Strawbridge, Jr., v. Sugar Mountain Resort, Inc., 328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644

Strawbridge, Jr., v. Sugar Mountain Resort, Inc., 328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644

Vincent F. Strawbridge, Jr., and Rebecca S. Strawbridge, Plaintiffs, vs. Sugar Mountain Resort, Inc.; B. Dale Stancil, Individually; The Sugar Mountain Irrevocable Trust; and The B. Dale Stancil Irrevocable Trust, Defendants.

CIVIL NO. 1:02CV92

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA, ASHEVILLE DIVISION

328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644

May 28, 2004, Decided

June 28, 2004, Filed

PRIOR HISTORY: Strawbridge v. Sugar Mt. Resort, Inc., 320 F. Supp. 2d 425, 2004 U.S. Dist. LEXIS 14561 (W.D.N.C., 2004)

COUNSEL: For VINCENT F. STRAWBRIDGE, JR., REBECCA S. STRAWBRIDGE, plaintiffs: R. Hayes Hofler, Daniel B. Hill, Hayes, Hofler & Associates, P.A., Durham, NC.

For SUGAR MOUNTAIN RESORT, INC., defendant: Wyatt S. Stevens, Roberts & Stevens, P.A., Robert E. Riddle, Asheville, NC USA.

For B. DALE STANCIL, THE SUGAR MOUNTAIN IRREVOCABLE TRUST, THE B. DALE STANCIL IRREVOCABLE TRUST, defendants: James R. Fox, Jennifer I. Oakes, Bell, Davis & Pitt, P.A., Winston-Salem, NC USA.

JUDGES: LACY H. THORNBURG, UNITED STATES DISTRICT COURT JUDGE.

OPINION BY: LACY H. THORNBURG

OPINION

[*611] ORDER

THIS MATTER is before the Court on motions of Defendant Sugar Mountain, Inc. (“Sugar Mountain”), and Defendants B. Dale Stancil, individually, the Sugar Mountain Irrevocable Trust, and the B. Dale Stancil Irrevocable Trust (“non-resort Defendants”) for reconsideration, the non-resort Defendants’ [**2] request for oral argument, and Plaintiff’s response to these motions.

A. Sugar Mountain’s motion.

Sugar Mountain argues that “there is a difference between contracting against liability for negligence and agreeing to assume certain inherent risks of a particular activity.” Defendant Sugar Mountain Resort, Inc.’s Motion for Reconsideration [Sugar Mountain’s Motion], filed June 9, 2004, at 2. Sugar Mountain further argues that, even if the exculpatory clause Plaintiff signed to rent his ski equipment is unenforceable, he still assumed the risk of suffering an injury caused by a bare spot on the slope. See id., at 4. To support its claim that Plaintiff assumed the risk of falling on a bare spot, Sugar Mountain relies primarily on the statement printed on the back of Plaintiff’s lift ticket warning him of bare spots and other dangers. Sugar Mountain also points to Plaintiff’s extensive skiing experience in support of its claim that he assumed the risk of the injury that he ultimately suffered. See id., at 7.

Sugar Mountain cites some persuasive and some binding authority that appears to support the distinction between agreements to assume inherent [**3] risks and contracts against liability for negligence. Cf., Alston v. Monk, 92 N.C. App 59, 373 S.E.2d 463 (1988) (analyzing the defendants’ assumption of risk claims separately from their waiver claims); Poston v. Skewes, 49 Fed.Appx. 404 (4th Cir. 2002) (explaining that the trial court had properly interpreted Virginia law when it allowed into evidence an “assumption of risk” statement that the plaintiff had signed but redacted language that purported to “release” [*612] the defendants from liability for negligence). The Court will, therefore, assume without deciding that Sugar Mountain’s assumption of risk defense is distinct from the “release” defense the Court has already considered and rejected.

Sugar Mountain concedes that [HN1] the assumption of risk defense “extends only to those risks which are normally incident to the [activity] in which the plaintiff engages.” Sugar Mountain’s Motion, at 5 (citing McWilliams v. Parham, 269 N.C. 162, 166, 152 S.E.2d 117,120 (1967)) (alteration added). Sugar Mountain further concedes that [HN2] “‘extraordinary risks, including additional hazards caused by the negligence of the [contracting [**4] party], or others on the [contracting party’s] premises,’ are not considered assumed risks.” Sugar Mountain’s Motion, at 5 (citing McWilliams, supra, at 166-67, 152 S.E.2d at 120) (alterations in original). [HN3] “Knowledge is the watchword of the defense of assumption of risk; knowledge of the dangers and hazards to be encountered.” Cobia v. Atlantic C.L.R. Co., 188 N.C. 487, 128 S.E. 18, 20 (1924). [HN4] “This doctrine of assumption of risk is based upon knowledge or a fair and reasonable opportunity to know, and usually this knowledge and opportunity must come in time to be of use. Id. (quotations and citations omitted).

Plaintiffs allege that negligence on the part of Sugar Mountain caused their injuries. This Court has held that [HN5] a jury may find negligence from “evidence of a bare spot on a slope, evidence that defendants knew of conditions that may cause bare spots, and evidence that the bare spot was in some way concealed.” Memorandum and Order, filed May 10,2004, at 14. A corollary of that holding is that a jury may find that a concealed bare spot on a ski slope is not a risk that is normally incident to the activity [**5] of skiing when the ski slope operator knows or should have known of the offending spot and is aware of weather conditions that may cause unusual bare spots. Since this Court held that Plaintiffs have forcast evidence of each element listed above, the Court cannot decide, as a matter of law, that the assumption of risk doctrine defeats Plaintiffs’ claims. 1 Quite to the contrary, since Plaintiffs can only prevail if they prove negligence on the part of Sugar Mountain, and since a finding of negligence would mean that Plaintiffs were injured by “additional hazards caused by the negligence of [Sugar Mountain],” the assumption of risk defense cannot aid the Defendants. McWilliams, at 166-67, 152 S.E.2d at 120.

1 The Poston case illustrates this point. There, the Fourth Circuit, in finding that the plaintiff had assumed the risk of an accident, pointed out that the district court found no negligence on the part of the defendants. Poston, supra.

B. The non-resort [**6] Defendants’ motion.

1. B. Dale Stancil.

The non-resort Defendants’ memorandum advances no novel argument for summary judgment as to Stancil. Therefore, for the reasons set forth in the Court’s Memorandum and Order, the Court declines to dismiss Defendant Stancil.

2. The trust entities.

In its Memorandum and Order, the Court found that the evidence would support a finding of derivative liability, but the Court did not specifically examine whether that potential liability extended to the two irrevocable trusts. Now, the Court finds it does not.

As explained in the Memorandum and Order, Stancil and his business partner created the Sugar Mountain Irrevocable Trust in 1979 when they conveyed the land on which the ski resort sits into the trust [*613] for estate planning purposes. The Sugar Mountain Irrevocable Trust has continued to lease the land to Sugar Mountain, Inc., since 1979. The beneficiaries of the Sugar Mountain Irrevocable Trust are the Defendant B. Dale Stancil Irrevocable Trust (“Stancil Trust”), which was established for Stancil’s children, and an irrevocable trust for the children of Stancil’s business partner. Both Defendant trusts are managed by independent trustees. [**7] Memorandum and Order, at 17-18.

Although neither trustee is obligated to give Stancil access to the corpus of the trusts, the Stancil Trust does provide that the Trustee may loan funds to “the Grantor, the Grantor’s affiliated corporations or partnerships, other trusts created by the Grantor, trusts of which this trust is a beneficiary, beneficiaries of this trust or their affiliated corporations or partnerships.” Exhibit 8, B. Dale Stancil Irrevocable Trust (“Stancil Trust”), attached to Brief Opposing Summary Judgment as to Certain Defendants, at 2. The trust further provides that any such loan must be “on an arm’s length basis with good and adequate security and a fair interest rate.” Id. The trustee has, in fact, allowed Stancil to borrow money from the Stancil Trust to finance a real estate investment in Virginia and possibly to invest money in Sugar Mountain, Inc. Stancil makes interest payments to the trust in the sum of roughly $ 100,000 per year but does not make payments on the principal. Exhibit 17, Deposition of B. Dale Stancil, attached to Plaintiff’s Objections to Memorandum and Recommendation, at 44-45, 93-94, 103-04.

Plaintiffs [**8] give two theories on why liability should extend to the trust entities. The first is that, at least with respect to the Sugar Mountain Irrevocable Trust, liability is proper because the trust actually owns the premises on which Plaintiff was injured. However, it is well settled [HN6] in North Carolina that “a landlord who has neither possession nor control of the leased premises is not liable for injuries to third persons.” Vera v. Five Crow Promotions, Inc., 130 N.C. App. 645, 650, 503 S.E.2d 692, 697 (1998) (internal quotations omitted). Plaintiffs state in their objections to the Memorandum and Recommendation that the Sugar Mountain Irrevocable Trust “operated the resort,” but there is no forecast of evidence to support that statement. The original lease, however, states that Sugar Mountain Resort, Inc., agrees “to operate” the resort. Lease Agreement, contained in Appendix to Moving Defendants’ Memorandum in Support of Motion for Summary Judgment, at 4. For that reason, the fact that Sugar Mountain Irrevocable Trust was a landlord to Sugar Mountain, Inc., does not extend the liability of Sugar Mountain, Inc., to either trust entity.

Plaintiffs’ second [**9] argument for holding the trusts liable is that Stancil and the trusts are in an agency relationship. At times, Plaintiffs assert that “Stancil is the agent or servant of the trusts,” and, at other times, Plaintiffs assert that the trusts and the trustees are paid servants of Stancil. Plaintiffs’ Brief Opposing Summary Judgment as to Certain Defendants, at 20-21; Plaintiffs’ Objections to Memorandum and Recommendation, at 57-59. However, neither trust instrument mandates any ongoing obligations between Stancil and the trusts or the trustees. Exhibit 7, Sugar Mountain Irrevocable Trust, attached to Plaintiffs’ Brief Opposing Summary Judgment as to Certain Defendants; Exhibit 8, B. Dale Stancil Irrevocable Trust, supra. Although there is evidence of at least one loan from the Stancil Trust to Stancil, there is no evidence or legal authority to support the finding of an agency relationship, and there is no evidence to support a [*614] finding that the transaction was not performed at arm’s length.

For the reasons discussed above, the Court sees no basis for extending liability to irrevocable trust entities Stancil created over 20 years ago. As such, the two trust Defendants [**10] will be dismissed from this action.

3. Request for oral argument

Because of the extensive briefs filed by the parties, the Court determines there is no need for oral argument.

ORDER

IT IS, THEREFORE, ORDERED that Defendant Sugar Mountain Inc.’s, motion to reconsider is hereby DENIED.

IT IS FURTHER ORDERED that there will be no jury determination of whether Plaintiff Vincent Strawbridge assumed the risk of injury.

IT IS FURTHER ORDERED that the non-resort Defendants’ motion to reconsider is hereby GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that the Plaintiffs’ claims against the B. Dale Stancil Irrevocable Trust and the Sugar Mountain Irrevocable Trust are hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the non-resort Defendants’ request for oral argument is hereby DENIED.

THIS the 28th day of May, 2004.

LACY H. THORNBURG

UNITED STATES DISTRICT COURT JUDGE

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Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942

Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942

David J. Silva, Plaintiff, v. Mt. Bachelor, Inc., an Oregon corporation, Defendant.

Civ No. 06-6330-AA

United States District Court for the District of Oregon

2008 U.S. Dist. LEXIS 55942

July 21, 2008, Decided

COUNSEL: [*1] For Plaintiffs: David Jensen, Jensen, Elmore & Stupasky, Eugene, OR.

For Defendant: Andrew C. Balyeat, Jeffrey T. Eager, Balyeat & Eager, Bend, OR.

JUDGES: Ann Aiken, United States District Judge.

OPINION BY: Ann Aiken

OPINION

OPINION AND ORDER

AIKEN, Judge:

Plaintiff filed suit alleging premises liability and negligence arising from a skiing accident. Defendant moves for summary judgment on plaintiff’s claims, arguing that they are barred by a valid release from liability agreed to by plaintiff.

FACTS

Plaintiff is a resident of Idaho and an avid skier who has skied at numerous ski resorts throughout the United States. Plaintiff received vouchers for two days of skiing at Mt. Bachelor and two nights at the Inn of the Seventh Mountain.

On April 16, 2005, plaintiff traded his voucher for an all-day ski pass at Mt. Bachelor. At the ticket windows, Mt. Bachelor posts signs stating “YOUR TICKET IS A RELEASE” and advising skiers that their ski pass contains a release of all claims against Mt. Bachelor. The signs read:

The back of your ticket contains a release of all claims against Mt. Bachelor and its employees or agents. Read the back of your ticket before you ski or ride the lift or use any of the facilities of the area. [*2] If you purchase a ticket for someone else, you must provide this ticket release information to that person or person.

Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.

If you do not agree to be bound by the terms and conditions of the sale of your ticket, please do not purchase the ticket or use the facilities at Mt. Bachelor.

Presentation of this ticket to gain access to the premises and facilities of this area is an acknowledgment of your agreement to the terms and conditions outlined above.

Affidavit of Tom Lomax, Ex. 1.

Additionally, the back of plaintiff’s ski pass stated “READ THIS RELEASE AGREEMENT” and contained the following language:

In consideration for each lift ride, the ticket user releases and agrees to hold harmless and indemnify Mt. Bachelor, Inc., and its employees and agents from all claims for [*3] property damages, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.

Affidavit of Andrew C. Balyeat, Ex. 2, p. 2.

As plaintiff skied in an ungroomed area, he fell and injured his knee.

On December 27, 2006, plaintiff filed this lawsuit. Plaintiff alleges that defendant failed to make the ski area reasonably safe and that defendant’s negligence in failing to do so caused his injuries.

STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The materiality of a fact is determined by the substantive law on the issue. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n., 809 F.2d 626, 630 (9th Cir. 1987). The authenticity of a dispute is determined by whether the evidence is such that a reasonable jury could return a verdict for the nonmoving [*4] party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.

Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.

DISCUSSION

Defendant moves for summary judgment on grounds that plaintiff agreed to release defendant from all liability for damages arising from the use of its facilities. Defendant maintains that the release agreement is valid and enforceable and bars plaintiff’s claims. See Harmon v. Mt. Hood Meadows, Ltd., 146 Ore. App. 215, 932 P.2d 92 (1997); Mann v. Wetter, 100 Ore. App. 184, 785 P.2d 1064 (1990) .

Plaintiff concedes that one party [*5] may contract to limit another party’s liability for negligence. However, plaintiff disagrees that the release on the Mt. Bachelor ski pass is a valid release of liability. Plaintiff maintains that the release is not enforceable, because the parties were not negotiating at arms length in a commercial setting, the release was not make known to or signed by plaintiff, and the terms of the release are equivocal because it purports to cover all claims under any theory of recovery except intentional misconduct.

Plaintiff’s arguments are unavailing. First, no Oregon court has held that a release from liability in a recreational, as opposed to commercial, context offends public policy and is unenforceable. Harmon, 146 Ore. App. at 219 n. 3, 932 P. 2d 92 (“[W]e assume, without deciding, that a release relieving a ski resort solely from the consequences of its own negligence does not offend Oregon public policy.”). Further, the release from liability is not invalid as a contract of adhesion, because plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services. Mann, 100 Ore. App. at 187-88, 785 P.2d 1064.

Second, although plaintiff testified at [*6] his deposition that he did not read the release on the back of his ski pass or the signs at the ticket window, the pass and signs clearly advise skiers of the significance of the release agreement. Further, plaintiff testified that he knew and expected that his lift ticket would contain a release, based on his extensive skiing experience. Balyeat Aff., Ex. 1, pp. 14-15. Plaintiff also admitted that he understood the terms of the release, and plaintiff cites no case that requires a recreational release agreement to be signed. Id. Ex. 1, p. 15. Therefore, I find no genuine issue of fact exists as to whether the release and its terms were made known plaintiff.

Finally, the Oregon Court of Appeals has specifically held that a plaintiff must establish overbreadth of a release agreement as applied to the specific claim alleged:

Most simply, the party must show that, as applied, the contractual term is unenforceable on grounds of public policy. Here, plaintiff does not contend that Oregon public policy precludes a ski resort from limiting its liability for negligence; thus, regardless of whether defendants’ release might be unenforceable as to other plaintiffs asserting other claims, it is [*7] not unenforceable as applied to plaintiff.

Harmon, 146 Ore. App. at 221-22 (emphasis in original).

Here, plaintiff asserts negligence claims against defendant and concedes that a defendant may limit its liability for negligence. Therefore, the fact that the release agreement purports to cover other theories of liability does not preclude enforcement of the release in this case. As such, plaintiff’s claims are barred.

CONCLUSION

Defendant’s motion for summary judgment (doc. 13) is GRANTED. This case is DISMISSED.

IT IS SO ORDERED.

Dated this 21 day of July, 2008.

/s/ Ann Aiken

Ann Aiken

United States District Judge

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