, willful or wanton conduct, but at most, suggested there may be a genuine issue of material fact as to negligence. 3) The waiver was valid, as a matter of law, thus, Eric waived all claims of negligence, and Bishop [**7] was barred from recovering on the wrongful death claim.
2 On appeal, Bishop’s counsel admitted at oral argument and in their brief that Glenn and Joretta Frohring would not be personally liable as principals of a limited liability company under R.C. 1705.48 (A). Therefore, this court, sua sponte, formally dismisses the Frohrings as parties to this appeal.
[*P13] Bishop timely appealed and raised the following assignments of error:
[*P14] “[1.] The trial court erred in failing to apply the standards for determination of motions for summary judgment.
[*P15] “[2.] The trial court erred in granting summary judgment in favor of appellee Nelson Ledges Quarry Park, Ltd. based on alleged lack of possession or control of leased premises.
[*P16] “[3.] The trial court erred in granting summary judgment for appellees on the ground that a valid release executed by Eric Bishop released appellees from liability.”
[*P17] As all of Bishop’s assignments of error question the propriety [**8] of the trial court’s grant of summary judgment, we will first address the applicable standards of review.
[*P18] [HN1] “Summary judgment is a procedural device to terminate litigation and to avoid formal trial when there is nothing to try. It must be awarded with caution.” Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 1992 Ohio 95, 604 N.E.2d 138. Summary judgment is proper when three conditions are satisfied: 1) there is no genuine issue of material fact; 2) the moving party is entitled to judgment as a matter of law; and 3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion form summary judgment is made. See, Harless v. Willis Day Warehousing Co. (1976), 54 Ohio St.2d 64, 66, 375 N.E.2d 46; Civ.R. 56(C). [HN2] “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R.56(E) to set forth specific facts showing that there is a genuine issue for trial, and if the nonmovant does not so respond, summary judgment, [**9] if appropriate, shall be entered against the nonmoving party.” Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264. [HN3] In reviewing a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 2000 Ohio 186, 738 N.E.2d 1243. Moreover, an appellate court conducts a de novo review of the trial court’s decision to grant summary judgment. Id. Thus, we, as an appellate court, owe no deference to the conclusions of the trial court.
[*P19] [HN4] In order to prevail in a wrongful death cause of action, the personal representative of the decedent must prove these elements: “1) a wrongful act, neglect or default of defendant which proximately caused the death and which would have entitled the decedent to maintain an action and recover damages if death had not ensued; 2) that a decedent was survived by a spouse, children, parents, or other next of kin; and 3) that the survivors suffered damages by reasons of the wrongful death.” McCormac, Wrongful Death in Ohio § 2.02. Bishop’s assignments of error challenge the court’s conclusions related to the first element, which may sound in either [**10] negligence or willful misconduct.
[*P20] For the purposes of judicial economy, Bishop’s assignments of error will be discussed out of order.
[*P21] In his third assignment of error, Bishop claims that the trial court improperly granted summary judgment, because there is a genuine issue of material fact with respect to the validity of the release executed by Eric on the day he drowned. We note at the outset, that Bishop does not argue that Eric did not sign the waiver form. However, Bishop does argue that if the exculpatory provisions in this waiver were strictly construed, the waiver would fail as a matter of law, because the intent to release the party was not expressed in clear and unequivocal terms. We disagree.
[*P22] [HN5] It is well-settled in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor’s acts of negligence, but not for his willful or wanton misconduct. See, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384 (auto racing); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201 [**11] (soccer); King v. United Skates of America (Nov. 10, 1994), 11th Dist. No. 93-L-199, 1994 Ohio App. LEXIS 5089 (roller skating); Cain v. Cleveland Parachute Training Ctr. (1983), 9 Ohio App.3d 27, 9 Ohio B. 28, 457 N.E.2d 1185 (skydiving); Schwartzentruber v. Wee-K Corp. (1997), 117 Ohio App. 3d 420, 690 N.E.2d 941 (horseback riding). Clauses limiting liability shall ordinarily be construed strictly against the drafting party. Glaspell v. Ohio Edison Co. (1987), 29 Ohio St.3d 44, 29 Ohio B. 393, 505 N.E.2d 264 at paragraph one of syllabus, ; Cain, 9 Ohio App.3d at 28. Moreover, [HN6] matters involving the interpretation of contract terms, when such terms are unambiguous, are questions of law. See, Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 1995 Ohio 214, 652 N.E.2d 684.
[*P23] Reviewing the terms of the waiver language in the light most favorable to Bishop, we hold that there is no genuine issue of material fact related to the validity of the waiver that Eric signed. While inartfully drafted, the sheet Eric signed is clearly labeled at the top as a “Liability Waiver Form” in bold type. Moreover, the form states, in relevant part, that the company and [**12] customers agree that the company is not responsible for, “all liability for any loss, including, *** any loss arising from *** drowning.” (Emphasis added). Thus, any person signing the waiver sheet was on notice that the company was attempting to disclaim all liability for drowning, which is certainly a foreseeable risk of the activity. The term, “all liability” in this case is sufficient to encompass a loss from drowning due to any alleged negligence on the part of Nelson Ledges or Kelley. See, e.g. Schwartzentruber, 117 Ohio App.3d at 425 [HN7] (although “the better practice would certainly be to expressly state the word ‘negligence’ somewhere in the exculpatory provision *** the absence of that term does not automatically render the provision fatally flawed.”) For the reasons mentioned in Bowen, such a broad disclaimer of liability would not, as a matter of law, operate to relieve them from willful or wanton misconduct. Moreover, the obvious purpose of the writing on the document was to release Nelson Ledges and Kelley, d.b.a. J&E, from liability. This argument is not well-taken.
[*P24] Bishop additionally argues that the waiver cannot pass [**13] the test of clarity, since the exculpatory provisions appear in extremely small type. We disagree. Bishop, relying on the California case, Link v. NASCAR, Inc., (Cal.App.1984), 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, argues that if an express release is not easily readable, then it is not enforceable. Bishop’s reliance on Link is misplaced.
[*P25] We first note that [HN8] the rules of law from other states are not controlling in Ohio, but may be used as persuasive authority, particularly when deciding a case of first impression. Certain facts of Link are similar to the instant case, in that the suit was brought for wrongful death as the result of injuries the deceased received after he had signed a waiver sheet which had places for multiple signatures. However, the purported releases that the deceased in Link signed were printed in five-and-one-half point type and could not easily be read by persons of ordinary vision. Furthermore, the court in Link found that the language was so lengthy and convoluted, it was almost incomprehensible to the average person. In deciding the case, the court in Link relied heavily on numerous provisions of the California Civil Code, which [**14] regulate the size of the type to be used in contract provisions, to support their argument. [HN9] Ohio has no such provisions. While we agree in broad principle that contract provisions, particularly those which purport to waive liability, should be printed in type large enough for a person of normal vision to read easily, the waiver in the case at bar satisfies these requirements. As we already mentioned, we find the terms of the waiver in this case were sufficiently clear to put the person signing it on notice. We agree with the trial court that Eric effectively waived all claims based on negligence by signing the waiver form. Thus, Bishop’s third assignment of error is without merit.
[*P26] Under Bishop’s first assignment of error, he argues that even if the court was correct in declaring that the waiver is valid as a matter of law, summary judgment should not have been granted, since the report of Bishop’s aquatic safety expert raised a genuine issue of material fact as to whether Kelley and Nelson Ledges engaged in willful and wanton misconduct. We disagree.
[*P27] We note at the outset, that since we have found Eric’s waiver of liability to be effective against negligence claims, [**15] Griffiths’ report may only be used to demonstrate willful and wanton misconduct. [HN10] Willful and wanton misconduct has been defined by the Ohio Supreme Court as the equivalent to reckless conduct. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104 n.1, 559 N.E.2d 705. An actor’s conduct is reckless when “he does an act or intentionally fails to do an act which it is his duty *** to do, knowing or having reason to know of facts which could lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” Id. at 104-105 (citation omitted) (emphasis added). [HN11] “An act is negligent if it ‘falls below a standard established by the law for the protection of others against unreasonable risk of harm.” Id. at 103 (citation omitted). While the act must be intended by the actor to be reckless, “the actor does not intend to cause the harm which results from it.” Id. at 105 (citation omitted). Moreover, the risk itself must be “an unreasonable one under the circumstances.” Id. (emphasis sic).
[*P28] [**16] [HN12] An expert opinion may be incorporated by reference into a motion for summary judgment by means of a properly framed affidavit. See, e.g., Rogoff v. King (1993), 91 Ohio App.3d 438, 446, 632 N.E.2d 977. However, it is axiomatic that facts presented in affidavits supporting or opposing summary judgment must be of the type which would be admissible at trial. Civ.R. 56(E); Nu-Trend Homes, Inc. v. Law Offices of DeLibera, Lyons, & Bibbo, 10th Dist. No. 01AP-1137, 2003 Ohio 1633, at P71.
[*P29] Griffiths’ report makes reference to recommendations made by the Portage County Health Department (“the Department”), which is responsible for establishing licensing and health requirements for bathing beaches in the county. Kelley’s duty as operator of the park is predicated by regulations set by the Department. The referenced recommendations were suggested improvements made by the Department in 2001, almost an entire year after Eric’s accident, and a major portion of Griffiths’ report is devoted to Kelley’s response to these recommendations.
[*P30] This court has held that [HN13] “subsequent remedial measures are not admissible to prove negligence [**17] or culpable conduct in connection with the event at issue.” DiCesare v. Trumbull Cty. Bd. of Commrs. (Dec. 19, 1986), 11th Dist. Nos. 3620 & 3622, 1986 Ohio App. LEXIS 9404, at *6, citing Evid.R. 407. Thus, none of the evidence of subsequent measures in Griffiths’ report is admissible under Evid.R. 407 to prove negligence or culpable conduct in connection with Eric’s drowning.
[*P31] Griffiths’ report also bases its conclusion, in part, on Resolution 95-01, which was promulgated by the Department and in effect at the time of the accident. Specifically, Griffiths’ points to the provisions of Resolution 95-01 which called for “one or more qualified lifeguards for each 300 linear feet of occupied bathing beach” to be on duty and “when swimming outside of designated swimming and diving areas *** is permitted *** at least one rescue boat, or rescue board shall be provided and manned with a qualified lifeguard.”
[*P32] Kelley and Nelson Ledges do not dispute that there was only one lifeguard on the beach and no one patrolling in a kayak, at the time of the accident, even though there were staff working at the park [**18] that day who were certified lifeguards. The reason given for only one lifeguard on duty that day was that it was a slow day, as it had rained earlier that morning. The sole lifeguard on duty that day was stationed at the beach, watching over children who were swimming in the designated swimming area.
[*P33] However, the absence of a rescue boat on duty on the date of Eric’s drowning, as required by Resolution 95-01 does not create a genuine issue of material fact as to whether Kelley’s or Nelson Ledges’ conduct was willful and wanton. To hold otherwise would misconstrue the meaning of the term “standard established by law for the protection of others,” pursuant to Thompson.
[*P34] The threshold issue in determining willful and wanton misconduct is to determine what legal duty Kelley owed Eric as a visitor to the park. Since Eric paid an admission charge to Kelley for the purpose of swimming at the park, it is clear that Eric was a business invitee on the day of his drowning. [HN14] The Supreme Court of Ohio has defined a business invitee as “one rightfully on the premises of another for the purposes in which the possessor of the premises has a beneficial interest.” Scheibel v. Lipton (1951), 156 Ohio St. 308, 102 N.E.2d 453, [**19] at paragraph one of the syllabus; Monaco v. Red Fox Gun Club, Inc., 11th Dist. No. 2000-P-0064, 2001 Ohio App. LEXIS 6008, at *21, 2001 Ohio 4040.
[*P35] [HN15] Under common law, the duty owed by an owner of a premises to a business invitee is to “exercise ordinary care and to protect [the invitee] by maintaining the premises in a safe condition.” Id. at *21-*22. Thus, the next question then becomes, whether Resolution 95-01 imposes an additional legal duty on Kelley over and above the common-law duty of ordinary care.
[*P36] [HN16] Courts in Ohio uniformly recognize that the violation of legislative enactments which create a specific and mandatory duty for the protection of others constitutes negligence per se. Klyn v. Aruta (1986), 34 Ohio App.3d 152, 154, 517 N.E.2d 992; Tome v. Berea Pewter Mug, Inc. (1982), 4 Ohio App.3d 98, 103, 4 Ohio B. 181, 446 N.E.2d 848; Parker v. Copey’s Butcher Shop (Dec. 14, 1992), 2nd Dist. No. 2820, 1992 Ohio App. LEXIS 6496, at *6; Starost v. Bradley (Jan. 29, 1999), 2nd Dist. No. 17319, 1999 Ohio App. LEXIS 324, at *12 (“proof of negligence per se means that the Defendant possessed a duty imposed by statute [**20] and breached that duty”). Thus, in cases where a mandatory legal duty is imposed by statute, the “specific requirements of the statute or ordinance replace the rule of ordinary care.” Kehrer v. McKittrick (1964), 176 Ohio St. 192, 198 N.E.2d 669. (emphasis sic).
[*P37] [HN17] According to their express terms, Resolution 95-01 and the regulations created thereunder were adopted by the Portage County Department of Health for the licensing and health requirements of bathing beaches. The resolution purportedly derives its power to adopt regulations under the authority of R.C. 3707.01 and R.C. 3709.21, as well as under Ohio Administrative Code 3701-31-10.
[*P38] [HN18] R.C. 3707.01 charges boards of health of cities or general health districts with the obligation of “abating and removing all nuisances within its jurisdiction,” granting such boards the authority to “regulate the location, construction, and repair *** of yards, pens, and stables, and of water closets, privies, cesspools, sinks, plumbing and drains.”
[*P39] R.C. 3709.21 provides, in relevant part, that [HN19] “the board of health [**21] of a general health district may make such orders and regulations as are necessary for *** the public health, the prevention and restriction of disease, and the prevention, abatement, or suppression of nuisances.”
[*P40] [HN20] A plain reading of both statutes clearly indicates that neither expressly delegates to public health departments the authority to regulate public swimming areas. Moreover, even if we were to presume that public swimming areas fell under the ambit of the more general authority of R.C. 3709.21, the authority to regulate under this statute is limited only to public health matters, and not matters of public safety. Jackson v. City of Franklin (1991), 72 Ohio App.3d 431, 446, 594 N.E.2d 1018 (“R.C. 3709.21 does not authorize a board of health to regulate matters pertaining to public safety.”) Furthermore, as mentioned earlier, the regulation also purports to rely on [HN21] former Ohio Adm. Code 3701-31-10 3, regulating “other public bathing places,” which was repealed in January of 1996, over four years before the current incident occurred. See 1995-1996 Ohio Monthly Record 1-1110, eff. Jan. 1, 1996. Thus, any attempt [**22] by the Portage County Board of Health to promulgate and enforce safety regulations under either of the aforementioned statutes or the administrative code section, would be without legal effect.
3 [HN22] Ohio Adm. Code 3701-31-01 et. seq. is authorized by R.C. Chapter 3749.02, which was enacted in 1987. R.C. 3749.02 grants public health departments the right to regulate “the issuance of licenses, *** sanitation, safety, and operation of public swimming pools, public spas, and special use pools.” R.C. 3749.02 (emphasis added). We note, however, that according to R.C. 3749.01, “public swimming pools”, “spas,” and “special purpose pools” have specifically defined meanings. Although 3749.01(J) defines “public bathing areas” as “an impounding reservoir, basin, lake, pond, creek, river, or other similar natural body of water,” no other section within R.C. Chapter 3749 makes any mention of “public bathing areas.” Thus, we can only conclude that a public health department’s regulation of “public bathing areas” is not specifically authorized by this chapter. See also, 1994 Ohio Atty. Gen. Ops. No. 94-044. (“A public bathing beach *** is not subject to regulation under R.C. Chapter 3749, unless such beach constitutes a ‘public swimming pool,’ as defined in R.C. 3749.01(G), a ‘public spa,’ as defined in R.C. 3749.01(H), or a ‘special use pool,’ as defined in R.C. 3749.01(I).”
[*P41] [**23] Even if we were to assume that the administrative code section to which Resolution 95-01 cites was a valid means of enacting sufficiently specific safety regulations, [HN23] administrative code sections cannot, as a matter of law, be used to support a finding of negligence per se. Jaworowski v. Medical Radiation Consultants (1991), 71 Ohio App.3d 320, 329, 594 N.E.2d 9 (“The only ‘laws’ in Ohio which historically have been held to create specific and mandatory duties the violation of which constitutes negligence per se are legislative enactments, not administrative regulations.”) (citations omitted); see also, Whitener v. Firwood Investment Co. (Sep. 13, 1995), 2nd Dist. No. 14938, 1995 Ohio App. LEXIS 3986, at *22. Thus, we find that in the absence of valid and enforceable safety regulations, Kelley’s legal duty was one of ordinary care, i.e., an ordinary negligence standard of care.
[*P42] Since we have already determined that Eric validly waived all claims sounding in negligence, we see no conceivable means by which the requirements of Resolution 95-01 may be used, to find that Kelley’s conduct rose to the level of willful and wanton misconduct. See [**24] Roszman v. Sammett, (1971), 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420 [HN24] (“The difference between negligence and willfulness is a difference in kind and not merely a difference in degree *** in order to establish wantonness, the conduct must be supported by evidence that shows a disposition to perversity, such as acts of stubbornness, obstinacy or persistency in opposing that which is right, reasonable, correct or generally accepted as a course to follow in protecting the safety of others”) (emphasis added). Though the circumstances surrounding Eric’s death are, indeed, unfortunate, [HN25] “willful conduct implies design, set purpose, intention, or deliberation,” and “wanton conduct comprehends an entire absence of all care for the safety of others and a complete indifference to the consequences of the allegedly negligent act.” Rinehart v. Federal Nat’l Mortgage Assn. (1993), 91 Ohio App. 3d 222, 229, 632 N.E.2d 539 (citations omitted). Since there is nothing in the record supporting a finding that Kelley’s conduct was willful or wanton as a matter of law, Bishop’s first assignment of error is without merit.
[*P43] In his second assignment of error, Bishop alleges that Nelson Ledges maintained [**25] significant possession and control over the park as lessor and is therefore liable for Eric’s death. Since we determined in assignments of error one and three that Eric validly waived all claims sounding in negligence, and Kelley’s conduct as operator and lessee of the park did not rise to the level of willful and wanton misconduct, there is no liability to be imputed to Nelson Ledges. Bishop’s second assignment of error is without merit.
[*P44] For the foregoing reasons, we affirm the judgment of the Portage County Court of Common Pleas.
DONALD R. FORD, P.J., concurs with a Concurring Opinion.
CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
CONCUR BY: DONALD R. FORD; CYNTHIA WESTCOTT RICE (In Part)
DONALD R. FORD, P.J., concurring.
[*P45] Although I concur with the majority, I believe that the following language cited in the opinion is subject to further qualification. The majority states that: “an expert opinion may be incorporated by reference into a motion for summary judgment by means of a properly framed affidavit. See e.g., Rogoff v. King (1993), 91 Ohio App.3d 438, 446, 632 N.E.2d 977. However, it is axiomatic that [**26] facts presented in affidavits supporting or opposing summary judgment must be of the type which would be admissible at trial. Civ.R. 56(E), Nu-Trend Homes, Inc. v. Law Offices of DeLibera, Lyons, and Bibbo, 10th Dist. No. 01AO-1137, 2003 Ohio 1633, at 71.”
[*P46] This writer notes that when there is no timely objection to submissions that otherwise could be excluded, the trial court might include such material in its analysis regarding a decision on a motion for summary judgment. Rodger v. McDonald’s Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 8 Ohio B. 347, 456 N.E.2d 1262, at paragraph one of the syllabus; Chiles v. Cuyahoga Community College (Dec. 5, 1996), 8th Dist. No. 70658, 1996 Ohio App. LEXIS 5466, at *4; Christe v. GMS Mgt. Co., Inc. (1997), 124 Ohio App. 3d 84, 90, 705 N.E.2d 691; Sreshta v. Kaydan (May 6, 1999), 8th Dist. No. 74081, 1999 Ohio App. LEXIS 2066, at *6-*7; Jarrell v. Englefield (Mar. 17, 2000), 11th Dist. No. 98-P-0105, 2000 Ohio App. LEXIS 1076, at *2; Ryser v. Conrad (Mar. 31, 2000), 11th Dist. No. 98-T-0088, 2000 Ohio App. LEXIS 1428, at *8; Kanu v. George Dev., Inc., 6th Dist. Nos. L-02-1140 and L-02-1139, 2002 Ohio 6356, at P13. [**27] (Citations omitted.)
DISSENT BY: CYNTHIA WESTCOTT RICE (In Part)
CYNTHIA WESTCOTT RICE, J., concurring in part, dissenting in part.
[*P47] I concur with the majority’s resolution of appellant’s first and third assignments of error as they relate to the validity of the waiver Eric signed and its release of appellees from claims sounding in negligence. I dissent with respect to the resolution of appellant’s second assignment of error.
[*P48] As Judge Ford correctly notes in his concurring opinion, “when there is no timely objection to submissions that might otherwise be excluded, the trial court might include such material in its analysis regarding a decision on a motion for summary judgment.”
[*P49] Here, appellees failed to raise any objection to Griffith’s reference to recommendations made by the Portage County Health Department and the trial court could include such material in its analysis.
[*P50] Further, the majority concedes appellees were in violation of Resolution 95-01 at the time Eric drowned, yet summarily conclude that this evidence, “while likely sufficient to support a finding of negligence per se *** [is] insufficient as a matter of law, to find Kelly’s conduct [**28] rose to the level of willful and wanton misconduct.”
[*P51] The majority defines willful and wanton conduct as equivalent to reckless conduct and then states:
[*P52] “An actor’s conduct is reckless when ‘he does an act or intentionally fails to do an act which it is his duty *** to do knowing or having reason to know of facts which could lead a reasonable man to realize not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.’ *** An act is negligent if it ‘falls below a standard established by law for the protection of others against unreasonable risk of harm.’ *** While the act must be intended by the actor to be reckless, ‘the actor must not intend to cause the harm which results from it.’ *** Moreover, the risk itself must be ‘an unreasonable one under the circumstances.‘” (Emphasis sic.) Supra, at 10.
[*P53] Here, Resolution 95-01 required a manned rescue boat to be on duty. Appellees concede no manned rescue boat was on duty and this decision was an intentional one. Thus, appellees concede they intentionally failed to do an act they were [**29] required by law to do. Appellant’s expert opined that appellees’ failure “to comply with even the most basic water safety requirements *** created a risk that was substantially greater than that which is necessary to make their conduct simple negligence.”
[*P54] Appellant’s expert’s opinion establishes a genuine issue of material fact exists as to whether appellees’ conduct was willful or wanton. For these reasons, I find appellant’s second assignment of error has merit.
No one saw the deceased drown; no one could prove what happened. Campground was not liable for death of a swimmer.Posted: May 9, 2016
Legally if a tree falls in the woods and no one is around to see it fall it does not make any noise.
State: Connecticut, Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport
Plaintiff: Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro
Defendant: Odetah Camping Resort, Inc.
Plaintiff Claims: failure to provide lifeguards and knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.
Defendant Defenses: No proximate causation
Holding: for the Defendant
The defendant is a camping area that allows day users in order to access other recreational opportunities at the campground.
The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. T
The plaintiff and friends entered the defendant’s campground and paid an entrance fee. The campground was adjacent to a large lake. There was a swimming area on the campground and roped off in the lake. Outside of the roped area were two large inflatable platforms, one described as a trampoline and the other described as an “iceberg.”
There were no lifeguards at either the defendant’s pool or the lake area. A single sign was posted that warned that there were no lifeguards at the lake.
The plaintiff and a friend entered the designated swimming area for the purpose of swimming out to the trampoline. The trampoline was just beyond the buoy line. The friend made it to the trampoline. However, the plaintiff, deceased never did.
When it was noticed he was missing 911 was called. A firefighter found the deceased floating just below the surface inside the swimming area. A postmortem autopsy determined the cause of death to be “asphyxia due to submersion.”
No one saw the deceased struggling or in distress, and no one saw him drown.
The case went to trial on two theories:
The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.
The jury returned a verdict based on the second issue. The defendant filed an appeal.
Analysis: making sense of the law based on these facts.
Under Connecticut law to establish a basic or prima facie case, the plaintiff must:
[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] favor.
To win its case the plaintiff must prove negligence.
“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.”
The defendants’ defense was no one saw the deceased drown. There was thus no proof of causation.
Interrogatories were provided to the jury. Interrogatories are questions the jury must answer in reaching its decision or in deciding the case. The interrogatory answers seemed to focus on the fight the owner’s manual of the trampoline warned that users should wear life jackets. Life jackets were available to swimmers in a shed on the beach; however, they were not required to be worn.
The plaintiff hired an expert witness who opined that the defendant campground was liable for failing to have safety measures in place, failing to have life guards and failing to have an emergency safety plan. However, these breaches of duty, if true, still had no link to how the decedent died. There was no way to say having one of the missing items identified by the expert witness was not proof that the plaintiff might have lived. “To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct…”
The court reversed the jury’s decision because there was no evidence of what happened to the plaintiff. Consequently, there was no relationship, no causal link between the failures to require life jackets to the deceased’s death.
The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.”
The appellate court reversed the jury findings.
Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what caused this drowning is fatal to the plaintiff’s case.
So Now What?
It is sad when someone dies. However, just because someone dies or a bandage is used, does not mean there is liability and the need to write a check. There must be a connection between something the defendant did wrong and the injury to the victim.
That connection in Connecticut must be an unbroken string of events linking the plaintiff’s injuries to the defendant’s conduct.
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Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro v. Odetah Camping Resort, Inc.
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT
2015 Conn. Super. LEXIS 2297
September 2, 2015, Decided
September 2, 2015, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
JUDGES: [*1] Michael P. Kamp, J.
OPINION BY: Michael P. Kamp
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
The defendant, Odetah Camping Resort, Inc., has filed a renewal of its motion for directed verdict and a motion to set aside the jury’s verdict.1 The trial commenced on April 28, 2015, and evidence concluded on May 6, 2015, when the defense rested its case. The jury received the charge on the law on May 6, 2015. On May 6, 2015, the jury returned a verdict for the plaintiff, Adelson Luiz DeCastro, Administrator of the Estate of Jose Luiz DeCastro, and awarded total damages of $229,155.96. Regarding the question of comparative negligence, the jury found the plaintiff’s decedent, Jose DeCastro, was 49% responsible for his own injuries.
1 The defendant originally moved for a directed verdict at the close of the plaintiff’s case in chief. At that time, the court reserved decision, and the defendant commenced its defense. On close of the defendant’s case, the matter was submitted to the jury.
The defendant filed its motion to set aside the verdict on May 15, 2015. The plaintiff filed its objection to the defendant’s motion [*2] on May 19, 2015. On June 22, 2015, the court heard the matter at short calendar and took the papers.
The defendant argues in its motion that the plaintiff failed to prove beyond the realm of surmise and speculation that the defendant’s negligence was the proximate cause of the death of the decedent. This argument is based upon a lack of evidence as to what actually caused the decedent to drown.
After a trial, the jury could have found as follows. On July 7, 2011, the decedent and a group of friends went to the defendant resort located in Bozrah, Connecticut. In order to gain entrance, the decedent paid an entrance fee. The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just [*3] beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. The defendant did not provide lifeguards at the pool or lake swim area. A single sign was posted at one end of the beach area, indicating: “No Lifeguard on Duty. Swim at Your Own Risk.” No employees of the defendant directly supervised the lake swimming area.
On July 9, 2011, the decedent and his friend, Saulo Sousa, entered the designated swimming area for the purpose of swimming out to the trampoline just beyond the buoy line. When Sousa reached the rope line, he observed the decedent immediately behind him in the water. The depth of the water at this location was approximately six feet. As Sousa lifted the rope line to duck under it, he observed the decedent diving forward and under the rope. When Sousa reached the trampoline, he climbed on it but did not observe the decedent. After spending a few minutes on the trampoline, Sousa reentered the water and swam to the shore. After unsuccessfully attempting to locate the decedent, employees of the defendant [*4] were notified that he was missing. After a brief search, 911 emergency services were dispatched, and Bozrah firefighters and rescue personnel responded to the scene. When notified that the decedent was last seen in the designated swim area near the buoy line, firefighter Colin Laffey entered the water and located the decedent floating unresponsive just below the surface of the water just inside the buoy line. Laffey testified that he located the decedent in an area where the depth of the water was less than six feet. The decedent was brought to shore, and CPR was administered. The decedent was then transported by ambulance to Backus Hospital, but never regained consciousness and was pronounced dead. A postmortem autopsy determined the cause of death to be asphyxia due to submersion. The postmortem examination was negative for any signs of illness, traumatic injury, or any preexisting medical condition or disease. A toxicology examination was negative for the presence of any drugs, alcohol, or medication.
The decedent’s drowning was unwitnessed despite the fact that there were numerous people in the water and on the beach. Although other members of the decedent’s group, including his [*5] girlfriend, were on the beach adjacent to the swimming area, no one saw him in distress or struggling in the water. He was identified by his friends as a good or strong swimmer.
Practice Book §16-37 provides, in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” “Directed verdicts are not favored . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion . . . In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal [*6] quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). “A verdict may be directed . . . where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn.App. 556, 565-66, 874 A.2d 259 (2005).
Likewise, “[a] trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury.” (Internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010), rev’d on other grounds, Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 32 A.3d 318 (2011).
“[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] [*7] favor.” (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn.App. 447, 455-56, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). “The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury.” Murteza v. State, 7 Conn.App. 196, 208-09, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). “[I]t is not the function of [the trial] court to sit as the seventh juror when [it] review[s] the sufficiency of the evidence . . . rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [trier’s] verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the [trier] could reasonably have reached its conclusion, the verdict must stand, even if [the trial] court disagrees with it.” (Internal quotation marks omitted.) O’Connor v. Larocque, 302 Conn. 562, 612, 31 A.3d 1 (2011).
“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under [*8] the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Insurance Company, 310 Conn. 768, 776-77, 83 A.3d 576 (2014).
The defendant’s primary argument is that no one [*9] witnessed the decedent’s drowning, and there was no evidence offered as to what caused him to drown. The defendant relies on Wu v. Fairfield, 204 Conn. 435, 528 A.2d 364 (1987). In Wu, the plaintiff’s decedent who was fifteen years old, went to Lake Mohegan, a freshwater lake, with her mother and two brothers for an afternoon of swimming. Id., 437. There was a designated swim area marked by a buoy line. At the time of the occurrence, there were four lifeguards on duty. Id. Those lifeguards had observed that the plaintiff’s decedent was a poor swimmer and had warned her twice to return to the shallow portion of the designated swim area. Id. When an approaching storm prompted the lifeguards to clear the water, the plaintiff’s decedent did not return to shore. Id. After a search, one of the lifeguards found the decedent’s body at the bottom of the lake in the designated swim area but beyond the shallow portion. Id., 437-38. The plaintiff alleged that the town and several of its employees, the lifeguards, were negligent in the performance of their duties. Id., 436. A jury returned a verdict for the defendants. Id. The plaintiff then filed a motion to set aside the verdict, which motion was denied. Id. In affirming the trial court’s denial of the plaintiff’s [*10] motion to set aside the verdict, the court held that “[w]hile it is undisputed that the decedent drowned, there was no evidence tying any negligence on the defendant lifeguards’ part to her death . . . Here, the plaintiff presented no evidence other than that the victim perished in an unwitnessed drowning. The plaintiff failed to establish an unbroken sequence of events causally flowing from the defendant lifeguards’ arguably negligent supervision to the decedent’s drowning.” Id., 440.
In this case, the plaintiff’s May 4, 2015 amended complaint contained two specifications of negligence as to the conduct of the defendant. The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so. In response to jury interrogatories submitted by the court the jury found that the defendant was negligent with regard to the second specification but not the first. With regard to the claim of negligence concerning encouraging [*11] swimmers to use the flotation devices, the plaintiff relied on testimony that the owner’s manual for the two devices contained warnings that recommended users wear life vests. Although life vests were available in a shed adjacent to the lake swim area, the defendant did not require guests entering the lake or using any of the flotation devices to wear them. In addition, the plaintiff argued that the defendant failed to properly supervise and monitor the swimming area and had an inadequate emergency rescue plan.
The plaintiff offered the testimony of Gerald Dworkin, an aquatic safety expert. Dworkin offered opinion testimony regarding the defendant’s lack of safety measures including its failure to have lifeguards monitoring the swim area. Dworkin was also critical of the defendant’s lack of an emergency safety plan. Dworkin did not, however, offer any opinion testimony as to what actually caused the decedent to drown. He affirmed that it was an unwitnessed drowning. In addition, although the owner’s manuals for the flotation devices recommended the use of life vests, the decedent was not using either device when he drowned; the little evidence there is indicates he never left the designated [*12] swim area. The flotation devices were located outside that designated area.
Here, as in Wu, the plaintiff presented no evidence other than that the decedent died in an unwitnessed drowning. There was no evidence as to what caused the decedent to drown. In the absence of any such evidence, any number of factual possibilities could explain this accident. Without any evidence as to what caused this unfortunate incident, only speculation and conjecture could link the plaintiff’s drowning to the negligent conduct of the defendant. The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.” Wu v. Town Of Fairfield, supra, 204 Conn. 441.
Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what [*13] caused this drowning is fatal to the plaintiff’s case.
Because the plaintiff failed to establish that the negligent conduct of the defendant was the proximate cause of the decedent’s drowning, the defendant’s motion to set aside the verdict is granted. Judgment may enter for the defendant.