Convoluted procedural issues at the trial court, created a ripe field for confusion, but the appellate court held the release bard the claims of the plaintiff in the skier v. skier collision where the ski resort was also sued.

Once the jury found there was no gross negligence on the part of the plaintiff, the release stopped all other claims of the plaintiff.

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

State: California Court of Appeals, Fourth District, Third Division

Plaintiff: Grant Tuttle et al

Defendant: Heavenly Valley, L.P.

Plaintiff Claims: negligence

Defendant Defenses: …implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.

Holding: For the Defendant

Year: 2020

Summary

Reading the case is confusing. A lot of the decision revolves around stipulated jury special verdict form and how the case was decided at the trial level after the jury rendered a verdict. The verdict was sort of in favor of the plaintiff; however, the stipulated part of the proceedings were used by the judge to hold for the defendant.

The plaintiff, deceased, season pass holder was hit on the slopes by a snowboarder. Her family sued the snowboarder and the ski area. The jury held the ski area was negligent but not grossly negligent. Because the deceased plaintiff had signed a release, the release stopped the negligence claims.

Facts

The jury found the plaintiff negligent, but not grossly negligent. The judge then ruled the release removed the duty on the party of the defendant so therefore the defendant was not liable.

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

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

The appellate court first looked at the release. The first analysis is what made this case stand out.

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all.

You cannot sue, because you assume the inherent risks of a sport. Therefore, a release that only protects the defendant from the inherent risks is worthless, as stated by the court.

To help everyone understand the statement above made by the court, the court reviewed Assumption of the Risk under California law.

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight) and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing. Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

[Emphasize added]

A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk.

[Emphasize added]

If a defendant increases the risk to participants, then the defendant is liable for any injury to a participant that occurs because of the increase in risk caused by the defendant. However, a participant may still choose to participate and may still be stopped from suing for injuries received from the increased risk if the participants know of the risks and voluntarily assumes the risk. This is called Secondary Assumption of the Risk.

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.

Secondary Assumption of the risk is part of the defenses a release provides to a defendant. However, a release provides broader and more defenses then Secondary Assumption of the risk provides. On top of that, by signing a written document, the risk outlined in the release, if any, are assumed by the participant because the document is (and should be) a release and an Express Assumption of the Risk document.

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

Not all court think exactly along these lines when reviewing releases. However, many do and all courts reach the same conclusion, just by different legal analysis.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. The legal issue in an express assumption of the risk case is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.’

[Emphasize added]

Assumption of the risk is a great defense. However, a release provides a greater defense, a better defense and should, if properly written to incorporate the defenses available in all types of assumption of the risk.

Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ ([courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)

There is one caveat with all of this. If they actions of the defendant in changing the risk, increase the risk to the level of gross negligence, a release in most states does not act to bar gross negligence.

As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence.

The court then summed up its review of the defenses of assumption of the risk and release.

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

[Emphasize added]

In reviewing the release the appellate court found it stopped the negligence claims of the plaintiff.

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence.

The court then applied its ruling on the release to the plaintiff’s argument that the defendant was grossly negligent.

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment.

The rest of the case then goes on to evaluate the appellate court’s findings and the different way the court came to its ruling at the trial court level.

We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; however, the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law.

The defendant won because the jury did not find the defendant was grossly negligent, and the release stopped all other claims of the plaintiff.

So Now What?

There are several things to learn from this case. The first is the intricacies, procedures and rulings that the trial system has, make any trial a nightmare now days. It is nothing like TV, more like a game of war played out on a board with dozens of books or rules that must be consulted before every move.

The second is the value and power of a release. Even after the plaintiff won the trial, the release came back into to play to defeat the claims of the plaintiff.

Thirdly the education the court provided and copies into this post about assumption of the risk as a defense, the different types of assumption of the risk and how your release should incorporate assumption of the risk.

Make sure your release incorporates assumption of the risk language and is written to protect you in the state where you are doing business for the business you are running.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Under California law, increasing the risk or changing the inherent risk of a sport or race eliminates the defense of assumption of the risk. Defendant found grossly negligent in its course design.

Wheel chair racer able to recover from the race organizer when he rode off the course after relying on the map and virtual tour the course director had created.

Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

State: California: California Court of Appeals, Fourth District, First Division

Plaintiff: Craig Blanchette

Defendant: Competitor Group, Inc

Plaintiff Claims:

Defendant Defenses:

Holding: For the Plaintiff

Year: 2019

Summary

A wheel chair racer was injured when the course was changed after the wheelchair racer had reviewed the map and the virtual tour of the course. Because the defendant had substantially increased the risk to the racers by changing the course, the defense of assumption of the risk was not available to the defendant.

Facts

Plaintiff Craig Blanchette (Plaintiff), then an elite wheelchair racer, competed in the 2014 San Diego Rock ‘n’ Roll Marathon (Marathon), which was owned and operated by defendant Competitor Group, Inc. (Defendant). During the race, Plaintiff was injured as he attempted a 90 degree left-hand turn, could not complete the turn, went through the orange traffic cones that marked the course boundary, and crashed into a car stopped at a traffic light in a lane outside the course.

Following a jury trial on one cause of action for gross negligence, the court entered a judgment in favor of Plaintiff and against Defendant in the amount of $3.2 million.

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

The defendant argued at the appellate court that the plaintiff failed to establish gross negligence and that the defendant did not unreasonably increase the risk to the plaintiff. If the plaintiff did not unreasonably increase the risk to the plaintiff, then the plaintiff assumed the risk and could not recover for his injuries.

Under these standards, as we will explain, substantial evidence supports the jury’s findings both that Defendant was grossly negligent (i.e., Plaintiff proved Defendant’s extreme departure from the ordinary standard of care) and that Plaintiff did not assume the risk of the injury he suffered (i.e., Defendant failed to prove that it did not unreasonably increase the risks to Plaintiff over and above those inherent in wheelchair racing)

The court first looked at the issue of whether or not the defendant was grossly negligent.

Ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” ‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, ‘” amounts to ordinary negligence.'” In contrast, to establish gross negligence, a plaintiff must prove “either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’

California does not recognize gross negligence.

Rather, as our Supreme Court explained, “the distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.”

So even though California does not recognize gross negligence as a claim, it is defined as something falling short of reckless disregard of consequences and generates a harsher legal consequence. Whether that is defined as more money is not defined in the decision.

On appeal, the appellate court must look at the facts in favor of the plaintiff. Reviewing the facts and the jury’s decision, the court found there was enough evidence to support the jury’s conclusion. “Defendant’s behavior was an extreme departure from the ordinary standard of conduct.”

Although California does not support gross negligence, according to this decision, the court found, the plaintiff proved the defendant was grossly negligent.

The court then looked at assumption of the risk.

Primary assumption of risk, when applicable, “completely bars the plaintiff’s recovery,” whereas secondary assumption of risk” ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.'” The presence or absence of duty determines whether an application of the defense will result in a complete bar (primary assumption of the risk) or merely a determination of comparative fault (secondary assumption of the risk).

There is no duty to reduce the inherent risks in sports. Requiring a mitigation of the inherent risks of sports would alter the nature of the game.

The test for whether primary assumption of risk applies is whether the activity” ‘involv[es] an inherent risk of injury to voluntary participants… where the risk cannot be eliminated without altering the fundamental nature of the activity.'” “The test is objective; it ‘depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity’ rather than ‘the particular plaintiff’s subjective knowledge and awareness[.]'”

There are three factors to be determined by the trial court in reviewing the defense of assumption of the risk. “…whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.”

The defendant argued it did not do anything to increase the risk of harm to the plaintiff. The defendant defined the risk as: “The pertinent inherent risk was that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

The court again found the plaintiff’s argument convincing. The actions of the defendant did increase the risk of harm to the plaintiff.

[Defendant] increased the risks inherent in wheelchair racing in multiple ways, including: (1) by failing to indicate on the basic course map provided to all competitors that the outside lane of 11th Avenue (the necessary ‘exit lane’ for a fast-moving wheelchair) would not be available on race day (or by failing to at least direct competitors to its much-heralded turn-by-turn directions for information regarding lane closures); (2) by affirmatively representing to racers through its ‘virtual tour’ that all lanes on 11th Avenue would be available to complete that turn; (3) by removing 13 feet… of the roadway from the critical ‘exit lane’ about an hour before the race began without ever alerting at least the… wheelchair racers to this change; and (4) by [f]ailing to take other necessary precautions (for instance, with announcements, required tours, better barricades, bigger signs, or sufficient spotters) to advise racers of that particularly precarious intersection.”

The bigger issue was the defendant changed the course from what was shown on the map and the virtual tour. The changes made by the defendant occurred where the plaintiff crashed.

According to Plaintiff, an hour before the race began with the wheelchair competitors already at the starting line; Defendant increased the risks by: eliminating the west lane of 11th Avenue, whereas the basic course map and virtual tour video did not indicate the loss of a lane; and allowing vehicle traffic in the west lane of 11th Avenue, where wheelchair racers would ordinarily complete their left turns from B Street, separating the racecourse from vehicle traffic by plastic traffic cones placed 15 feet apart.

Because there was a difference of opinion, because each side had plausible arguments to sort its theory of the case, the facts must be decided by the trier of fact, the jury. Because there was enough evidence to support the jury’s conclusion, the decision of the jury would be upheld on appeal.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff assumed the risk of the injuries he sustained by competing as a wheelchair racer at the Marathon.

So Now What?

Simply, the defendant had created a course, mapped it and provided a video tour of the course to the racers. The racer’s relied on the map and video tour of the course. When the course was changed it increased the risk to the racers causing injury.

When you provide information to guests, you must expect them to rely on that information and the information is wrong, you are possibly liable for any injury arising from the changes, or the increased risk of harm to the participants.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Grant Tuttle et al., Plaintiffs and Appellants,

v.

Heavenly Valley, L.P., Defendant and Respondent.

G056427

California Court of Appeals, Fourth District, Third Division

February 5, 2020

NOT TO BE PUBLISHED

Appeal from a judgment and postjudgment orders of the Superior Court of Orange County No. 30-2015- 00813230 Nathan R. Scott, Judge. Affirmed.

The Simon Law Group, Thomas J. Conroy; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter, Patrick M. Kelly and John J. Immordino for Defendant and Respondent.

OPINION

DUNNING, J. [*]

INTRODUCTION

Skier and Heavenly Valley season passholder Dana Tuttle died after she and a snowboarder collided at Heavenly Valley’s resort in South Lake Tahoe. Tuttle’s spouse and sons sued Heavenly Valley and the snowboarder.[ 1] Defendant asserted as defenses the doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Despite these conclusions, the jury was still asked to decide whether defendant ;unreasonably increased the risks… over and above those inherent in the sport of skiing. The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Finding Tuttle and defendant each 50 percent at fault, the jury awarded plaintiffs substantial damages.

A judgment in plaintiffs’ favor typically would have followed as a matter of course unless defendant formally moved for, and was granted, a judgment notwithstanding the verdict (JNOV). However, the trial court determined the jury’s factual finding that defendant was not grossly negligent, coupled with its legal conclusion that the release provided a complete defense to plaintiffs’ lawsuit, compelled entry of a judgment in defendant’s favor, even without a posttrial JNOV motion.

Plaintiffs appeal, but do not challenge the jury instructions, the special verdict form, or the finding that defendant did not act with gross negligence. Plaintiffs urge this court to (1) review the release do novo and conclude it does not cover Tuttle’s accident, (2) hold the release violates public policy, (3) find that defendant invited errors in the special verdict form and jury instructions and forfeited the opportunity for entry of judgment in its favor without first formally moving for JNOV, and (4) order a new trial. We find no error, however, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I.

THE RELEASE

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.[ 2] The release begins with an all-capital advisement: WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS. Salient provisions of the release are found in paragraphs 1, 2, 5, 6, and 13.

In paragraph 1, Tuttle acknowledged snow skiing can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH. In paragraph 2, she ASSUME[D] ALL RISKS… known or unknown, inherent or otherwise [associated with skiing at the resort, including] falling; slick or uneven surfaces; surface and subsurface snow conditions;… variations in terrain; design and condition of man-made facilities and/or terrain features;… [and] collisions. Paragraph 5 advised: The description of the risks listed above is not complete and participating in the Activities may be dangerous and may also include risks which are inherent and/or which cannot be reasonably avoided without changing the nature of the Activities.

Paragraph 6 included Tuttle’s express agreement NOT TO SUE AND TO RELEASE [DEFENDANT] FROM ALL LIABILITY… for… injury or loss to [her], including death. This paragraph specifically advised that Tuttle was releasing all CLAIMS BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE…. In paragraph 13, Tuttle agreed the release was binding to the fullest extent permitted by law… on [her] heirs, next of kin, executors and personal representatives.

II.

THE ACCIDENT AND THE LAWSUIT

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

Plaintiffs sued defendant and Slater.[ 3] Defendant raised the defenses of implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.

III.

THE JURY TRIAL

The jury trial spanned five weeks.[ 4] The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing and (2) whether defendant was grossly negligent. The special verdict form further instructed the jury that if it answered yes to either question, it was to make findings regarding the amount of damages and allocation of fault. Before the final witness concluded his testimony, the trial court confirmed that counsel were not making any changes to the special verdict form.

The following day, at the close of evidence and outside the jurors’ presence, the trial court denied plaintiffs’ motion for directed verdict and defendant’s renewed motion for nonsuit.[ 5] The trial court rejected plaintiffs’ argument the release was fatally ambiguous with regard to the risks involved in the accident. Given the absence of competent extrinsic evidence regarding the release, the trial court determined its interpretation presented a legal question for the court: So I will construe the release, relying on its plain language. I find that it is not ambiguous. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.

In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. For these reasons, the plaintiffs’ motion for directed verdict is denied.

The rulings prompted defendant’s counsel to suggest additional jury instructions and a revision to the special verdict form might be necessary to address the fact issues surrounding Tuttle’s execution of the release. The following colloquy then ensued: [Plaintiffs’ counsel]: Your Honor I’ll shortcut the whole thing. With the court’s ruling, I’ll stipulate to the formation of the contract and proceed with the verdict form as is, so no need for additional instructions. [¶] [Defendant’s counsel]: I’m sorry. To be clear, we have a stipulation that the contract existed and that the contract included the release and waiver language? [¶] [Plaintiffs’ counsel]: Right. The release and-release of liability and waiver was executed-existed and was executed. That’s the stipulation. [¶] [Defendant’s counsel]: Accepted, your Honor. [¶] The Court: So stipulated. (Italics added.)

At this point, the jurors returned to the courtroom. The trial court read the jury instructions, and plaintiffs’ counsel began his closing argument. He had this to say about the release: What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release releases. It does not release gross negligence. It does not release what we’re talking about.

At the beginning of the afternoon session, before defendant’s closing argument, the trial court and counsel met again outside the jurors’ presence to discuss the stipulation concerning the release. Plaintiffs’ counsel maintained the jury should not hear about the stipulation. When the trial court repeated its concern the jury could end up finding that the release was not valid and invited counsel to revisit the special verdict form, plaintiffs’ counsel replied there was no need as the release in evidence releases negligence. And the questions on the verdict form go[] to gross negligence, and-this doesn’t have to do with the release, but the increase of unreasonable risk. Defendant’s counsel remarked the dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form. Plaintiffs’ counsel concurred: Right. Counsel then agreed the stipulation would not be read to the jury.

Closing arguments continued. Defendant’s counsel did not mention the release in his closing argument. Neither did plaintiffs’ counsel in his rebuttal argument. There, he referred to the special verdict form and told the jurors, [a]t the end of the day, it’s a simple exercise. That jury form…. [¶]… If you perceive wrong on the part of [defendant], you tick those two boxes. And there’s two of them-you tick them both. Procedurally, you tick the one about increased unreasonable risk, and then you tick the one about gross negligence. If you perceive wrong, that’s what you do.

The jury was never told the release provided a complete defense to defendant’s ordinary negligence.

IV.

THE SPECIAL VERDICT

As to defendant, the special verdict form included three liability questions, three damages questions, and three comparative fault/apportionment of liability questions. The liability questions read as follows:

3. Did Heavenly Valley do something or fail to do something that unreasonably increased the risks to Dana Tuttle over and above those inherent in the sport of skiing?

Yes X No __

4. Was Heavenly Valley grossly negligent in doing something or failing to do something that caused harm to Dana Tuttle?

Yes __ No X

If you answered Yes’ to either question 3 or 4, then answer question 5. [¶] If you answered No’ to both questions 3 and 4, and also answered No’ to either question 1 or 2, then sign and return this verdict form. You do not need to answer any more questions.

If you answered Yes’ to both questions 1 and 2, and answered No’ to both questions 3 and 4, insert the number 0′ next to Heavenly Valley’s name in question 11, skip question 5, and answer questions 6-11.

5. Was Heavenly Valley’s conduct a substantial factor in causing harm to Dana Tuttle?

Yes X No __

Because the jury answered yes to question 5, it was instructed to answer the remaining questions. The jury determined plaintiffs’ damages were $2, 131, 831, with Tuttle and defendant sharing equal responsibility.

Immediately after polling the jurors, the trial court asked plaintiffs’ counsel to prepare the judgment and submit it the next morning. The trial court then thanked and discharged the jury without objection from trial counsel. No one noted on the record that express assumption of the risk was a complete defense to the jury’s verdict.

V.

ENTRY OF A DEFENSE JUDGMENT

At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1, 065, 915.50, plus costs and interest. Defendant objected on the basis the jury found defendant was not grossly negligent and the release provided a complete and total defense to this entire lawsuit and Plaintiffs should take nothing.[ 6]

After briefing and a hearing, the trial court sustained defendant’s objection to plaintiffs’ proposed judgment. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle. The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. With the parties’ stipulation that Tuttle knowingly executed the release and the jury’s factual finding that defendant did not act with gross negligence, the trial court further explained there was only one legal conclusion: [D]efendant has prevailed on the express assumption issue and negate[d] the defendant’s duty of care, an element of the plaintiff’s case.’

The trial court acknowledged the structure of the special verdict form erroneously directed the jury to continue to answer questions on damages after finding defendant had not been grossly negligent. The trial court found, however, the jury’s specific finding that defendant did not act with gross negligence was not inconsistent with, but instead overrode, the award of damages.

The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. Instead, it entered judgment in favor of defendant.

VI.

PLAINTIFFS’ POSTJUDGMENT MOTIONS

The defense judgment reiterated the jury’s special verdict findings and stated in relevant part: It appearing that by reason of those special verdicts, and the Court’s interpretation of the terms of the legal contract in Decedent Dana Tuttle’s season ski pass agreement, and [the] legal conclusions as set forth in that certain Order entered on March 9, 2018, Defendants Heavenly Valley L.P., and Anthony Slater are entitled to judgment on Plaintiffs’ complaint. (Some capitalization omitted.)

Plaintiffs filed a motion to set aside the judgment under Code of Civil Procedure section 663 on the ground the judgment was not consistent with the special verdict and adversely affected plaintiffs’ substantial rights. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross negligence, [ 7] the special verdict was hopelessly contradictory because the jury’s gross negligence finding imposed no liability, but its apportionment of fault between Tuttle and defendant did, and defendant invited errors.

The trial court denied plaintiffs’ postjudgment motions. Plaintiffs timely appealed.

DISCUSSION

I.

THE RELEASE COVERED TUTTLE’S ACCIDENT.

The trial court found as a matter of law that defendant’s release was not ambiguous and covered Tuttle’s accident. Our review of the release is de novo. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754.) No extrinsic evidence concerning the meaning of the release was presented in the trial court, so the scope of a release is determined by [its] express language. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357 (Benedek).)

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all. (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1490 (Cohen); Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291 (Zipusch).) To understand the distinction, we detour briefly to discuss the doctrines of implied and express assumption of the risk.

A.

OVERVIEW: ASSUMPTION OF THE RISK

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight)[ 8] and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing.[ 9] Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. (Id. at p. 321.) Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367 (Allan).) Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. (Allan, supra, 51 Cal.App.4th at p. 1367, italics omitted.) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight, supra, 3 Cal.4th at p. 308.)

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. (Knight, supra, 3 Cal.4th at p. 314.) Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility. (Ibid.; see Allan, supra, 51 Cal.App.4th at p. 1367.)

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. (Knight, supra, 3 Cal.4th at p. 309, fn. 4, italics added.) The legal issue in an express assumption of the risk case is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.’ (Hass, supra, 26 Cal.App.5th at p. 27.)

Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ [Citation.]’ [Citation.] As we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ (Cohen, supra, 159 Cal.App.4th at p. 1485; see Allan, supra, 51 Cal.App.4th at p. 1374 [courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777 (Santa Barbara).)

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

B.

ANALYSIS

The parties stipulated Tuttle executed the release with full knowledge of its content; consequently, the validity of the release is not before us. The jury unanimously agreed defendant’s conduct did not constitute gross negligence, and plaintiffs do not challenge the sufficiency of the evidence to support that finding; thus, no public policy considerations preclude its enforcement. Our only concern is whether the release in this case negated the duty element of plaintiffs’ causes of action.’ (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719.) If so, it applied to any ordinary negligence by defendant. (Benedek, supra, 104 Cal.App.4th at p. 1357.)

Defendant’s release did precisely that. Tuttle assumed ALL RISKS associated with [skiing], known or unknown, inherent or otherwise. She also agreed not to sue defendant and to release it FROM ALL LIABILITY… BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE. No more was required.

Defendant’s use of the phrase, inherent or otherwise did not create any ambiguity or confusion. As the United States Court of Appeals for the Tenth Circuit has recognized, [t]he term otherwise,’ when paired with an adjective or adverb to indicate its contrary’… is best understood to mean NOT.’ Webster’s Third New Int’l. Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. (Brigance v. Vail Summit Resorts, Inc. (10th Cir. 2018) 883 F.3d 1243, 1256-1257.)

Plaintiffs’ contention that defendant’s release bears many similarities to the release in Cohen, supra, 159 Cal.App.4th 1476 misses the mark. The plaintiff in Cohen fell from a rented horse on a guided trail ride. She sued the stable, alleging its employee, the trail guide, negligently and unexpectedly provoke[d] a horse to bolt and run without warning (id. at p.1492), causing her to lose control of her horse (id. at p. 1482). The trial court granted the defendant’s motion for summary judgment based on the plaintiff’s written agreement to assume responsibility for the risks identified herein and those risks not specifically identified.’ (Id. at p. 1486, italics omitted.)

The Court of Appeal reversed. The Cohen majority noted the trial court apparently granted summary judgment on the theory that the risks not specifically identified’ in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding. (Cohen, supra, 159 Cal.App.4th at pp. 1486-1487, italics omitted.) This interpretation was erroneous because the stable’s agreement did not explicitly advise that the plaintiff was releasing the defendant from liability for the defendant’s negligence. Although a release is not required to use the word negligence’ or any particular verbiage… [it] must inform the releasor that it applies to misconduct on the part of the releasee. (Id. at pp. 1488 1489.) The release in Cohen used the word negligence only once, in reference to the plaintiff’s negligence, not that of the defendant. The stable’s release also did not indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities. (Id. at p. 1489.)

Having found the release ineffective to trigger the doctrine of express assumption of the risk, the Cohen majority turned to the doctrines of implied assumption of the risk, i.e., it focused on the inherent risks of horseback riding. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. (Cohen, supra, 159 Cal.App.4th at p. 1494-1495.)

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence. (Knight, supra, 3 Cal.4th at pp. 308-309, fn. 4.)

The release in Zipusch, supra, 155 Cal.App.4th 1281 mirrors the one in Cohen, but not the one in this case. As in Cohen, the plaintiff in Zipusch did not agree to assume the risk of negligence by the defendant gym. Accordingly, the agreement was ineffective as an express release; and the issue for the Court of Appeal was whether the plaintiff’s injury was the result of an inherent risk of exercising in a gym, in which case the primary assumption of the risk doctrine would apply, or whether it was the result of the gym increasing the inherent risks of exercise, in which case the secondary assumption of the risk doctrine would apply. (Id. at pp. 1291-1292.)

Hass, supra, 26 Cal.App.5th 11 is instructive. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. The analysis in Hass applies in this case.

In Hass, the plaintiffs’ decedent suffered a fatal cardiac arrest after finishing a half marathon organized and sponsored by the defendant. His heirs sued for wrongful death. The Court of Appeal held that cardiac arrest is an inherent risk of running a race, but a triable issue of material fact existed as to whether the defendant acted with gross negligence in failing to provide timely and adequate emergency medical services. (Hass, supra, 26 Cal.App.5that p. 18.)

Addressing the release, Hass held: By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release [the defendant] (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the [plaintiffs’] wrongful death claim for ordinary negligence. [ 10] (Hass, supra, 26 Cal.App.5th at p. 27.)

Our independent examination of defendant’s release convinces us Tuttle assumed all risks that might arise from skiing at defendant’s resort, including risks created by defendant’s ordinary negligence. With a valid release and no gross negligence by defendant, the issue of inherent risk was no longer relevant. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 353 [where the doctrine of express assumption of risk applies, implied assumption of the risk is no longer considered].)

II.

ENFORCEMENT OF THE RELEASE DOES NOT VIOLATE CALIFORNIA’S PUBLIC POLICY.

Plaintiffs next argue the release’s exculpatory language violates California’s public policy. The linchpin of their argument is that defendant’s act of unreasonably increasing the inherent risk of an active sport was neither ordinary negligence nor gross negligence, but a separate category of aggravated negligence. Plaintiffs argue Santa Barbara, supra, 41 Cal.4th 747 left open the question of whether public policy precludes the contractual release of other forms of aggravated’ misconduct, in addition to gross negligence. (Some capitalization omitted.) The argument is raised for the first time on appeal; it has no merit.

In Santa Barbara, a parent signed an agreement releasing the defendants from liability for any negligent act’ related to her child’s participation in summer camp. (Santa Barbara, supra, 41 Cal.4th at p. 750.) The child drowned. (Ibid.) The trial court denied the defendants’ motion for summary judgment based on the release, and the appellate court denied defendants’ petition for writ of mandate challenging that ruling. (Id. at p. 753.) The sole issue before the Supreme Court was whether a release of liability relating to recreational activities generally is effective as to gross negligence. (Id. at p. 750.)

The defendants argued California law, specifically Civil Code section 1668, [ 11] impliedly allowed recreational activity releases to be enforced against a claim of gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 762-763.) At the time, no published California decision voided[] an agreement purporting to release liability for future gross negligence. (Id. at p. 758.) The Santa Barbara majority turned to out-of-state authorities and rejected the defendants’ position based on public policy principles. (Id. at pp. 760-762.)

References in Santa Barbara to aggravated wrongs (a term used by Prosser & Keeton, The Law of Torts (5th ed. 1984) § 68, p. 484) (Santa Barbara, supra, 41 Cal.4th at pp. 762, 765, 776) and aggravated misconduct (id. at pp. 760, 762, 777, fn. 54) do not suggest a new species of negligence that might affect a liability release for recreational activities. Rather, those phrases encompassed misconduct that included gross negligence and willful acts. (Id. at p. 754, fn. 4.) As the majority held, the distinction between ordinary and gross negligence’ reflects a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary. (Id. at p. 776.) With a valid release, a theory of gross negligence, if supported by evidence showing the existence of a triable issue, is the only negligence-based theory that is potentially open to [the] plaintiffs. (Santa Barbara, supra, 41 Cal.4th at p. 781.)

Here, no public policy considerations preclude the enforcement of defendant’s recreational activity release that exculpated it from liability for its own ordinary negligence. (Knight, supra, 3 Cal.4th at p. 309, fn. 4.)

III.

THE TRIAL COURT DID NOT ERR BY ENTERING JUDGMENT IN FAVOR OF DEFENDANT.

Plaintiffs argue the trial court should have entered judgment in their favor regardless of the jury’s finding concerning gross negligence because the jury made findings on damages and apportioned fault between Tuttle and defendant. They contend the responsibility to seek a JNOV or some other postjudgment remedy should have fallen to defendant, not plaintiffs. But once the trial court determined the special verdict was not inconsistent and Tuttle’s express release provided a complete defense as a matter of law, entry of a defense judgment was proper. Even if the trial court erred in entering a defense judgment without a formal motion for JNOV, any error was harmless.

A.

LEGAL PRINCIPLES GOVERNING SPECIAL VERDICTS

A special verdict must include conclusions of fact as established by the evidence… [so] that nothing shall remain to the Court but to draw from them conclusions of law. (Code Civ. Proc., § 624.) A special verdict is not a judgment. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332.) If a special verdict includes findings on inconsistent theories, the findings on the legal theory that does not control the outcome of the litigation may be disregarded as surplusage. (Baird v. Ocequeda (1937) 8 Cal.2d 700, 703.) Additionally, where no objection is made before the jury is discharged, it falls to the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.’ (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457; see Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1091-1092.)

B.

THE TRIAL COURT’S RULING

As noted, the jury was discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. The trial court recognized and fulfilled its duty to interpret the special verdict: After [this] court rejected several unilateral proposals, the parties stipulated to a special verdict form…. But they did so before the court construed the release in response to defendant’s nonsuit motion and before the parties stipulated Ms. Tuttle entered into the release. [¶] Thus, the form presented only two questions addressing the assumption of the risk. Question #3 asked whether defendant unreasonably increased the inherent risks of skiing. Question #4 asked whether defendant acted with gross negligence. [¶] The answer NO’ to either Question #3 or #4 exonerates defendant. Answering No’ to Question #3 would foreclose the only relevant exception to the primary assumption defense. Answering NO’ to Question #4 would foreclose the only relevant exception to the express assumption defense. [¶] But the form allowed the jurors to answer YES’ to one question and NO’ to [the] other one and continue to answer questions, including determining and allocating damages. (Italics and bold omitted.)

The trial court further explained: Here, the specific finding that defendant did not act with gross negligence controls over the general award of damages. The jury was properly instructed with the definition of gross negligence. The jury received percipient and expert testimony that, if credited, showed defendant did not act with gross negligence. The parties argued whether defendant [did] or did not act with gross negligence. The answer NO’ to Question #4 unambiguously shows the jury found defendant did not act with gross negligence. That resolved the only factual question on the express assumption issue in favor of defendant. [¶]… [¶] The award of damages is not a hopeless inconsistency so much as it is mere surplusage once the court honors the jury’s unambiguous finding that defendant acted without gross negligence and draws the legal conclusion-a conclusion that [the] jury was not asked to draw-that the release covers these claims and effects an express assumption of the risk.

The trial court also correctly concluded the jury’s findings on Question[] #3 and Question #4 [were not] irreconcilable. The concept of unreasonably increasing inherent risks is distinct from the concept of gross negligence. In a particular case, the same facts that show an unreasonable increase in the inherent risks may also show gross negligence. [Citation.] Overlap is possible, [but not] necessary. In this case, the jury found no such overlap. There is no inconsistency in defendant losing on the primary assumption issue but prevailing on the express assumption issue. And that, after five weeks of trial, is what happened here.

C.

ANALYSIS

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. (Santa Barbara, supra, 41 Cal.4th at p. 781.) There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment. Accordingly, Question No. 3 concerning whether defendant unreasonably increased the inherent risk should have been removed from the special verdict form.

Also, the special verdict form should have instructed the jury that if it found defendant was not grossly negligent, it should not answer the remaining questions. The jury’s compliance with the trial court’s instructions and consequent damages-related findings were surplusage, but did not create an inconsistency with its finding that defendant did not act with gross negligence. The trial court correctly entered judgment in favor of defendant based on the dispositive finding of no gross negligence. The trial court’s explanation of its ruling demonstrates the trial court’s application of the correct legal principles in doing so.

In their appellate opening brief, plaintiffs argue defendant forfeited any objection to the special verdict form because it (1) failed to object to the special verdict before the jury was discharged; (2) invited the erroneous instructions in the special verdict form because it had participated in drafting it; and (3) failed to bring a statutorily authorized post-trial motion challenging the special verdict form. Although the special verdict form should have been amended before deliberations, there is no issue of forfeiture or invited error on defendant’s part.

The parties jointly agreed on the wording of the special verdict form. Any fault in the drafting cannot be assigned to one side over the other, and all parties bear responsibility for the erroneous directions in the stipulated special verdict form. Nothing in the record suggests the special verdict form or the objection to entry of a plaintiffs’ judgment was the product of gamesmanship. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183.)

Additionally, plaintiffs’ trial strategy to stipulate to Tuttle’s knowing execution of the release was wise: Evidence Tuttle understood the release was overwhelming. As part of the discussion pertaining to the parties’ stipulation, however, both the trial court and defendant’s trial counsel questioned the adequacy of the special verdict form. But plaintiffs’ trial counsel maintained the special verdict form was fine as is and persuasively argued against making any changes or advising the jury of the stipulation. This meant the doctrine of implied secondary assumption of the risk was not relevant unless the jury found defendant acted with gross negligence.

We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; but the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law. Under these circumstances, it would have been a waste of resources to require defendant, or the trial court on its own initiative, to formally notice a motion for JNOV (Code Civ. Proc., § 629, subd. (a)).

Even if we found the procedure to have been erroneous, the error would have been procedural, not substantive; and, plaintiffs have not demonstrated the likelihood of a different outcome. (See Webb v. Special Electric, Co., Inc. (2016) 63 Cal.4th 167, 179 [because the defendant did not have a complete defense as a matter of law, the entry of JNOV was unjustified [on the merits]. In light of this conclusion, we need not reach plaintiffs’ claims of procedural error].) Defendant had a complete defense; there is no reasonable probability the trial court would have denied a formal JNOV motion.

Plaintiffs argue they relied on the state of the special verdict form in making the decision to stipulate to the validity of the release agreement. Plaintiffs suggest defendant, by agreeing to the special verdict form, tacitly stipulated to a deviation from the applicable law to allow plaintiffs to recover damages based solely on a finding defendant had unreasonably increased the inherent risk, notwithstanding the existence of a valid, applicable release. Such an argument is without support in the law. It is also belied by the record. As already discussed, both defendant’s counsel and the trial court raised questions concerning the special verdict form once the parties stipulated to Tuttle’s execution of the release. Plaintiffs’ trial counsel maintained there should be no changes in the jury instructions or the special verdict form.

IV.

PLAINTIFFS ARE NOT ENTITLED TO A NEW TRIAL.

Plaintiffs argued in their motion for new trial that the special verdict was hopelessly contradictory and, consequently, against the law. Plaintiffs also asserted there were errors in the special verdict form, they excepted to those errors, but then were penalized because the jury’s finding of unreasonably increased inherent risk has ex post facto been deemed insufficient to impose liability on Defendant Heavenly Valley. Although plaintiffs did not claim instructional error in the trial court, they complained the modified version of CACI No. 431, [ 12] to which they agreed, misled the jurors into thinking they could find defendant liable if they found it unreasonably increased the inherent risk of skiing or if they found it acted with gross negligence.

On appeal, plaintiffs ask this court to reverse the denial of their motion for a new trial. They fail to cite applicable authorities to support their arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Instead, they contend the trial court changed the rules of the game only after the game had already been played, leaving the parties and their counsel without the opportunity to satisfy those new rules, and robbing the jury of the ability to assess all viable liability options. Plaintiffs add they stipulated to Tuttle’s execution of the release in reliance on the wording of the then existing Special Verdict form, which… made clear that a finding of gross negligence was only one of two disjunctive liability paths, and was not necessary to impose liability against Heavenly. As a consequence, [plaintiffs]… were… induced into a stipulation concerning that issue in light of the wording of the existing Special Verdict form, an unfair sequence which the trial court itself acknowledged worked against [plaintiffs]. This characterization misstates the record.

First, the trial court made legal rulings throughout trial when called upon to do so. The trial court did not change any of its pronouncements of law after the trial concluded. The record shows the trial court gave the parties every opportunity to revisit the jury instructions and special verdict form before they were given to the jury.

Second, although the trial court described the sequence of events, it did not suggest the events were unfair or worked against plaintiffs. As discussed ante, when the trial court denied defendant’s renewed motion for nonsuit, it advised counsel the jury must decide whether Tuttle actually executed the release. Because neither side proposed jury instructions or questions on the special verdict form addressing the issue of contract formation, defendant’s counsel suggested they should revisit both the jury instructions and the special verdict form. Plaintiffs’ trial counsel immediately stipulated to Tuttle’s execution of the release and advised he would proceed with the verdict form as is. This statement calls into question plaintiffs’ claim they were induced into entering into the stipulation.

Third−and significantly−plaintiffs’ counsel did not discuss disjunctive liability paths in his closing arguments. Instead, plaintiffs’ counsel focused on the evidence and urged the jury to find gross negligence: What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release releases. It does not release gross negligence. It does not release what we’re talking about.

The jury unanimously found defendant did not act with gross negligence. The jury’s function is to make ultimate findings of fact, and it is the trial court’s responsibility to apply the law to the relevant findings of fact. Nothing in the special verdict form misled the jury with regard to the factors it should consider in making any particular finding. We conclude the trial court correctly applied the law and entered judgment accordingly.

DISPOSITION

The judgment and post judgment orders are affirmed. Respondents shall recover costs on appeal.

WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.

———

Notes:

[*] Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[ 1] We refer to Dana Tuttle as Tuttle and to her spouse and sons collectively as plaintiffs. We refer to Heavenly Valley as defendant.

Plaintiffs erroneously identified Heavenly Valley in the complaint as the Vail Corporation. There is no dispute Heavenly Valley is the correct defendant in this case.

[ 2] Tuttle purchased the ski pass online. No actual signature was required; she signed the release by clicking the appropriate box on the electronic form.

[ 3] The jury exonerated Slater from liability. He is not a party to this appeal.

[ 4] The appellate record is lengthy. Given the limited issues before this court, however, we do not recite the trial evidence in detail.

[ 5] The trial court denied defendant’s first nonsuit motion two days earlier. At that time, the trial judge announced he would be prepared to find as a matter of law that colliding with a snowboarder or colliding with a tree is an inherent risk of skiing, but the jury would decide whether defendant unreasonably increased the inherent risk of the sport.

[ 6] Defendant also requested a statement of decision addressing the applicability of primary implied and express assumption of the risk doctrines; the trial court denied the request. The trial court’s denial of this request is not at issue in this appeal.

[ 7] Plaintiffs do not challenge the sufficiency of the evidence in this appeal.

[ 8] Knight, supra, 3 Cal.4th 296 was a plurality decision authored by Chief Justice George that all members of the court except Justice Kennard subsequently accepted. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107, citing Shin v. Ahn (2007) 42 Cal.4th 482, 491.)

[ 9] Whether a risk is inherent to a particular active sport presents a question of law for the court. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 23 (Hass).)

[ 10] So it is here. Paragraph 13 of Tuttle’s release also binds her assignees, subrogors, distributors, heirs, next of kin, executors and personal representatives.

A wrongful death action is not a derivative action. Nonetheless, although an individual involved in a dangerous activity cannot by signing a release extinguish his heirs’ wrongful death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk. (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851 852; see Hass, supra, 26 Cal.App.5th at p. 25 [In other words, although a decedent cannot release or waive a subsequent wrongful death claim by the decedent’s heirs, that decedent’s express agreement to waive the defendant’s negligence and assume all risks’ acts as a complete defense to such a wrongful death action].)

[ 11] Civil Code section 1668 lists the types of contractual releases that are unenforceable as a matter of public policy (i.e., those exempting anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent). Gross negligence is not on the list.

[ 12] Plaintiffs do not challenge the modified version of CACI No. 431 in this court, either. The modified instruction read: If you find that Heavenly Valley unreasonably increased the inherent risks of snow skiing, or that Heavenly Valley was grossly negligent, and also find that Heavenly Valley’s conduct was a substantial factor in causing Dana Tuttle’s harm, then Heavenly Valley is responsible for the harm. Heavenly Valley cannot avoid responsibility just because some other person, condition, or event, including but not limited to Dana Tuttle’s own negligence or the acts of Anthony Slater were also a substantial factor in causing Dana Tuttle’s harm.

———


Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

Craig Blanchette, Plaintiff and Respondent,

v.

Competitor Group, Inc., Defendant and Appellant.

D073971

California Court of Appeals, Fourth District, First Division

November 20, 2019

NOT TO BE PUBLISHED

APPEAL from a judgment and postjudgment order of the Superior Court of San Diego County No. 37-2016-00018380- CU-PO-CTL, Richard E. L. Strauss, Judge. Affirmed.

Horvitz & Levy, S. Thomas Todd, Eric S. Boorstin; Daley & Heft, Robert H. Quayle IV, Lee H. Roistacher and Rachel B. Kushner for Defendant and Appellant.

Higgs Fletcher & Mack, John Morris, Rachel E. Moffitt; RDM Legal Group, Russell Myrick and Keith Rodenhuis for Plaintiff and Respondent.

IRION, J.

Plaintiff Craig Blanchette (Plaintiff), then an elite wheelchair racer, competed in the 2014 San Diego Rock ‘n’ Roll Marathon (Marathon), which was owned and operated by defendant Competitor Group, Inc. (Defendant). During the race, Plaintiff was injured as he attempted a 90 degree left-hand turn, could not complete the turn, went through the orange traffic cones that marked the course boundary, and crashed into a car stopped at a traffic light in a lane outside the course.

Following a jury trial on one cause of action for gross negligence, the court entered a judgment in favor of Plaintiff and against Defendant in the amount of $3.2 million. On appeal, Defendant argues, as a matter of law, that it neither acted grossly negligent nor increased the risk inherent in wheelchair racing on city streets. As we explain, Defendant did not meet its burden of establishing, as a matter of law, either that it was not grossly negligent or that Plaintiff assumed the risk of the injuries he received. Thus, we will affirm the judgment and the order denying Defendant’s postjudgment motions.

I. FACTUAL BACKGROUND[ 1]

Due to a birth defect, Plaintiff’s femur bones are about two inches long, and Plaintiff has used a wheelchair since he was in the eighth grade. When Plaintiff was 15 years old, his grandfather bought him his first racing wheelchair. Plaintiff participated in his first professional wheelchair race two years later in 1986, placing fifth in a field of 250. He won his next eight races, setting four world records along the way. At age 20, Plaintiff won a bronze medal in the 1988 Summer Olympics; and over the next approximately 11 years of competition (i.e., prior to the year 2000), he set 21 world records and obtained sponsors.

Plaintiff took a break from wheelchair racing, competing in hand cycling for a few years. He eventually returned to wheelchair racing; and, by June of 2014, he was again “in race shape” as an elite athlete and participated in the Marathon.[ 2] Plaintiff described the “elite level” of wheelchair racing as the professional level, “allow[ing] you to make money competing[.]” Indeed, the Marathon had an elite athlete coordinator who invited Plaintiff, then a resident of Washington state, to come to San Diego to compete at the event. By that time Plaintiff had competed in hundreds of wheelchair races.

Plaintiff arrived in San Diego two days before the Marathon. Because he had not previously competed in a San Diego Rock ‘n’ Roll Marathon, during that time he “did everything” he was aware of to prepare for the race. He reviewed the basic course map; he studied “the virtual tour” video-at least 15 times-which played continuously on a monitor in the lobby of the hotel where the elite racers stayed; he went to the prerace exposition, where competitors signed in and received their racing bibs; and the night before the race, he attended the all-competitor meeting which included a general safety check, the distribution of additional copies of the basic course map, and the further opportunity to view the virtual tour video.

The basic course map that Defendant provided Plaintiff was on one piece of paper and covered the area from Balboa Avenue on the north to National Avenue/Logan Avenue on the south and from west of Interstate 5 on the west to Interstate 15 on the east. The marathon course is shown in a solid red line; the half-marathon course is shown in a solid blue line; and some of the shorter streets on the courses are unidentified. The virtual tour was a video of the entire racecourse, from start to finish, recorded from a car that traveled the streets of the course during normal daytime traffic conditions.[ 3] The entire video played at a speed that covered the entire 26.2-mile course in approximately five minutes-i.e., at a rate in excess of 300 miles per hour-and ran on a continuous loop in multiple locations.

The virtual tour video of the racecourse was especially important to Plaintiff, since wheelchair racers rely on the “racing line” they choose to maximize speed to gain an advantage during competition. According to Plaintiff, a wheelchair racer tries to “have the fastest racing line through” the turns; “you start wide, you taper down narrow,” completing the turn in “the exit lane.” In particular, from the virtual tour video, Plaintiff had studied the intersection where his accident occurred-11th Avenue just south of its intersection with B Street-and the racing line he would take as he turned left from B Street onto 11th Avenue.

According to the individual who was Defendant’s president and chief executive officer at all relevant times, [ 4] Defendant made available a one page document entitled “Turn by Turn Directions” (turn-by-turn directions) that listed each of the Marathon’s more than 40 turns and specified for each whether the entire street (“whole road”) or a portion of the street (e.g., “southbound lanes,” “east side of road,” etc.) was part of the racecourse. (See fn. 7, post.) Defendant presented evidence that these directions were available only on Defendant’s website and at an information booth at the prerace exposition. There is no evidence either that Defendant told Plaintiff about these directions or that Plaintiff knew about these directions; and Plaintiff testified that, before this lawsuit, he had never seen a copy of the turn-by-turn directions.

Defendant also presented evidence that it had provided the elite wheelchair racers with “a 24-hour concierge” who was able to answer questions they had, including information about or a tour of the racecourse. Defendant’s president and chief executive officer confirmed, however, that a competitor would have to contact the concierge and request services and that Defendant did not offer tours directly to the racers. In any event, there is no evidence that Plaintiff was aware of either the concierge or the services Defendant’s witness said the concierge could provide.

Finally, Defendant presented evidence that it provided bicycle-riding “spotters” on the racecourse who were responsible for providing visual cues to alert the elite racers-both those running and those wheeling-of course conditions. Defendant did not present evidence that any of its spotters was at or near the location of Plaintiff’s accident at any time; Defendant’s witnesses did not know the location of any of the spotters at or near the time of Plaintiff’s accident; and Plaintiff did not see any spotters on the racecourse at or near the place of his accident.

At the Marathon, Defendant hosted approximately 25, 000 athletes-five of whom competed in wheelchairs. The wheelchair racers started first, since they travel at much faster speeds than the runners.[ 5]

The accident occurred early in the race, approximately 3.9 miles from the start.[ 6] The Marathon began on 6th Avenue at Palm Street and proceeded north approximately one mile to University Avenue; the course continued east (right turn) on University Avenue for more than one-half mile to Park Boulevard; and then the course went south (right turn) on Park Boulevard for approximately two miles. The following two turns in quick succession, at times referred to “a zigzag” or “an S turn,” led to the accident: At the intersection of Park Boulevard and B Street, the racers made a 90 degree right turn (west) onto B Street; and one block later, they made a 90 degree left turn (south) onto 11th Avenue. At the speed he was traveling, Plaintiff was unable to negotiate the left turn from B Street onto 11th Avenue. Instead of completing the left turn and continuing south on 11th Avenue, at about 45 degrees, Plaintiff went off the course to the west and crashed into a car stopped at a traffic light in the western-most lane of 11th Avenue.

There are three lanes on B Street and four lanes on 11th Avenue. Under normal conditions on 11th Avenue, all four lanes of vehicle traffic travel northbound and merge into a freeway two blocks north of B Street. During the race, the far west lane of 11th Avenue was unavailable for the southbound racers; instead, it was kept open for northbound vehicle traffic from downtown to the freeway.

 Approximately one hour before the race, Defendant closed the Marathon streets downtown and, as relevant to this lawsuit, set up traffic cones, 15 feet apart, which directed the Marathon racers to make the left turn from the three lanes of B Street to the three eastern lanes of 11th Avenue-thereby eliminating the west lane of 11th Avenue to wheelchair racers and making it available for vehicles traveling north to the freeway. At all times, including well in advance of the Marathon, Defendant knew that the west lane of 11th Avenue would be closed to competitors and open to vehicle traffic: Defendant was using the same course it had used in prior years; and Defendant had prepared and provided to many others “an internal working document” that contained sufficient detail to show the traffic cones and elimination of the west lane on 11th Avenue. In this latter regard, Defendant provided its “internal working document” to the course setup teams, the traffic control setup teams, the bands, the aid stations, the medical people, and “those that needed that level of detail”-but not to the elite wheelchair racers.

Not until he was racing-indeed, not until the point in time at which he was at the west end of the one block of B Street, turning left onto 11th Avenue at a speed in excess of 20 miles per hour-did Plaintiff first learn that Defendant had closed the west lane of 11th Avenue to racers and left it open to motor traffic. Nowhere in what Defendant provided-which included the basic course map, the virtual tour video of the course, and the information at the prerace exposition (sign-in) and the all-competitor safety check meeting-was Plaintiff told that, as the racecourse turned left from B Street to 11th Avenue: the west lane of 11th Avenue would be unavailable to racers; a row of orange traffic cones would separate the three east lanes of 11th Avenue (i.e., the course) from the one west lane (i.e., outside the course); or cars would be in the one west lane of 11th Avenue while the racers would be limited to the three east lanes, separated only by traffic cones 15 feet apart from one another.

This was significant to Plaintiff. In planning his speed and racing line for the S curve (right turn from Park Blvd. to B St. followed immediately by the left turn from B St. to 11th Ave.), he had to know his exit lane on 11th Avenue in order to “set up for this corner.” That is because, according to Plaintiff, “the width of the exit is the primary factor that determines the speed of entrance.” To safely set up for the S curve, for example, “you had to know the specifics of what was happening on 11th [Avenue] back on Park [Boulevard]” in order to maneuver the S curve “at the right speed.” More specifically, Plaintiff testified that he “would have needed to know about this racing lane elimination [on the west side of 11th Avenue] prior to entering the corner on [B Street]-off of Park [Boulevard].”[ 7] (Italics added.)

That did not happen. Based on the information Defendant provided Plaintiff-i.e., from studying the basic course map and the virtual tour video, and attending the prerace exposition and the all-competitor meeting-Plaintiff had no reason to suspect that his planned exit lane would be closed to wheelchair racers and open to cars. Given his speed, his “racing line,” and his view of the road, Plaintiff had only two seconds from the time he first learned that the west lane of 11th Avenue was unavailable as an exit lane until he crossed the boundary and crashed into the car in the west lane.

Plaintiff testified that, throughout his 30 years of racing, he had “never seen a lane elimination like that” on the turn from B Street to 11th Avenue at the Marathon. Consistently, another of the elite wheelchair racers who competed at the Marathon testified that, based on the approximately 140 races in which he has participated over 27 years, he would not expect motor vehicle traffic like the wheelchair racers encountered on 11th Avenue. Finally, Plaintiff’s expert testified: changing a racecourse that a wheelchair racer is expecting an hour before the race is not only misleading but “would make the race inherently more dangerous”; “on Sunday morning there can be no changes”; and the organizer of the race is responsible for ensuring the safety of the competitors.

As a result of the crash into the stopped vehicle on 11th Avenue, Plaintiff suffered personal injuries, including broken bones, and the healing process required multiple surgeries. Since the accident at the Marathon, Plaintiff has been unable to compete as an elite athlete in longer wheelchair races.

II. PROCEDURAL BACKGROUND

In June 2016, Plaintiff filed a complaint based on the injuries he suffered during the Marathon when he crashed into the stopped vehicle on 11th Avenue. The operative complaint is a first amended complaint in which Plaintiff alleged three causes of action-negligence, gross negligence, and fraud-against Defendant and two other entities.

As to the two other entities, the trial court granted their summary judgment motion, and there is no issue on appeal as to these defendants or the claims Plaintiff alleged against them. As to Defendant, the trial court granted its motion for summary adjudication as to the claims for negligence, fraud, and punitive damages; and there is no issue on appeal regarding these claims. The case proceeded to a jury trial on Plaintiff’s one claim for gross negligence against Defendant.

Over the course of seven days in January 2018, the trial court presided over a jury trial, and the jury returned a verdict in Plaintiff’s favor, finding in relevant part: Defendant was grossly negligent (vote 9-3); Plaintiff did not assume the risk of the injury he suffered (vote 9-3); Plaintiff suffered damages in the amount of $4 million (vote 12-0); and Plaintiff was 20 percent contributorily negligent (vote 10-2). Accordingly, the court entered judgment for Plaintiff and against Defendant in the amount of $3.2 million.

Defendant filed postjudgment motions, including supporting documentation, for a new trial and for a judgment notwithstanding the verdict. Plaintiff filed oppositions to the motions, and Defendant filed replies to Plaintiff’s oppositions. Following hearing, in March 2018 the trial court denied Defendant’s motions.

Defendant timely appealed from both the judgment and the order denying the postjudgment motions.

III. DISCUSSION

Defendant contends that the judgment should be reversed with directions to enter judgment in Defendant’s favor on either of the following two grounds: (1) As a matter of law, Plaintiff failed to establish gross negligence by Defendant; or (2) as a matter of law, Defendant established that it did not unreasonably increase the risk (i.e., Plaintiff assumed the risk) that Plaintiff would injure himself by turning from B Street to 11th Avenue at too high a speed to complete the turn.

The parties disagree as to the standard of review to be applied. Defendant argues that, because the material facts are undisputed and only one inference can reasonably be drawn, we review both issues de novo. In response, Plaintiff argues that, because material facts were disputed-or, at a minimum, conflicting inferences exist from the undisputed facts-we review both issues for substantial evidence. As we explain, under either standard we must consider the evidence in a light most favorable to Plaintiff; thus, in essence, we will be reviewing both issues for substantial evidence. In doing so, we apply well-established standards.

We “look to the entire record of the appeal,” and if there is substantial evidence, “it is of no consequence that the [jury] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics deleted.)” ‘[T]he test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent.'” (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 770.) “If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) The fact that the record may contain substantial evidence in support of an appellant’s claims is irrelevant to our role, which is limited to determining the sufficiency of the evidence in support of the judgment actually made. (Ibid.)

In determining the sufficiency of the evidence, we “may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the verdict] must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118, italics added; accord, Howard, supra, 72 Cal.App.4th at p. 631 [“we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing”].) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 (Foreman)).

Under these standards, as we will explain, substantial evidence supports the jury’s findings both that Defendant was grossly negligent (i.e., Plaintiff proved Defendant’s extreme departure from the ordinary standard of care) and that Plaintiff did not assume the risk of the injury he suffered (i.e., Defendant failed to prove that it did not unreasonably increase the risks to Plaintiff over and above those inherent in wheelchair racing). Thus, as we will conclude, Defendant did not meet its burden of establishing reversible error. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate… an error that justifies reversal”].)

A. Gross Negligence

The jury answered “Yes” to special verdict question No. 1, “Was [Defendant] grossly negligent?” Defendant contends that, as a matter of law, the undisputed material facts do not support the jury’s finding of gross negligence. We disagree.

1. Law

Ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (Santa Barbara).)” ‘” ‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, ‘” amounts to ordinary negligence.'” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 358 (Willhide-Michiulis).) In contrast, to establish gross negligence, a plaintiff must prove “either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.'” (Santa Barbara, at p. 754; accord, Willhide-Michiulis, at p. 358.)

California does not recognize a cause of action for “gross negligence.” (Santa Barbara, supra, 41 Cal.4th at pp. 779-780.) Rather, as our Supreme Court explained, “the distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776.) For this reason,” ‘”‘ “[g]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” ‘” (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 358.)

2. Analysis

Defendant argues for de novo review on the basis that, according to Defendant, “the material facts are undisputed and only one inference can reasonably be drawn.” Plaintiff disagrees, arguing that many material facts were disputed, conflicting inferences exist, Defendant’s appeal “presents garden-variety challenges to a jury’s factual findings”-and, accordingly, the issues Defendant raises in this appeal are subject to substantial evidence review.

 Persuasively, Plaintiff relies on Cooper v. Kellogg (1935) 2 Cal.2d 504 (Cooper). In Cooper, the plaintiff was a passenger in the defendant’s car, and late at night the plaintiff was injured when the defendant fell asleep, crossed into oncoming traffic, and hit a car traveling in the opposite direction. (Id. at pp. 506-507.) Under the law in effect at the time of the accident, the plaintiff could recover from the defendant driver only if the defendant was grossly negligent. (Id. at pp. 505-506.) Thus, to recover, the plaintiff had to establish “whether defendant [driver] was grossly negligent in permitting himself to fall asleep”-i.e., not merely “whether he was negligent in the manner in which he controlled the car[.]” (Id. at p. 507.)

Following trial, the court found that the defendant had not operated the vehicle in a grossly negligent manner. (Cooper, supra, 2 Cal.2d at p. 507.) The plaintiff in Cooper argued on appeal that the uncontradicted evidence required a finding as a matter of law that the defendant driver was grossly negligent. (Id. at p. 508.) The uncontradicted evidence in Cooper included the defendant’s considerable activities during the 18 hours preceding the accident (from 8:00 a.m. until the accident at 2:00 a.m. the following morning[ 8]), and the defendant’s testimony that, despite the activities, he had no premonition or warning of sleepiness. (Id. at pp. 506-507.) The plaintiff could add nothing to the evidence of the accident, since he had fallen asleep. (Id. at p. 506.)

In response to the plaintiff’s argument that “the uncontradicted evidence requires a finding of gross negligence upon the part of [the defendant driver],” the Supreme Court disagreed, ruling: “Whether there has been such a lack of care as to constitute gross negligence is a question of fact for the determination of the trial court or jury, and this is so ‘even where there is no conflict in the evidence if different conclusions upon the subject can be rationally drawn therefrom.'” (Cooper, supra, 2 Cal.2d at pp. 508, 511, italics added.) Thus, even though the evidence concerning the defendant driver and his activities during the 18 hours preceding the accident was undisputed, the Supreme Court refused to rule as a matter of law, deferring instead to the trier of fact: Despite the undisputed facts, “we cannot say that the only reasonable conclusion the trial court could reach was that there was such a likelihood of his falling asleep, of which he knew or should have been aware, that his continuing to operate the car amounted to gross negligence as defined above.” (Id. at p. 511.)

The analysis and result are the same here. We cannot say that the only reasonable conclusion the jury could reach was that Defendant’s actions were not grossly negligent. Even if some facts are undisputed, viewing the evidence in a light most favorable to Plaintiff-as we must (see fn. 1, ante)-” ‘different conclusions upon the subject can be rationally drawn therefrom.'” (Cooper, supra, 2 Cal.2d at p. 511.) Thus, as in Cooper, we do not apply independent review. (Ibid.) Although Defendant does not present its arguments based on substantial evidence review, by contending that the undisputed material facts require as a matter of law a ruling that Defendant was not grossly negligent, Defendant is arguing that substantial evidence does not support the jury’s finding of gross negligence. As we explain, we are satisfied that substantial evidence supports the jury’s finding that Defendant was grossly negligent-i.e., Defendant’s behavior was an extreme departure from the ordinary standard of conduct.[ 9]

Defendant argues: “As a matter of law, [Defendant] did not fail to use even scant care, or depart in an extreme way from the ordinary standard of conduct, when it posted the turn-by-turn directions on its website and made them available at its information booth, but did not physically hand a copy to [P]laintiff and the other wheelchair racers.” Very simply, this argument fails to consider or apply the appropriate standard of review.[ 10] As we introduced at footnote 1, ante-and as Defendant invites us to do, but fails to do in its analysis-we construe all facts and inferences in a light most favorable to Plaintiff. (Mary M., supra, 54 Cal.3d at p. 214, fn. 6 [on appeal where appellant contends the material facts are undisputed]; Carrington, supra, 30 Cal.App.5th at p. 518 [on appeal from the judgment where appellant contends the record lacks substantial evidence to support the verdict]; Jorge, supra, 3 Cal.App.5th at p. 396 [on appeal from the denial of a motion for judgment notwithstanding the verdict where appellant contends the record lacks substantial evidence to support the verdict].)

According to Defendant, we should credit fully the evidence presented by Defendant-including but not limited to the testimony that the turn-by-turn directions were available to Plaintiff-and discredit the evidence from the wheelchair racers that races like the Marathon do not have either lane elimination (like that on the turn from B Street to 11th Avenue) or vehicle traffic (like that in the west lane of 11th Avenue). However, this is not the appropriate standard when viewing the evidence in a light most favorable to the prevailing party. (See pt. III., before pt. III.A., ante.) To accept Defendant’s argument would result in this appellate court usurping the jury’s responsibility for determining credibility of witnesses and truth of evidence. (City of Hope National Medical Center v. Genetech, Inc. (2008) 43 Cal.4th 375, 394; Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 393 [” ‘”‘ “it is the exclusive province of the [jury] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends” ‘”‘ “; brackets in original].) Even though a material fact may be “undisputed” as argued by Defendant, on the present record this means only that contrary evidence was not presented; it does not mean that Plaintiff agreed to the fact or that the jury-or this court on appeal-must credit the undisputed fact as a matter of law. (See Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 33 [defense summary judgment on claim of gross negligence inappropriate in part due to “credibility questions that need to be answered”].)

We consider, for example, Defendant’s actions in making the west lane of 11th Avenue unavailable for racers; in making the west lane of 11th Avenue available for vehicle traffic; in separating the wheelchair racers’ exit lane and the traffic lane with cones placed 15 feet apart; and in notifying the racers of this situation. Defendant’s president and chief economic officer testified that Defendant prepared turn-by-turn directions that communicated to racers that the west lane of 11th Avenue would not be available for racers and that Defendant made these directions available both on its website and at its information booth at the exposition.[ 11] However, Plaintiff testified that he neither saw nor knew of the turn-by-turn directions;[ 12] and the record does not contain evidence from anyone who actually saw the directions either on Defendant’s website or Defendant’s information booth. Thus, although Defendant tells us that it “is undisputed that the turn-by-turn directions were” on Defendant’s website and at Defendant’s information booth, at best the facts on which Defendant relies were uncontradicted, not undisputed; yet even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman, supra, 3 Cal.3d at p. 890).

In any event, these facts raise inferences and credibility determinations that preclude a ruling-either way-whether Defendant was grossly negligent as a matter of law.

Through the basic course map and the virtual tour video it provided to the Marathon racers, Defendant represented to Plaintiff that all lanes on 11th Avenue would be open to the racers-including specifically the west lane, which Plaintiff reasonably considered and planned to use as the exit lane for his turn from B Street to 11th Avenue. At all times, however, Defendant knew that traffic cones would be used both to direct wheelchair racers to make the left turn from B Street to 11th Avenue and to eliminate the west lane of 11th Avenue to wheelchair racers. Although Defendant prepared an “internal working document” with this specific information and provided it to “those that needed that level of detail,” Defendant did not provide it to the wheelchair racers. One hour before the start of the race and with no notice to Plaintiff-at a time when Plaintiff was already near the starting line and warming up-Defendant placed traffic cones, 15 feet apart from one another, on the outside of the left turn from B Street to 11th Avenue and down the length of 11th Avenue, blocking Plaintiff from using the exit lane he had planned based on the basic course map and virtual tour video Defendant provided.

In this regard, the following evidence from two of the five elite wheelchair racers who competed at the Marathon was uncontradicted: One racer testified that, in his 30 years’ experience in wheelchair racing, he had “never seen a lane elimination” like that on the left turn from B Street to 11th Avenue; and another racer testified that, based on his 27 years’ experience in over 140 wheelchair races, he would never expect motor vehicle traffic to be in the lane next to the wheelchair racers separated only by traffic cones placed 15 feet apart. Moreover, according to Plaintiff’s expert, Defendant was responsible for ensuring the safety of all racers, and on the morning of the race “there can be no changes” made to racecourse, because to do so “would make the race inherently more dangerous” for the wheelchair competitors. Given his speed, his racing line, and his view of the racecourse as he proceeded down the one block of B Street, Plaintiff had only two seconds to attempt to change his course from when he first learned that Defendant had closed the west lane of 11th Avenue and when he crashed into the car in the west lane of 11th Avenue. Had Plaintiff known of the lane elimination on 11th Avenue, he would have been able to negotiate the turn from B Street by “com[ing] into the corner differently.”

Like Cooper, even where (as here) there is no conflict in the evidence, because various conclusions can be drawn from the evidence based on inferences and credibility, we cannot say that the only reasonable finding the jury could reach was that Defendant’s actions were not an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to Plaintiff. Stated differently, the evidence and inferences from the evidence described in the preceding paragraphs substantiate the jury’s finding that Defendant was grossly negligent.

 Defendant’s legal authorities do not support a different analysis or result. Defendant first cites seven cases-each followed by a one sentence (or less) parenthetical describing facts or quoting language-in which intermediate appellate courts ruled that a plaintiff could not establish a lack of gross negligence as matter of law. Defendant continues by citing five cases-each followed by a one sentence (or less) parenthetical describing facts or quoting language-in which intermediate appellate courts ruled that a defendant failed to establish a lack of gross negligence as a matter of law. Defendant then concludes by stating without discussion or argument: “Contrasting the facts of the cases that find no gross negligence as a matter of law with the facts of the cases that find possible gross negligence, it is apparent that our case falls in the former category.” Defendant does not suggest the reason, and we decline to speculate as to what “is apparent” to Defendant. In short, Defendant’s one-sentence argument is neither helpful nor persuasive.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff failed to prove gross negligence.

B. Assumption of the Risk

The jury answered “Yes” to special verdict question No. 3, “Did [Defendant] do something or fail to do something that unreasonably increased the risks to [Plaintiff] over and above those inherent in marathon wheelchair racing?” Defendant contends that, as a matter of law, the undisputed material facts do not support the jury’s finding that Defendant unreasonably increased the risks inherent in marathon wheelchair racing. Stated differently, Defendant contends that, as a matter of law, Plaintiff assumed the risk of the injuries he sustained by competing as an elite wheelchair racer at the Marathon. We disagree.

1. Law

Assumption of the risk is an affirmative defense to a plaintiff’s claim of negligence. (6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 1437(2), p. 758.) Primary assumption of risk, when applicable, “completely bars the plaintiff’s recovery,” whereas secondary assumption of risk” ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.'” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068 (Cheong); see Knight v. Jewett (1992) 3 Cal.4th 296, 314-315 (Knight ).) The presence or absence of duty determines whether an application of the defense will result in a complete bar (primary assumption of the risk) or merely a determination of comparative fault (secondary assumption of the risk). (6 Witkin, supra, § 1437(2) at p. 758.)

” ‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.'” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).) Primary assumption of risk is a doctrine of limited duty which was “developed to avoid such a chilling effect.” (Ibid.) If it applies to a recreational activity like the Marathon, an event sponsor like Defendant owes the “participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Ibid. [primary assumption of the risk applied as a complete defense to bumper car passenger’s action against amusement park owner for injuries sustained when bumper cars collided].)

In Knight, supra, 3 Cal.4th 296, our Supreme Court considered the proper application of the assumption of risk doctrine in terms of duty, given the court’s adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.[ 13] The court “distinguished between (1) primary assumption of risk-‘those instances in which the assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk’-and (2) secondary assumption of risk-‘those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.'” (Cheong, supra, 16 Cal.4th at pp. 1068-1069, quoting Knight, at p. 308.)

The test for whether primary assumption of risk applies is whether the activity” ‘involv[es] an inherent risk of injury to voluntary participants… where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, supra, 55 Cal.4th at p. 1156.) “The test is objective; it ‘depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity’ rather than ‘the particular plaintiff’s subjective knowledge and awareness[.]'” (Cheong, supra, 16 Cal.4th at p. 1068, quoting Knight, supra, 3 Cal.4th at p. 313.)

In determining whether the doctrine of assumption of the risk will be a defense to a claim of negligence in a sporting activity, the trial court must consider three issues:”‘ “whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.” ‘” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1061 (Fazio); see Knight, supra, 3 Cal.4th at p. 317 [in analyzing the duty of an owner/operator of a sporting event, courts should consider “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport” (italics added)].) The first two issues, which relate to duty, are determined by the court, and the third-viz., increased risk-is a question to be decided by the trier of fact.[ 14] (Fazio, at pp. 1061-1063.)

2. Analysis

In its opening brief, Defendant explained that, at trial, in response to Defendant’s prima facie showing in support of its affirmative defense of primary assumption of the risk, “[P]laintiff had to prove that [Defendant] unreasonably increased the risk to him over and above the risks inherent in wheelchair racing on city streets.”[ 15] In this context, Defendant characterized the risk at issue as follows:

“The pertinent inherent risk was that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

In this context, Defendant described the issue on appeal to be:

 “[W]hether [Defendant], by not physically handing [P]laintiff a copy of the turn-by-turn directions, in addition to making them available on its website and at its information booth, unreasonably increased the inherent risk that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

Defendant accordingly limited its substantive argument on appeal to establishing, as a matter of law, that it did nothing to increase the risk that “[P]laintiff would attempt to turn a corner too fast, run his wheelchair off the race course, and crash” and that it was not required to undertake any affirmative efforts to decrease that risk.

In its brief, Plaintiff criticized Defendant for “tak[ing] too narrow a view of its duty here (framing this issue as simply as whether it ‘unreasonably increased the inherent risk’ that [Plaintiff] would ‘roll over or run off the race course and crash’).” Plaintiff disagreed with Defendant’s “formulation,” corrected Defendant’s statement of the inherent risk at issue, and explained his position as follows:

“The ‘precise issue,’ instead, is whether… [Defendant] increased the risks inherent in wheelchair racing in multiple ways, including: (1) by failing to indicate on the basic course map provided to all competitors that the outside lane of 11th Avenue (the necessary ‘exit lane’ for a fast-moving wheelchair) would not be available on race day (or by failing to at least direct competitors to its much-heralded turn-by-turn directions for information regarding lane closures); (2) by affirmatively representing to racers through its ‘virtual tour’ that all lanes on 11th Avenue would be available to complete that turn; (3) by removing 13 feet… of the roadway from the critical ‘exit lane’ about an hour before the race began without ever alerting at least the… wheelchair racers to this change; and (4) by [f]ailing to take other necessary precautions (for instance, with announcements, required tours, better barricades, bigger signs, or sufficient spotters) to advise racers of that particularly precarious intersection.”

In its argument, consistent with its position on gross negligence, Plaintiff emphasized that Defendant affirmatively increased the inherent risks of marathon wheelchair racing by changing the racecourse from that shown on the basic course map and the virtual tour video. According to Plaintiff, an hour before the race began with the wheelchair competitors already at the starting line, Defendant increased the risks by: eliminating the west lane of 11th Avenue, whereas the basic course map and virtual tour video did not indicate the loss of a lane; and allowing vehicle traffic in the west lane of 11th Avenue, where wheelchair racers would ordinarily complete their left turns from B Street, separating the racecourse from vehicle traffic by plastic traffic cones placed 15 feet apart. In support of his argument, Plaintiff relied on the following testimony: In his 30 years of wheelchair racing, Plaintiff had “never seen a lane elimination like that” on the turn from B Street to 11th Avenue; and based on his 27 years of wheelchair racing, another Marathon wheelchair competitor would never have expected the motor vehicle traffic that the wheelchair racers encountered on 11th Avenue-i.e., motor vehicles traveling in the lane next to the wheelchair racers’ exit lane, where competitors were racing at speeds exceeding 20 miles per her, separated only by traffic cones placed 15 feet apart.

In its reply brief, Defendant acknowledged that Plaintiff considered Defendant’s increase to the inherent risks in wheelchair racing to be the elimination of the west lane of 11th Avenue without notice, but continued with its position from its opening brief, restating it in part as follows:

 “Stated in terms of legal requirements, [Defendant] had no duty to eliminate or minimize the inherent risks of wheelchair road racing, one of which is that [P]laintiff would attempt to go too fast around a corner, run off the race course and crash. [¶] In the opening brief, we said the precise issue on appeal is whether [Defendant] unreasonably increased the inherent risk of injury by making the turn-by-turn directions available on its website and at its manned information booth, but not physically handing [P]laintiff a copy of the directions.”

Defendant again argued that it did not increase the inherent risks associated with wheelchair racing by eliminating the west lane and allowing vehicle traffic on 11th Avenue, because Defendant prepared turn-by-turn directions that a defense witness said were available on Defendant’s website and at Defendant’s information booth at the exposition.

The parties again disagree as to the standard of review. Defendant contends that, because the facts are undisputed, we are to review the judgment de novo; whereas Plaintiff contends that, because many facts-and inferences from the facts-are disputed, we are to review the judgment for substantial evidence. As before, Plaintiff has the better position.

As we explained in reviewing whether Defendant was grossly negligent (see pt. III.A.2, ante), even if some facts are undisputed, viewing the evidence in a light most favorable to Plaintiff-as we must (see fn. 1, ante)-” ‘different conclusions upon the subject can be rationally drawn therefrom’ “; and if different conclusions can be drawn, then the issue to be determined is a question of fact” ‘even where there is no conflict in the evidence.'” (Cooper, supra, 2 Cal.2d at p. 511 [uncontradicted evidence of arguably gross negligence does not require a finding of gross negligence as a matter of law].) Since the same “undisputed” evidence is at issue in reviewing whether Defendant increased the risks of injury to the wheelchair racers at the Marathon, we apply the same standard of review-i.e., substantial evidence.

The determination of whether Defendant increased the risks for wheelchair racers beyond those inherent in the sport of marathon wheelchair racing is an issue of fact.[ 16] (Fazio, supra, 233 Cal.App.4th at p. 1061; see pt. III.B.1., ante.) As we discuss, the same substantial evidence that supported the jury’s finding of gross negligence (see pt. III.A.2., ante) also supports the jury’s finding that Defendant affirmatively increased the risks associated with marathon wheelchair racing.[ 17]

Through the basic course map and the virtual tour video it provided to Plaintiff, Defendant represented that all lanes on 11th Avenue would be open to the racers-including specifically the west lane, which Plaintiff reasonably considered and planned to use as the exit lane for his left turn from B Street to 11th Avenue. One hour before the start of the race and with no notice to Plaintiff-at a time when Plaintiff was already near the starting line and warming up-Defendant placed traffic cones, 15 feet apart from one another, on the outside of the left turn from B Street to 11th Avenue and down the length of 11th Avenue, blocking Plaintiff from using the exit lane he had planned. This action increased the risks otherwise inherent in wheelchair racing, because: Neither lane elimination on the racecourse nor vehicle traffic separated by traffic cones next to the wheelchair racers’ exit lane on the racecourse is a risk inherent in marathon wheelchair racing; yet Defendant’s actions both eliminated a lane on 11th Avenue and allowed for a lane of vehicle traffic on 11th Avenue next to the exit lane for the left turn from B Street, separated only by traffic cones 15 feet apart.

Thus, the record contains substantial evidence to support the finding that Defendant increased the risks inherent in marathon wheelchair racing. In short, the record contains evidence that Defendant changed the racecourse from what Defendant showed Plaintiff on the basic course map and virtual tour video-merely one hour before the start of the race-without disclosing the change to Plaintiff or the other wheelchair racers.

Consistent with its argument as to gross negligence, Defendant contends that, with regard to assumption of the risk, although “it is the racers’ responsibility to become sufficiently familiar with the race course to successfully negotiate its features,” Plaintiff failed to “go on [Defendant’s] website, visit [Defendant’s] information booth, or consult [Defendant’s] knowledgeable personnel” where Plaintiff could have received a copy of the turn-by-turn directions. Consistent with our ruling on gross negligence (see pt. III.A.2., ante), Defendant does not cite to evidence that Plaintiff knew of such resources, let alone that those resources had turn-by-turn directions or other information which disclosed the changes to the racecourse from the information Defendant affirmatively provided him in the basic course map and virtual tour video.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff assumed the risk of the injuries he sustained by competing as a wheelchair racer at the Marathon.

IV. DISPOSITION

The judgment and the order denying Defendant’s postjudgment motions are affirmed. Plaintiff is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

  WE CONCUR: HALLER, Acting P. J., O’ROURKE, J.

———

Notes:

[ 1] Defendant argues for de novo review of the two issues (gross negligence and assumption of the risk) based on its contention that “the material facts are undisputed and only one inference can reasonably be drawn.” Defendant’s principal authority for this standard is Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (Mary M.), which instructs that, when applying this standard, the facts must be considered “in the light most favorable” to the prevailing party. (Id. at p. 214, fn. 6.) Indeed, citing this same footnote in Mary M., Defendant acknowledges that, under this standard, even “[d]isputed material facts can become undisputed by construing them in the manner most favorable to the opposing party.” Construction of the evidence in a light most favorable to the prevailing party is consistent with established standards of review following a jury verdict and the denial of a motion for judgment notwithstanding the verdict. (Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 518 (Carrington) [appeal from judgment where appellant contends the record lacks substantial evidence to support the verdict]; Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396 (Jorge) [appeal from order denying motion for judgment notwithstanding the verdict].)

[ 2] The Marathon was 26.2 miles. It began just north of downtown San Diego (on 6th Ave. near Palm St., west of Balboa Park) and finished in the south end of downtown San Diego (on 13th St. near K St., east of Petco Park).

[ 3] A copy of the virtual tour video was not available for trial. As described by Plaintiff, on one-way streets where the racers would be traveling against the flow of the traffic during the recording session, the camera was placed in the rear of the car, and when the video was prepared, the portions recorded from the rear of the car were spliced into the video in reverse.

[ 4] We describe this evidence-and the evidence in the subsequent two paragraphs of the text-since Defendant emphasizes it in Defendant’s appellate briefing. However, this is not evidence we consider when analyzing the evidence and inferences in a light most favorable to Plaintiff, as previewed at footnote 1, ante, and discussed at parts III.A.2. and III.B.2., post.

[ 5] The Marathon course diagram, which is an internal document that the course operations team prepares, indicates that the wheelchair racers were scheduled to start 5 minutes before the first group of runners.

[ 6] The reporter’s transcript contains testimony from Defendant’s president and chief executive officer that the accident happened “at a little less than a fourth of a mile” from the start line. Based on the course map and the testimony of two racers, apparently either the witness misspoke or the reporter’s transcript contains an error.

[ 7] Plaintiff testified that, had he been given advance notice that the west lane of 11th Avenue had been eliminated from the course he had seen on the virtual tour video, he would have planned for a different racing line and successfully completed the turn from B Street to 11th Avenue. The turn-by-turn directions-the existence of which was never made known to Plaintiff-described the S curve from Park Boulevard to 11th Avenue as follows: “1.6 [miles] Right (south) turn on Park Blvd[.], southbound lanes only “3.8 [miles] Right (west) turn on B St[.], whole road “3.9 [miles] Left (south, against traffic) turn on 11th Ave[.], east side of road[.]” Notably, these directions do not disclose either that the west lane of 11th Avenue would be unavailable to racers or that vehicle traffic would be traveling northbound in the west lane of 11th Avenue.

[ 8] The plaintiff and defendant left Santa Rosa around 8:00 a.m.; more than two hours later they had lunch in San Francisco; they drove to San Mateo and attended a football game; after the game, they drove to San Francisco, where they had dinner and attended the theater; they took the ferry to Sausalito around midnight; and the accident occurred as the defendant drove from Sausalito back to Santa Rosa. (Cooper, supra, 2 Cal.2d at p. 506.)

[ 9] Consistent with CACI No. 425, the court instructed the jury: “Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. [¶] A person can be grossly negligent by acting or by failing to act.”

[ 10] Defendant’s argument also implies that Plaintiff should have requested or taken advantage of the turn-by-turn directions. However, since there is no evidence suggesting that Plaintiff knew such information was available, we question how Plaintiff could have requested or taken advantage of it.

[ 11] Defendant does not contend that its turn-by-turn directions or any other evidence told Plaintiff that the west lane of 11th Avenue would be open to vehicle traffic or separated from the racecourse only by traffic cones 15 feet apart.

[ 12] In its reply, Defendant argues that Plaintiff was unaware of turn-by-turn directions because “Plaintiff chose not go on the website, visit the information booth, or consult the knowledgeable personnel.” (Italics added.) Defendant cites no evidence-and in our review of the record, we are unaware of evidence-that Plaintiff chose not to take advantage of those services. While that is one inference that can be drawn from Plaintiff’s testimony, that is not the only inference. Other reasonable inferences include that Plaintiff failed to take advantage of those services either: because he did not know they were available; or, since Plaintiff had never seen a lane eliminated like on 11th Avenue and elite wheelchair racers do not expect motor vehicle traffic to be separated from the competitors by traffic cones, he would not think to ask about such services. As Defendant acknowledges, because multiple inferences can be drawn from Plaintiff’s failure to take advantage of those services, such failure is not an “undisputed fact” for purposes of our appellate review. (Mary M., supra, 54 Cal.3d at p. 213.)

[ 13] Knight was a plurality opinion, but a unanimous court later “restated the basic principles of Knight‘s lead opinion as the controlling law.” (Cheong, supra, 16 Cal.4th at p. 1067, citing Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537-538.)

[ 14] We recognize-as we did in Fazio, supra, 233 Cal.App.4th at page 1061-that Court of Appeal decisions conflict as to whether the issue of increased risk is a legal question for the court or a factual question for the jury. (Id. at pp. 1061-1063.) We have no reason to reconsider our ruling and analysis in Fazio, and Defendant does not suggest otherwise. (See fn. 16, post.)

[ 15] In this regard, the trial court instructed the jury as follows, consistent with CACI No. 472, entitled “Primary Assumption of Risk-Exception to Nonliability-… Event Sponsors”: “[Plaintiff] claims he was harmed while participating in a wheelchair race as part of [Defendant’s] Rock and Roll Marathon. To establish this claim, [Plaintiff] must prove all of the following: [¶] 1. That [Defendant] was the operator of the Rock and Roll Marathon; [¶] 2. That [Defendant] unreasonably increased the risks to [Plaintiff] over and above those inherent in the sport of wheelchair marathon racing[; ¶] 3. That [Plaintiff] was harmed; and [¶] 4. That [Defendant’s] conduct was a substantial factor in causing [Plaintiff’s] harm.” (Italics added.)

[ 16] As we introduced ante, the other two issues associated with the potential application of the doctrine of assumption of the risk-whether marathon wheelchair racing is “an active sport” and “the risks inherent in that sport”-are legal issues that are reviewed de novo. (Fazio, supra, 233 Cal.App.4th at p. 1061.) Although Defendant does not directly raise either of those issues in its appeal, we have no difficulty concluding that: Marathon wheelchair is an active sport; and turning a corner at too high a speed and running off the racecourse is a risk inherent in marathon wheelchair racing. In its reply brief, Defendant suggests that we apply a de novo standard of review because “this appeal involves a mixed question of law and fact.” We disagree that this appeal involves a mixed question. Each of the three issues under Fazio is decided and reviewed separately: two are issues of law, and one-i.e., whether the defendant increased the risks inherent in the sport-is an issue of fact. (Fazio, supra, 233 Cal.App.4th at pp. 1061-1063.) This appeal involves only the last issue, and as an issue of fact, it is reviewed on appeal for substantial evidence.

[ 17] In its reply brief, for the first time, Defendant “note[d]” that, in Fazio, supra, 233 Cal.App.4th 1053, “this court held that, in the summary judgment context, if there are disputed material facts, the jury will decide whether the defendant increased the inherent risk.” We agree that, if there are disputed material facts, then the jury must decide the factual dispute; and that is what happened in this case. Defendant then argues “that, after trial, if the case goes up on appeal, the appellate court is bound by the jury’s resolution of the factual disputes, but not by the jury’s determination that the defendant increased the inherent risk,” suggesting instead that “[t]he appellate court, based on the now-established facts, decides de novo whether the defendant increased the inherent risk.” Not only does Defendant fail to provide authority for its suggestion, in the context of the present appeal, the suggestion makes no sense. Here, the jury resolved the ultimate factual dispute-i.e., whether the defendant increased the inherent risk: “[Defendant] d[id] something or fail[ed] to do something that unreasonably increased the risks to [Plaintiff] over and above those inherent in marathon wheelchair racing.” As we ruled in Fazio: “[R]esolving the question of whether [the defendant] increased the risk of [the harm the plaintiff suffered] is properly decided by the trier of fact. This question… ‘requires application of the governing standard of care (the duty not to increase the [inherent risks]) to the facts of this particular case-the traditional role of the trier of fact.'” (Fazio, supra, 233 Cal.App.4th at pp. 1062-1063; italics and second and third brackets added.) For these reasons, we disagree with Defendant’s reply argument in support of de novo review.


Plaintiff loses snow tubing case in PA because their experts could not argue the actions of the defendant were gross negligence.

Association resource guide is used against the defendants to prove the plaintiff’s case.

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Ray M. Bourgeois and Mary Ann I. Bourgeois

Defendant: Snow Time, Inc. and Ski Roundtop Operating Corporation

Plaintiff Claims: negligence, gross negligence, recklessness, and loss of consortium

Defendant Defenses: failure to state a claim and release

Holding: For the defendant

Year: 2018

Summary

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Facts

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

The defendants filed a motion for summary judgment, which was granted and the plaintiff’s appealed.

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

The first issue the appellate court reviewed was the dismissal of the plaintiff’s claims for gross negligence. The appellate court held that “we find that Appellants did not establish a prima facie claim for recklessness or gross negligence

The court came to that conclusion because no one could state the standard of care needed to prove the actions of the defendant rose to the level of gross negligence.

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

The court first looked at the definition of recklessness and gross negligence.

The Pennsylvania Supreme Court, citing the Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would 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.

The key point is the failure must be an intentional failure. The plaintiff must establish that the defendant consciously acted or failed to act. “Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.

To prove gross negligence Pennsylvania laws requires a deviation from the standard of care.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary standard of care.”

Normally the trier of fact, the jury must make this decision. However, Pennsylvania courts are allowed to decide this issue if the facts are “entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence.”

Normally, to prove the defendant’s duty, expert testimony is required to establish the standard of care that the defendant failed to meet and how the expert deviated from that standard of care.

The plaintiff hired to experts that provided opinions as to the actions of the defendant. The first expert opined that the actions of the defendant were beyond the standard of care, but never provided an opinion about what the standard of care was.

DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

The second expert did not set forth any standards of care.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

The simple negligence claims were barred by a release. The plaintiff argued on appeal that the release was void because it did not specifically name in the release one of the defendants. However, the court found that the language in the release, “and their owners” was sufficient to cover the defendant when not specifically named in the release.

There was a dissent in this case. The dissent argued the plaintiff should win because the warning on the mats used to decelerate the tubes stated that vinyl tubes were not to be decelerated by mats or other devices. The dissent also argued the opinions of the experts did provide enough information for a decision about the recklessness and gross negligence of the defendants.

In my view, Appellants have put forth enough evidence at this stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

So Now What?

The plaintiff was rendered a quadriplegic by the accident so a lot of money was at stake. The plaintiff did not hire experts correctly or did not explain what was needed from the experts. This first rule of pleading is proving your case legally on the paperwork and then prove it in the record. The plaintiff failed to do that.

The biggest hurdle was the association resource guide. The National Ski Area Association created a resource guide for tubing hills. The dissenting judge called it the standard of care. The resource guide did not contain any information on using devices to slow tubes. The resource guide said you should have a sufficient run out.

The court did not see the issue as using a mat to slow participants as a violation of the standard to use a run out.

That was the close one in this case.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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




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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

Bourgeois v. Snow Time, Inc.

 

 

Superior Court of Pennsylvania

August 14, 2018, Decided; August 14, 2018, Filed

No. 1086 MDA 2017

Reporter

2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

RAY M. BOURGEOIS AND MARY ANN I. BOURGEOIS, Appellants v. SNOW TIME, INC. AND SKI ROUNDTOP OPERATING CORPORATION

Notice: DECISION WITHOUT PUBLISHED OPINION

Prior History:  [*1] Appeal from the Order Entered June 19, 2017. In the Court of Common Pleas of York County Civil Division at No(s): 2015-SU-001900-71.

Judges: BEFORE: OTT, J., DUBOW, J., and STRASSBURGER,* J. Judge Ott joins the memorandum. Judge Strassburger files a dissenting memorandum.

Opinion by: DUBOWS

Opinion

MEMORANDUM BY DUBOW, J.:

Appellants, Ray M. Bourgeois and Mary Ann I. Bourgeois, appeal from the Order entered in the York County Court of Common Pleas granting the Motion for Summary Judgment filed by Appellees, Snow Time, Inc. and Ski Roundtop Operating Corporation.1 Appellants challenge the trial court’s finding that Appellants could not establish that Appellees acted recklessly or with gross negligence. After careful review, we agree with the trial court that Appellants failed to provide an expert report that articulated a relevant standard of care. As a result, Appellants failed to establish that Appellees had a duty to Appellants and, thus, acted recklessly or were grossly negligent in placing deceleration mats at the end of the tubing run. We affirm the Order of the trial court.

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen [*2]  mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Appellants filed a Complaint against Appellees on July 24, 2015, asserting claims for negligence, gross negligence, recklessness, and loss of consortium.

On February 14, 2017, Appellees filed a Motion for Summary Judgment, which the trial court granted on June 19, 2017.

This timely appeal followed. Appellants filed a court-ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial court filed a Pa.R.A.P. 1925(a) Opinion, incorporating its Opinion in Support of the Order granting the Motion for Summary Judgment.

Appellants raise the following issues for our review:

1. Did the trial court err in granting [Appellees’] Motion for Summary Judgment when it disregarded [Appellants’] liability expert reports, which support the conclusion that, based on the evidence of record, that in placing large rubber kitchen mats, folded in half, on the snow and in the path of its patrons who were traveling at high speeds, [Appellees] acted recklessly and/or with gross negligence? [*3] 

2. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, by holding that, as a matter of law, [Appellees] were not reckless and/or grossly negligent, in that the trial court disregarded genuine issues of material fact showing recklessness and/or gross negligence, including but not limited to the following:

(a) the manufacturer of the inner tube [Appellees] provided Mr. Bourgeois specifically warned [Appellees] not to place obstacles, such as large folded rubber kitchen mats, in the path of tubing participants;

(b) [Appellees] deliberately placed obstacles-large, heavy, folded kitchen mats that [Appellees] knew were not designed for snow tubing and which would cause tubing participants to come to an abrupt stop during high-speed conditions-directly in Mr. Bourgeois’s path;

(c) [Appellees] knew that folding the large mats made them obstacles as the mats were fixed heavy masses that protruded high off the surface of the snow;

(d) [Appellees] had actual and/or constructive knowledge of similar incidents involving the folded kitchen mats prior to Mr. Bourgeois’s catastrophic accident;

(e) [Appellees] acknowledged in their written warnings that their tubing runs-including [*4]  their use of large rubber mats to stop speeding tubing patrons-posed a risk of grievous injury or death to its patrons; and

(f) the risk of grave harm posed by the folded rubber kitchen mats to [Appellees’] snow tubing patrons was obvious and readily apparent to a reasonable person?

3. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, in that the trial court relied upon the testimony of [Appellees’] own employees-in contravention of the Nanty-Glo[]2 holding-to conclude as a matter of law that [Appellees] did not know or have reason to know that using folded kitchen mats to bring its fast-moving snow-tubing patrons to an abrupt stop did not pose a risk of serious bodily harm or death to its patrons?

4. Did the trial court err in granting [Appellees’] Motion for Summary Judgment as to [Appellee] Snow Time, Inc., when (a) the Release signed by Mr. Bourgeois did not name Snow Time as a signatory, and (b) there were genuine issues of fact that [Appellee] Snow Time directly participated and acted negligently with regard to Mr. Bourgeois?

Appellants’ Brief at 6-7.

Issues 1 and 2 – Summary Judgment

In their first two issues, Appellants argue that the trial court erred [*5]  in granting Appellees’ Motion for Summary Judgment by disregarding the conclusions of their experts that Appellees’ conduct was reckless and grossly negligent. Appellants’ Brief at 35, 42. In support, Appellants emphasize certain evidence and argue that the record contains genuine issues of material fact that make the grant of summary judgment inappropriate. Based on the following discussion, however, we find that Appellants did not establish a prima facie claim for recklessness or gross negligence and thus, the trial court did not err in granting summary judgment on these issues.

Our standard of review of the grant of a Motion for Summary Judgment is as follows. We “may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion.” Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (Pa. 2010). However, when there are no genuine issues as to any material fact and the only issue on appeal is a question of law, our standard of review is de novo.” Id.

In order to survive a motion for summary judgment, the non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 737 (Pa. 1998) (citation omitted). If the non-moving [*6]  party fails to establish one of the essential elements of her claim, the movant has valid grounds for summary judgment. Babb v. Ctr. Cmty. Hosp., 2012 PA Super 125, 47 A.3d 1214, 1223 (Pa. Super. 2012) (citation omitted).

It is well-established that when a trial court considers a motion for summary judgment that includes an expert report, the trial court must determine, inter alia, whether the expert sufficiently supports his conclusions in his expert report:

At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party. This clearly includes all expert testimony and reports submitted by the non moving party or provided during discovery; and, so long as the conclusions contained within those reports are sufficiently supported, the trial judge cannot sua sponte assail them in an order and opinion granting summary judgment. Contrarily, the trial judge must defer to those conclusions, and should those conclusions be disputed, resolution of that dispute must be left to the trier of fact.

Summers, supra at 1161 (citations omitted).

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial [*7]  court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the mats at the bottom of hills for snow tubers. . . . The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Appellant] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Ct. Op., 7/19/17, at 18-19. The trial court similarly found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. Appellants challenge these conclusions.

We first turn to the definitions of recklessness and gross negligence. The Pennsylvania Supreme Court, citing the [*8]  Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would 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.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012), citing
Restatement (Second) of Torts § 500 (emphasis added). Therefore, an element of recklessness is the failure of the defendant to do any act that he has a duty to do for the plaintiff.

That failure, however, must be an intentional failure. In other words, a plaintiff must establish that a defendant consciously acted or failed to act. Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.” Id.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary [*9]  standard of care.” Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671, 679 (Pa. Super. 1991).

Generally, it is for the jury to determine whether a party acted grossly negligent. Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616, 621 (Pa. Super. 1984). However, a court may decide this question as a matter of law where the case is entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence. Id.

Expert testimony is often required to opine about a defendant’s duty to the plaintiff, i.e., the standard of care that defendant failed to meet. In particular, an expert must opine about the relevant standard of care, the manner in which defendant’s actions deviated from the standard, and the manner in which that deviation caused the plaintiff’s harm. See Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (Pa. 2003) (medical expert report must describe standard of care so as to establish duty, breach of duty, and causation). See also Zokaites Contracting Inc. v. Trant Corp., 2009 PA Super 35, 968 A.2d 1282, 1287 (Pa. Super. 2009) (in a professional negligence action, expert testimony is required to establish the “relevant standard of care applicable to the rendition of the professional services” and that the defendant’s conduct fell below that standard); Truax v. Roulhac, 2015 PA Super 217, 126 A.3d 991, 997-99 (Pa. Super. 2015) (discussing plaintiff’s use of an engineer’s expert testimony to establish the elements of negligence in a premises liability action).3 If the expert fails to provide the required information, a trial [*10]  court may conclude that the report is insufficient as a matter of law. Id.

We now turn to the theory of Appellants’ case. Appellants allege in their Complaint, inter alia, that Appellees’ use of folded deceleration mats at the base of its tubing run was reckless and grossly negligent because the use of the mats caused Appellant’s snow tube to stop suddenly and unexpectedly, resulting in the serious injuries that Appellant sustained. Appellants assert the same theory on appeal by arguing that Appellees engaged in reckless and grossly negligent conduct when they placed “large, heavy rubber mats in [Appellant’s] path … and that the mats could bring [Appellant] to an abrupt, immediate stop.”4
See Appellants’ Brief at 36.

In support of Appellants’ response to Appellees’ Motion for Summary Judgment, Appellants presented two expert reports that concluded that Appellees engaged in reckless and grossly negligent conduct. Neither expert, however, set forth a relevant standard of care and, thus, the duty that Appellees failed to meet.

Appellants’ first expert, Mark DiNola, is an expert in the field of ski and snow tubing risk management. When addressing Appellees’ standard of care, he did so generally [*11]  and failed to articulate a specific standard of care or industry standard for the use of deceleration mats in a tubing run-out area. In particular, DiNola first concluded generally that Appellees’ “decision to use deliberately deployed folded anti-fatigue rubber mats as a deceleration device constitutes an extreme departure from the ordinary standards of conduct for a tubing park operator.” DiNola Report, 3/15/17, at 40 (emphasis added). DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

In another portion of the report, however, DiNola discusses a standard of care set forth in National Ski Areas Association’s “Tubing and Operations Resource Guide.”5 That “standard of care,” however, addresses the length of a tubing run-out, not a standard of care for the use of mats as deceleration devices. Thus, this portion of the expert report does not sufficiently articulate the applicable standard of care or conduct to support Appellants’ theory of this case.

The second expert report, written by Gordon Moskowitz, [*12]  Ph.D., a mechanical and biomechanical engineering expert, does not set forth any standards of care for tubing operators. Thus, this report is not relevant to the determination of whether Appellees engaged in reckless or grossly negligent conduct in failing to meet a standard of care by using folded rubber mats in the deceleration area.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

Issue 3 – Nanty-Glo Rule

In their third issue, Appellants claim that the trial court erred in concluding, solely based on Appellees’ employees’ testimony, that Appellees were not aware of the risk of harm posed by their use of anti-fatigue mats in the deceleration areas of the tubing run. Appellants’ Brief at 55.

The Nanty-Glo Rule limits the trial [*13]  court’s use of affidavits or depositions to decide motions for summary judgment. The Rule provides that a trial court, when ruling on a motion for summary judgment, may not rely solely upon the moving party’s own testimonial affidavits or depositions, or those of its witnesses, to determine that no genuine issue of material fact exists. Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916, 918 (Pa. Super. 1992) (citation and footnote omitted).

Before applying the Nanty-Glo Rule, however, the trial court must first determine whether the plaintiff has alleged sufficient facts to establish a prima facie case:

Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the fact-finder by resolving any material issues of fact. It is only when the third stage is reached that Nanty-Glo comes into play.

DeArmitt v. New York Life Ins. Co., 2013 PA Super 161, 73 A.3d 578, 594-95 (Pa. Super. 2013) (citation omitted and emphasis added).

As discussed above, the trial court properly found as a matter of law that Appellants’ experts had not opined about a relevant standard of care [*14]  and, thus, Appellants could not establish facts sufficient to make out a prima facie case of recklessness or gross negligence. Accordingly, Appellants have not demonstrated the applicability of the Nanty-Glo Rule. This third issue, thus, warrants no relief.

Issue 4 – The Release of Snow Time, Inc.

Lastly, Appellants contend that the trial court erred in dismissing the negligence claim against Snow Time, Inc. because the Release at issue did not specifically name or identify Snow Time, Inc. Appellants’ Brief at 61. We disagree.

The Release at issue states, in pertinent part, that Appellants release from negligence claims Appellee Ski Liberty Operating Corporation and its owners:

In consideration of being allowed to use the tubing area at Liberty, Whitetail or Roundtop, I HEREBY AGREE NOT TO SUE AND TO RELEASE, SKI LIBERTY OPERATING CORP., WHITETAIL MOUNTAIN OPERATING CORP. AND SKI ROUNDTOP OPERATING CORP., AS WELL AS THEIR OWNERS, AGENTS AND EMPLOYEES FROM ANY AND ALL LIABILITY RELATED TO INJURY, PROPERTY LOSS OR OTHERWISE RELATED TO MY USE OF THE TUBING FACILITY, REGARDLESS OF ANY NEGLIGENCE ON THE PART OF THE SAME. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE SAME, FROM ANY CLAIM FOR LIABILITY [*15]  RELATED TO INJURY AS A RESULT OF MY OR MY CHILD’S USE OF THE FACILITIES, REGARDLESS OF ANY NEGLIGENCE, RECKLESSNESS OR IMPROPER CONDUCT.

Release (emphasis added).

It is undisputed that Appellee Snow Time, Inc. owns Appellee Ski Roundtop Operating Corporation. Although the Release does not specifically name Appellee Snow Time, Inc., the Release still covers Appellee Snow Time, Inc. because the Release clearly and unambiguously covers the owner of Ski Roundtop Operating Corporation.

Moreover, Appellants do not otherwise contend that the Release is ambiguous. They raise no claims as to the Release’s general validity, conspicuity, or enforceability. Further, Appellants cite no authority to support their implication that unless the Release specifically names an owner, the term “owner” does not apply to it.

We agree with the trial court that the Release applied to Appellee Snow Time, Inc., as the owner of Ski Roundtop Operating Corporation. Therefore, the Release applied to general negligence claims against Appellee Snow Time, Inc. and Appellants’ claim to the contrary is without merit.

Based on the foregoing, we affirm.

Order affirmed.

Judge Ott joins the memorandum.

Judge Strassburger files a [*16]  dissenting memorandum.

Date: 8/14/18

Dissent by: STRASSBURGER

Dissent

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

In this case, the learned Majority holds that the trial court correctly concluded that Appellants could not establish a claim for recklessness or gross negligence as a matter of law at the summary judgment stage.1 Because I believe a reasonable jury could find that the facts constitute gross negligence and/or recklessness, I respectfully dissent. See Albright v. Abington Mem’l Hosp., 548 Pa. 268, 696 A.2d 1159, 1164 (Pa. 1997) (holding that a court may only take issue of gross negligence away from jury and decide the issue as a matter of law “if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence“).

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final [*17]  run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

Trial Court Order Granting Summary Judgment,2 6/19/2017, at 2-3.

What the trial court refers to as “deceleration mats” are actually rubber anti-fatigue mats commonly used as a walking surface in commercial kitchens. Spahr Deposition, 7/14/2016, at 25; Weeden Deposition, 7/20/2016, at 64-65; Whitcomb Deposition, 9/1/2016, at 95-96. The Resort inherited some of the mats from another resort. Whitcomb Deposition, 9/1/2016, at 96. When the Resort needed additional mats, Matt Weeden, the manager of the tubing park at the Resort, testified that he attempted to match the mats in use and “asked [the Resort’s] food and beverage guy where he got his and basically shopped around and compared the mats and figured out exactly what they were and ordered them.” Weeden Deposition, 7/20/2016, at 65. The mats are [*18]  not specifically designed for snow tubing. Id. Appellees used the mats to assist the snow tube rider to slow down at the bottom of the hill and to minimize collisions between a snow tube and people walking around at the bottom of the hill. Reichert Deposition, 7/13/2016, at 34-35; Whitcomb Deposition, 9/1/2016, at 81, 89.

The vinyl snow tubes used by the Resort have a written warning stating that the product is designed to be used on hills with no obstacles with adequate room to stop. Appellants’ Brief in Opposition to Motion for Summary Judgment, 3/16/2017, at Exhibit E. Appellees never conducted any studies as to the effect of a vinyl tube encountering a rubber mat. Whitcomb Deposition, 9/1/2016, at 96. In 2004, Appellees added elevation to the snow-tubing hill in order to create a more fun experience for their customers. Whitcomb Deposition, 9/1/2016, at 53-54. When they did so, they extended the runout “a little bit,” because making the hill higher resulted in the riders traveling faster down the hill and a farther distance at the bottom. Id. at 54-56.

Two of the safeties3 testified that they are aware that the speed that riders travel depends on various factors, including weather conditions, [*19]  the time of day, and the number of people going down a slope at a time. For example, riders went faster when it was colder. Spahr Deposition, 7/14/2016, at 34; Reichert Deposition, 7/13/2016, at 35-37. Nevertheless, the Resort did not measure speed other than by observation. The safeties and tubing supervisors determined when and how to use the mats depending on their observations of how the lanes were running, the speed riders were moving, and where the tubes were stopping, but there were no formal policies or procedures about when and how to use the mats. Reichert Deposition, 7/13/2016, at 35-38, 45; Whitcomb Deposition, 9/1/2016, at 98. The mats sometimes lay flat; sometimes they were folded. One of the tubing safeties observed that folded mats usually slowed down the rider more than flat mats due to an increase in friction. Reichert Deposition, 7/13/2016, at 36.

Appellants obtained the opinions of two experts. The first, Mark A. Di Nola, is an expert in ski and snow tubing risk management. The second, Gordon Moskowitz, Ph.D., is a an expert in mechanical and biomechanical engineering.

Di Nola opined that Bourgeois was severely injured as a direct result of Appellees’ deliberate actions, [*20]  which include the following:

[1.] [Appellees’] conscious decision to employ an operationally reckless company policy mandating the deployment of deliberately placed folded anti-fatigue rubber mats at the bottom of the tubing hill as deceleration devices with explicit knowledge that the deliberately deployed folded anti-fatigue rubber mats were not designed or tested for use as deceleration devices[.]

[2.] [Appellees’] conscious decision to attempt to transfer the increased risks to their guests rather than make the tubing experience safer for consumers by eliminating the increased risk as they did only after [Bourgeois’s] tragic incident, placing their corporate financial needs over the needs of their guests.

[3.] [Appellees] consciously deployed snow tubes and provided them to their patrons in a manner that directly violated the manufacturer’s warning label by using the tubes on hill with deliberately placed obstacles that were set out in an attempt to offset the fact that the hill did not provide adequate room to stop.

[4.] [Appellees’] conscious decisions described above increased the risk of serious bodily injury to riders over and above those inherent in the activity of snow tubing [*21]  in the Commonwealth of Pennsylvania.

[5.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and constitute an extreme departure from the ordinary standards of conduct for a ski area in the Commonwealth of Pennsylvania.

[6.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and are a proximate cause of [Bourgeois’s] injuries.

Di Nola Report, 3/15/2017, at 41-42.

Moskowitz opined, inter alia, that

***

2. The use of folded anti-fatigue mats as a deceleration device would expose tube riders to the likelihood of their tube encountering a sudden abrupt stop, particularly when the mats were folded with the ‘nubs’ exposed to the surface of the tube.

3. The stopping effect of a tube encountering a folded anti-fatigue mat with nubs exposed should have been readily apparent to [Appellees] well before [Bourgeois’s] accident of February 17, 2013.

4. Tube riders who travelled head [] first (on their stomachs) on ‘fast’ days would be subject to a greater [*22]  risk of suffering injuries similar to those experienced by [] Bourgeois.

***

6. Arranging the mats in a folded position enhances the risk of a sudden tube stop.

7. The variations in weather … would have resulted in [Bourgeois’s] tubing experience being significantly faster at or around 3:00 p.m. when his accident occurred than [on Bourgeois’s previous runs down the hill].

Moskowitz Report, 3/14/2017, at 20. Moskowitz also opined that Appellees

knew or should have known that tubers traveling at a high rate of speed would find their tube brought to an abrupt stop when it encountered a folded mat, with that risk increasing further when the mat was folded with the nubs exposed to the bottom of the tube. Analysis indicates that a tube and rider in the prone position with [Bourgeois’s] physical measurements, facing forward and traveling at approximately 15 mph would enter into a flipping motion upon contact with a folded mat due to the resulting friction and the fold. [B]ased upon the known weather conditions and [Bourgeois’s] weight, his speed at the point of encountering the folded mat was well in excess of this speed.

Id. at 16.

After discovery closed, Appellees moved for summary judgment, arguing, [*23] 
inter alia, that Appellants failed to support claims for reckless conduct, because Appellants used the mats in a matter customary to the industry without incident up until the incident. Appellees’ Motion for Summary Judgment, 2/14/2017, at ¶¶ 28-41; Appellees’ Memorandum of Law in Support of Motion for Summary Judgment, 2/14/2017, at 17-20 (pagination supplied). Appellees later argued that the record also did not support a claim of gross negligence. Appellees’ Reply Brief in Support of Motion for Summary Judgment, 3/31/2017, at 24. Appellees contended that Appellants’ expert, Moskowitz, attributed Bourgeois’s injuries to a “confluence of … interlinked events” and thus, Appellees would have no way of knowing or any reason to have known such events could have arisen to cause harm. Id. Appellants opposed Appellees’ motion for summary judgment by presenting the evidence referenced supra.

As the Majority recounts, the trial court stated the following regarding its determination that Appellants failed to set forth evidence support their claims of gross negligence and recklessness:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the [*24]  mats at the bottom of hills for snow tubers. … The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Bourgeois] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Court Order Granting Summary Judgment, 6/19/17, at 18-19.

The trial court further found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. at 19. See also id. at 22-23 (discussing gross negligence).

Noticeably absent from the trial court’s discussion is any mention of Appellants’ expert reports. “At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party.” Greely v. W. Penn Power Co., 2017 PA Super 33, 156 A.3d 276, 282-84 (Pa. Super. 2017). This includes all expert reports. In fact, this Court has held that when a trial court’s opinion does not reflect consideration of the non-moving party’s expert reports, this is error as it signals [*25]  a failure to consider all evidence of record in a light most favorable to the non-moving party. Id.

The Majority simply ignores the trial court’s failure to consider Appellants’ expert reports and undergoes its own analysis of the reports. It concludes that neither expert set forth a relevant standard of care and thus, the duty that Appellees failed to meet. Majority Memorandum at 8-10. The Majority dismisses the Moskowitz report entirely as irrelevant, and rejects the Di Nola report as conclusory. Id.

However, in my view, both experts satisfactorily assisted Appellants in establishing gross negligence and recklessness. Woven throughout the reports are detailed references to the way that Appellees grossly deviated from the standard of care. One cannot seriously dispute that Appellees owe their patrons, who are riding on a vinyl tube without a steering or stopping mechanism down a steep snow-covered hill on a course that Appellees designed, a duty to ensure that the patrons are able to stop safely without serious injury at the bottom. One hardly needs an expert to establish that placing a stationary object, which is designed for an entirely different use, in the path of a fast-travelling [*26]  snow tube rider in the hopes of slowing down the rider could instead, under certain foreseeable conditions, cause the rider to stop abruptly and eject the rider in a manner resulting in serious injury. This is particularly the case when Appellees have not conducted or reviewed studies to determine the effect of placing the mat in the rider’s path under various conditions. Further, a jury could find that risk of serious injury was substantially increased without a standardized method to measure riders’ specific speeds, assess conditions, or arrange the mats. Moreover, not only were the mats used by Appellees not designed for the purpose for which Appellees used them, they used the snow tubes in a manner that was contradicted expressly by the warning on the label – a label, by the way, which was illegible on Appellant’s tube.

The trial court states “[t]here is no evidence that [Appellants] were made aware of the risks of folding the deceleration mats and no evidence that any other incidents happened on the day Plaintiff suffered his injury[,] which would have put [Appellants] on notice that the mats were a problem. Trial Court Order Granting Summary Judgment, 6/19/2017, at 20 (emphasis [*27]  added). However, Appellants need not prove that Appellees actually were aware of the risks, just that Appellants had reason to know of facts which would lead a reasonable person to realize that the person’s conduct creates an unreasonable risk of physical harm to another and that such risk is substantially greater than that which is necessary to make the person’s conduct negligent. Tayar, 47 A.3d at 1200-01.4

In my view, Appellants have put forth enough evidence at this [*29]  stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

End of Document


Texas appellate court allows a release to stop a gross negligence claim.

If you have a clause in your release that says, “except gross negligence” or something like that get rid of it. Why teach the plaintiff’s how to beat you, besides, you may win, which is what happened in this case.

Citation: Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas: Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: Graciela Quiroz, individually, A/N/F of XXXX (“JOHN DOE 1”) and XXXX (“JOHN DOE 2”), Minors, and Robert Sullivan, Individually

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

Plaintiff injured her back attempting to do a back flip on a trampoline at the defendant’s facility rendering her a paraplegic. She sued for her injuries claiming negligence and gross negligence. The court found the release stopped the plaintiff’s claims for negligence and gross negligence.

Facts

On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.

Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.

Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.

The trial court granted the defendant’s motion for summary judgment based on the release and denied the plaintiff’s cross motion for summary judgment. The plaintiff appealed.

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

The issue for the appellate court was whether or not the motion for summary judgment granted for the defendant, and the cross motion for the plaintiff that was denied were done so correctly. Should a release bar a claim for negligence and gross negligence under Texas law.

Release law in Texas appears to be quite specific.

The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. A release is an absolute bar to the released matter and extinguishes a claim or cause of action.

To win Jumpstreet only had to show the fair notice requirement of the law was met.

Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice.

The fair notice requirement under Texas law requires the release language to be clear, unambiguous and within the four corners of the contract.

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract.

The issue the court focused on was the claim the plaintiff originally made that the defendant identified in the release was not the defendant who owned and operated the facility where she was injured. The original defendant was an LLC and had been dissolved, and a new LLC had taken its’ place. The release was not updated to show these changes.

In many states, this would have been a fatal flaw for the defendant.

The court found the defendants were owned and run by the same brothers and were the same for the purposes of this lawsuit. The new LLC replaced the old LLC and was covered by the release.

The court then looked at the release and pointed out the reasons why the release was going to be supported.

As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries, including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Furthermore, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.

The plaintiff then argued the release was void because a release under Texas law cannot waive the claims of a minor when signed by a parent. The court agreed. However, since the child was not the injured plaintiff, it did not matter.

The court did look at the issue of whether or not a parent could sign away a minor’s right to sue. The court held the minor could still sue; however, a release signed by the parent would bar all the derivative claims based on the claims of the minor child. That means all claims by the parents, loss of consortium, etc., would be barred by the release. Only the claims of the minor child would survive.

The court then looked at whether a release could stop a claim for gross negligence. The court found that the decision had not been reviewed by the Texas Supreme Court and there was a mix of decisions in Texas regarding that issue.

The Texas courts that have allowed a release to top a gross negligence claim have held there is no difference between negligence and gross negligence under Texas law. The court went on to read the release and found the release in question had language that prevented claims for negligence and gross negligence. Therefore, the gross negligence claim was waived.

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law.

The release said it stopped claims for Gross Negligence and the Court agreed.

The defendant one because they had a well-written release that was easy to see and understand and said you can’t sue the defendant for negligence or gross negligence.

So Now What?

This is a first. A release was used to stop a gross negligence claim that was not based on a failure of the plaintiff to allege facts that were gross negligence. The release said it was effective against claims for negligence and gross negligence, and the court agreed.

Unless your state has specific statements were putting gross negligence in a release may void your release, or your supreme Court has specifically said a release cannot protect against gross negligence claims, you may want to add that phrase to your release.

No matter what, GET RID of clauses in your release that state the release is valid against all claims EXCEPT gross negligence. It is just stupid to put that in a release unless you have a legal system that requires it.

Putting that information into your release just tells the plaintiff and/or their attorney how to beat you. Don’t help the person trying to sue you!

Second, you never know; it may work. It did in this case in Texas.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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

   

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

Word Count: 166

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

gross negligence, entities, public policy, waive, summary judgment motion, summary judgment, partial summary judgment, trial court, cause of action, matter of law, fair notice, pet, negligence rule, conspicuousness, cross-motion, consortium, pre-injury, assumption of risk, trampoline, bystander, lettering, argues


Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

Graciela Quiroz, individually, A/N/F OF XXXX (“JOHN DOE 1”) AND XXXX (“JOHN DOE 2”), Minors, and Robert Sullivan, Individually, A/N/F OF XXXX (“JOHN DOE 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees

No. 05-17-00948-CV

Court of Appeals of Texas, Fifth District, Dallas

July 9, 2018

On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. 15-02671

Before Myers, Boatright, and O’Neill Justices. [1]

MEMORANDUM OPINION

MICHAEL J. O’NEILL JUSTICE, ASSIGNED

Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.

Background

On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.

Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.

Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.

Issue Presented

In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.

Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.

Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.

Applicable Law

We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.- Dallas 2009, no pet.); see also Tex. R. Civ. P. 166A(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).

The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.- Dallas 2011, no pet, ).

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.

Discussion

Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Mo., Kan. & Tex. Ry. Co. of Tex. v. Carter, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).

A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”

The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.

Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).

The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.

Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.-Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. Moreover, the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799- 800 (Tex. App.-Houston [14th Dist.] 1998, no pet.).

Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.-Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.[2] Some appellate courts have held that negligence and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.-Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.-San Antonio 1994, writ denied).

In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.-Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.-Beaumont 1986, no writ).

Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived. See Quintana, 347 S.W.3d at 450.

Conclusion

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.

We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.

On Appeal from the 298th Judicial District Court, Dallas County, Texas Trial Court Cause No. 15-02671. Opinion delivered by Justice O’Neill. Justices Myers and Boatright participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.

—–

Notes:

[1] The Hon. Michael J. O’Neill, Justice, Assigned

[2] We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.

gross negligence, entities, public policy, waive, summary judgment motion, summary judgment, partial summary judgment, trial court, cause of action, matter of law, fair notice, pet, negligence rule, conspicuousness, cross-motion, consortium, pre-injury, assumption of risk, trampoline, bystander, lettering, argues


Interesting decision only real defense was the Wyoming’s Recreation Safety Act, which provides little if any real defense.

Defendants are the company that booked the trip (Vail through Grand Teton Lodge Company) and the travel agent who booked the trip.

Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788

State: Wyoming

Plaintiff: Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Per-sonal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs

Defendant: Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc.

Plaintiff Claims: Negligence, Punitive damages

Defendant Defenses: Wyoming’s Recreation Safety Act

Holding: Mixed, mostly for the plaintiff

Year: 2009

Summary

Decision looks at the liability of the travel agency and the hotel that booked a rafting float trip where three people died. The only defenses of available were the Wyoming’s Recreation Safety Act which helped keep the lawsuit in Wyoming applying Wyoming law, but was ineffective in assisting in the defense of the lawsuit.

The rafting company is not part of this decision so probably the raft company settled with the defendants before the case was filed or this motion was heard.

Facts

Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. GTLC is organized under the laws of Wyoming and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.”

On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. They traveled via several vans to the rafting launch site at Deadman’s Bar. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria Urrutia. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years.

During the float trip, Raft No. 2 struck a log jam. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result.

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

The first issue was a choice of laws (jurisdiction and venue) provision in the agreement with the travel agency Tauck, which stated venue was to be in Connecticut. The plaintiff was arguing that the case should be moved to Connecticut, which is odd, because the plaintiff’s filed the case to start in Wyoming. However, since they sued in Wyoming, the plaintiff is still arguing that Connecticut law should apply.

Tauck argued the choice of law provisions was for its benefit, and it had the right to waive that provision in the agreement. The court found that Tauck had the right to waive a provision in the agreement that was there for its benefit.

In Wyoming, a contract must be construed according to the law of the place where it was made. There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.”

The court held that the provision was for Tauck’s benefit because the living plaintiffs were residents of Georgia and Louisiana.

The court also stated, even it had not found for Tauck on this issue this way; it would have still used Wyoming law because of Wyoming’s strong public policy of recreational immunity.

Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of. The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.

Choice of law provisions are usually upheld by the courts; however, there are ways to get around them as this court explained.

The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.

The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation providers in Wyoming:

Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.

The court then reviewed the Wyoming’s Recreation Safety Act. The plaintiff’s argued the Wyoming’s Recreation Safety Act did not apply for three reasons.

First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants.

Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act.

Third, they assert that federal law preempts the Act.

The court found the first argument was already resolved in its analysis of jurisdiction above.

The second argument was the Wyoming’s Recreation Safety Act did not apply to the defendant Tauck, because it was a travel agent in Connecticut and not a “provider” as defined under the act. The court found that Tauck was a provider under the act because as part of its package. Provider is defined as “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.”

The final issue was the argument that the state law was pre-empted by federal law. The argument was based on the concessionaire agreement the defendant had with the NPS. Although the concession agreement with the NPS provided for visitor safety, there was nothing in the agreement showing intent to pre-empt the Wyoming’s Recreation Safety Act.

The court then looked to see if the Wyoming’s Recreation Safety Act provided a defense in this case. The court first defined Inherent Risk under Wyoming law.

‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”

[As you can see, the definition of inherent risk is not a broad definition it narrowly defines the risks to those intrinsic or integral to the activity. That leaves out thousands of risks created by man such as steering the raft, water releases, choosing the run, etc. which are probably not protected by the act.]

Outside of the inherent risks, to thwart the act, the plaintiff only needs to argue the risk was not inherent and the case would proceed to trial because the Wyoming’s Recreation Safety Act does not provide a defense to any risk not inherent in the sport. Because the court could not determine what risks were inherent what were not, it held the Wyoming’s Recreation Safety Act did not apply in this case.

In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park, and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. Complex braiding obscures the main channel, and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.

The court moved on to Tauck’s motion for summary judgment because as a tour agency is was not liable for the negligent acts of third parties, it dealt with. The law supports that argument. “As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control.”

However, that general rules does not apply if a contract with the travel agency or marketing state the travel agency will undertake a duty. (Always remember Marketing makes Promises Risk Management has to Pay for.)

Here the court found the promotional materials were marketing and did not rise to the level to be promises to be kept.

The plaintiff also argued Tauck took on a greater duty to the guests when it undertook the duty to have the guests sign the defendant GTLC’s acknowledgment of risk forms. That duty included duty to inform the guests of the risk associated with river rafting. However, the court could find nothing in Tauck’s action indicating it was accepting a greater duty when it handed out the assumption of the risk forms.

The plaintiff’s created a fraud argument. Under Montana’s law:

To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation

The plaintiff’s argued that the defendants made all sorts of statements and advertising that the float trip was a leisurely scenic trip. The channel the raft guide took was not leisurely but was a dangerous channel by some authorities. However, the issue was, did the defendants intentionally made the statements about the river to induce the plaintiffs to the trip.

The defendants wanted the plaintiff’s claim for punitive damages dismissed. In Wyoming, punitive damages appear to be a claim much like negligence. The punitive damages claim was based on the same allegations that the fraud claim was made, that the defendants misrepresented the nature of the float trip.

Punitive damages in Wyoming are:

We have approved punitive damages in circumstances involving outrageous conduct, such as intention-al torts, torts involving malice and torts involving willful and wanton misconduct.” Willful and wanton misconduct is the intentional doing, or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.”

Failing to advise the plaintiffs that the river was running higher than normal because of the spring run off did not rise to a level to be reckless and willful misconduct. The one channel of several the one guide went down was a negligent decision, not a willful one.

So Now What?

Fairly simple, use a release. It would have stopped this lawsuit sooner. If the outfitter would have used a release, it could have protected the lodge and the travel agent. I’m sure the lodge is going to use one now, which will probably just muddy the water because of multiple releases and defendants.

There are very few statutes that provide any real protection in the outdoor recreation industry. Most, in fact, make it easier for the plaintiffs to win. The exception to the rule is a few of the Ski Area Safety Statutes.

Be prepared and do more than rely on a week statute.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, 


A fly-fishing lawsuit, a first.

Montana Federal Court covers a lot of interesting legal issues for the OR industry in this decision. However, defendant is in a tough position because the statutes provide no help, he can’t use a release and probably like most fly-fishing guides; he believes he won’t be sued.

McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

State: Montana

Plaintiff: Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, and Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin

Defendant: James Yeager d/b/a Jim Yeager Outfitters

Plaintiff Claims: negligence, negligent infliction of emotional distress, and loss of consortium

Defendant Defenses: Montana Recreation Responsibility Act

Holding: Split, mostly for the defendant

Year: 2018

Summary

At the end of a float fly fishing trip, the boat hit a rock throwing the deceased into the river. While attempting to get the deceased back in the boat the deceased partner fell in. The deceased yelled to grab her because she could not swim. The defendant grabbed the girlfriend and maneuvered the boat through rapids.

The deceased drowned, (supposedly). Neither were wearing PFDs.

Facts

Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.

McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.

On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.

McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.

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

Only the legal issues affecting fly fishing or the outdoor industry will be reviewed. This decision is a result of both parties filing motions for summary judgment, so there is no chronological hierarchy of how the decision is written. Each motion is tackled by the judge in the order to make the following arguments more manageable.

A few things to remember. Montana does not allow an outfitter or guide to use a release. See Montana Statutes Prohibits Use of a Release.

Both parties filed motions concerning the Montana Recreation Responsibility Act (MRRA). The MRRA is similar to the Wyoming Recreational Safety Act, both of which are solely assumption of the risk statutes and weak overall. The plaintiff argued the MRRA was unconstitutional on several grounds, all of which were denied. The defendant argued the MRRA should bar the plaintiff’s claims which were also denied.

The first issue was inherent risks under the MRRA are not defined per activity or in general.

Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented by the use of reasonable care. Mont. Code Ann. § 27-1-752(2).

This leaves a monstrous gap in the protection it affords, in fact, does not afford outfitters and guides in Montana any real protection.

The court did not agree that the MRRA was broad enough to protect the defendant in this case.

Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.

Because there was a genuine issue of material fact (a mix of plausible opinions) the MRRA was not broad or strong enough to stop the plaintiff’s claims and the defendant’s motion failed.

The plaintiff argued the MRRA was void because it was vague, it did not define inherent risk.

The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” The Montana Supreme Court has similarly declared that a statute is unconstitutionally vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” “[P]erfect clarity and precise guidance are not required.” A statute is not vague “simply because it can be dissected or subject to different interpretations.”

The plaintiff also argued that because the MRRA did not define risk that it was void.

A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning.

The plaintiff argued they should be able to sue for negligent infliction of emotional distress (“NEID”).

To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” The question of whether the threshold level of emotional dis-tress can be found is for the Court to determine. (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”).

In Feller, the Montana Supreme Court considered several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plain-tiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional dis-tress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event.

The plaintiff also argued they should be able to sue for loss of consortium.

Montana law recognizes loss of consortium claims by an adult child of an injured parent. In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.”

In establishing a loss of parental consortium claim, the plaintiff may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.”

The court then looked at the issue of abnormally dangerous. A finding of that an activity is abnormally dangerous brings more damages and fewer requirements to prove part of the negligence of the defendant.

“Whether an activity is abnormally dangerous is a question of law.” No court has held float fly fishing is an abnormally dangerous activity, and this Court declines Plaintiffs’ invitation to be the first to do so.

So Now What?

A statute that protects defendants based on assumption of the risk does so because it identifies specific risk and broadens the definitions of what an inherent risk is. An example would be the Colorado Skier Safety Act. That act describes the inherent risk of skiing and then adds dozens of more risk, which are beyond the normal scope of inherent.

Both the MRRA and the Wyoming Recreational Safety Act statutorily defines the common law but does nothing to broaden or strengthen the common law. They could better be defined as politically pandering, an attempt by a politician to make constituents feel better by giving them something, which, in reality, has no value.

The fly-fishing outfitter was caught in Montana’s lack of available defenses, no statutory protection and no availability of a release. He might be able to strengthen his defenses by having his clients sign an Assumption of the Risk Document. He also might offer them PFDs.

Furthermore, remember in most whitewater or cold-water deaths drowning is not the cause of the death. Most people die of a heart attack. risk or Wikipedia: Cold Shock Response.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

 

Top of the Page


Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788

Rizas et. al. v. Vail Resorts, Inc.; et. al., 2009 U.S. Dist. LEXIS 139788

Alexis R. Rizas, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of John J. Rizas, deceased; John Friel, Individually and as the Personal Representative of the Wrongful Death Beneficiaries of Elizabeth A. Rizas, Deceased; Ronald J. Miciotto, as the Personal Representative of the Wrongful Death Beneficiaries of Linda and Lewis Clark, Deceased; James Clark; Lawrence Wilson; and Joyce Wilson, Plaintiffs, vs. Vail Resorts, Inc.; Grand Teton Lodge Company; Tauck, Inc., a.k.a. Tauck World Discovery, Inc., a.k.a. Tauck Tours, Inc., Defendants.

Case No. 08-CV-139-J

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

2009 U.S. Dist. LEXIS 139788

October 1, 2009, Filed

COUNSEL: [*1] For Alexis R Rizas, individually and as the personal representative of the wrongful death beneficiaries, on behalf of John J Rizas, John Friel, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Elizabeth A Rizas, Ronald J Miciotto, individually and as the personal representative of the wrongful death beneficiaries, on behalf of Linda Lewis Clark, James Clark, individually, Lawrence Wilson, individually, Joyce Wilson, individually, Plaintiffs: Mel C Orchard, III, Roy A Jacobson, Jr, LEAD ATTORNEY, SPENCE LAW FIRM Jackson, WY USA.

For Grand Teton Lodge Company, a Wyoming corporation, Defendant: Joe M Teig, LEAD ATTORNEY, Susan Combs, HOLLAND & HART, Jackson, WY USA; Maryjo C Falcone, Peter W Rietz, LEAD ATTORNEY, RIETZ LAW FIRM, Dillon, CO USA.

For Tauck Inc, a New Jersey corporation doing business in the state of Connecticut, also known as Tauck Tours Inc, also known as Tauck World Discovery Inc, Defendant: William M McKellar, LEAD ATTORNEY, McKELLAR TIEDEKEN & SCOGGIN, Cheyenne, WY USA.

JUDGES: ALAN B. JOHNSON, UNITED STATES DISTRICT JUDGE.

OPINION BY: ALAN B. JOHNSON

OPINION

ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendants’ [*2] motions for summary judgment. Tauck, Inc. filed five motions and Grand Teton Lodge Company (“GTLC”) filed one, all on July 22, 2009. After careful consideration of the arguments and evidence supplied by both Plaintiffs and Defendants, for the reasons discussed in detail below, the Court finds that a genuine issue of material fact exists regarding the inherent risk of the river float activity. In all other respects, the Court will grant the defendants’ motions for summary judgment.

FACTS

The Court relates the following facts in the light most favorable to Plaintiffs, who are opposing Defendants’ motions for summary judgment.

Tauck is a corporation formed under the laws of New Jersey and primarily doing business in Connecticut. Stipulated Facts, Docket Entry 108, ¶ 9. Tauck is in the business of selling tour packages to its clients, one of which in 2006 was a tour called the “Yellowstone & Grand Teton – North.” Id. ¶ 24. This tour began in Salt Lake City, Utah and ended in Rapid City, South Dakota. Id. The tour included a two-night stay at the Jackson Lake Lodge in the Grand Teton National Park, and the Lodge was operated by GTLC. Id. ¶¶ 23, 24. GTLC is organized under the laws of Wyoming [*3] and operates within the Grand Teton National Park pursuant to a concessionaire agreement with the National Park Service. Id. ¶¶ 7, 8. Among the services that GTLC offered its guests is a 10-mile float trip along the Snake River from Deadman’s Bar to the Moose Landing. Id. ¶¶ 23, 24. Tauck’s 2006 promotional materials contains the following sentence: “Take a scenic ten-mile raft trip on the Snake River as it meanders through spectacular mountain scenery alive with wildlife, including moose, elk, deer, and many species of birds.” Plaintiff’s Resp. to Motion for Summary Judgment on Plaintiffs’ Claim for Fraud, Ex. 5.

On June 2, 2006, a tour group gathered at the Lodge at approximately 8:00 a.m. Stipulated Facts ¶ 27. They traveled via several vans to the rafting launch site at Deadman’s Bar. Id. The trip took approximately one hour. There the larger group was split into four smaller groups, one for each raft provided. Id. ¶ 28. Raft No. 1 was guided by Wayne Johnson, an employee of GTLC. The raft at issue, Raft No. 2, had 11 passengers: John Rizas, Elizabeth Rizas, Patricia Rizas, Linda Clark, James Clark, Lawrence “Bubba” Wilson, Joyce Wilson, Tom Rizas, Ruth Rizas, Jon Shaw, and Maria [*4] Urrutia. Id. ¶ 29. The raft guide was Daniel Hobbs, who was also a GTLC employee and had been for four years. Id. ¶ 30.

During the float trip, Raft No. 2 struck a log jam. Id. ¶ 32. The collision occurred in the Funnelcake channel, which was one of several braided channels of the river. The raft upended as a result and all passengers were thrown into the river. John Rizas, Elizabeth Rizas, and Linda Clark died as a result. Further facts will be discussed as necessary to resolve each legal issue.

DISCUSSION

This Court has jurisdiction pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the plaintiffs and defendants. Vail Resorts was dismissed from this case for lack of jurisdiction on June 16, 2009. Plaintiffs are citizens of Maryland, Arizona, Louisiana, and Georgia. GTLC is incorporated in Wyoming, which is also its principal place of business. Tauk is incorporated in New Jersey, and its principal place of business is Connecticut.

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” [*5] Fed. R. Civ. P. 56(c); e.g., Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1144 (10th Cir. 2009). The Court must view all facts and make inferences from the evidence in the light most favorable to the non-moving party. E.g., Utah Animal Rights Coalition v. Salt Lake County, 566 F.3d 1236, 1242 (10th Cir. 2009). The Court may consider only admissible evidence. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998). See also Fed. R. Civ. P. 56(e)(1).

Choice of Law

Because the Court is sitting in diversity, it would normally apply Wyoming law. See Butt v. Bank of America, N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). In this case, however, Plaintiffs have raised a choice-of-law issue by urging this Court to apply Connecticut law. A federal court sitting in diversity applies the choice-of-law principles of the state in which it sits. Morrison Knudson Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n.12 (10th Cir. 2008). Accordingly, this Court will apply Wyoming choice-of-law principles.

Plaintiffs first contend that Connecticut law applies because Tauck and its clients signed a contract to that effect. Specifically, the contract states the following:

It is agreed by Tauck World Discovery and the Tour Member that all legal claims, actions and proceedings against Tauck World Discovery under, in connection with, resulting from or incident to a tour may be instituted, if at all, only in a state or federal court within the State of Connecticut, USA, to the exclusion of the courts of or in any other state or jurisdiction. It is further agreed that all such claims, actions and proceedings shall [*6] be governed by and decided in accordance with the laws of the State of Connecticut.

Plaintiffs’ Resp. to Motion for Summary Judgment on Plaintiffs’ Claims for Fraud, Ex. 2. Tauck counters by claiming that the choice-of-law provision was intended for its benefit, and therefore it can waive that provision. Furthermore, it points out that, if the contract is to be enforced, there are a number of other provisions that would benefit Tauck, such as the choice-of-forum provision in the excerpt above.

In Wyoming, a contract must be construed according to the law of the place where it was made. J.W. Denio Milling Co. v. Malin, 25 Wyo. 143, 165 P. 1113, 1116 (Wyo. 1917). There is no evidence indicating where the contract at issue was formed, but that makes little difference because the law of waiver of contract provisions is widespread and well accepted. “A party to a contract may waive a provision of the contract that was included for his benefit.” E.g., Lanna v. Greene, 399 A.2d 837, 841 (Conn. 1978). See Takahashi v. Pepper Tank & Contracting Co., 58 Wyo. 330, 131 P.2d 339, 354 (Wyo. 1942). The question in this case is whether the choice-of-law provision was included for Tauck’s benefit.

The Court finds that it was. As far as the evidence indicates, none of the tour members or their survivors who are involved in this action are residents of Connecticut. [*7] The three plaintiffs who were also tour members, Mr. Clark and the Wilsons, are residents of Louisiana and Georgia, respectively. The residence of the three deceased tour members is not clear from the evidence submitted to the Court. Even if one of the three decedents were residents of Connecticut, that does not necessarily mean that the provision existed for that person’s benefit. Tauck drafted the provision at issue. The provision benefits Tauck by ensuring that any claims will be litigated in the forum most convenient to it, and under the law with which it is most familiar. Meanwhile, there is little or no benefit to any tour member who is not a resident of Connecticut. Even then, the choice-of-law provision would benefit the tour member by happenstance rather than by intention. Accordingly, Tauck may waive the choice of law provision, and has affirmatively stated that it has done so. Its waiver is further supported by the fact that it has never contended that suit is improper in this Court as a result of the choice-of-forum provision in the same contract.

Even if Tauck had not waived its right to enforce the choice-of-law provision, this Court would not enforce this provision due [*8] to Wyoming’s strong public policy of recreational immunity. Plaintiffs seek application of Connecticut law largely to avoid the effects of Wyoming’s Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 through -123 (LexisNexis 2009). The Court will discuss the Act in detail below; it is sufficient here to note that the Act provides a near-total elimination liability of a recreation provider where a person is injured because of an “inherent risk” of a recreational activity. River floating is specifically named as a qualifying recreational activity. Wyo. Stat. Ann. § 1-1-122(a)(iii). Consequently, Plaintiffs seek application of Connecticut law because Connecticut is not so protective of its recreational providers as Wyoming.

It is this very policy of protecting these providers that renders the contractual choice-of-law provision invalid. The Wyoming Supreme Court has not answered the question of whether the Act represents so strong a Wyoming policy as to render invalid a contractual choice-of-law provision that would eliminate the Act’s application. This Court believes that Wyoming, like other states, would look to general contract principles to resolve this question. The Restatement (Second) of Conflict of Laws § 187 (1971) states:

(1) The law of the state chosen by the parties to govern [*9] their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.

(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either

(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or

(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.

The tour members and Tauck agreed that Connecticut law would apply, and Connecticut has a significant connection to the contract [*10] because of Tauck’s operation there. Nevertheless, Wyoming’s interest in the resolution of this issue is significantly greater because important Wyoming policy concerns are involved in the question of whether a provider of recreation opportunities should be subject to liability for injury from inherent risks. Absent a Connecticut plaintiff, Connecticut has no interest in whether a Wyoming corporation is held liable. Indeed, Connecticut’s interest in this case, if any, is probably more closely aligned with Tauck, which operates in that state.

The Court’s analysis is further informed by the fact that that Wyoming’s public policy in this matter is a strong one. Initially, the Act was less protective of recreation service providers, defining an “inherent risk” as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Wyo. Stat. Ann. § 1-1-122(a)(i) (LexisNexis 1989). In 1996, the Wyoming Legislature eliminated the clause, “and which cannot reasonably be eliminated, altered or controlled.” 1996 Wyo. Sess. Laws ch. 78, § 1. Subsequent to the amendment, this Court recognized the extraordinary protection offered to recreation [*11] providers in Wyoming:

The Court recognizes that its reading of the Wyoming Recreational Safety Act provides enormous protection to those in the business of providing recreational activities. . . . Consumers in Wyoming are now faced with an entire industry whose economic and consequent legislative power enables them to conduct business with only a passing thought to the safety of those who utilize their services. Despite this frightening prospect, the Court recognizes its place in our nation’s federal system of government. A court should not decimate the purpose of a legislative act, no matter how distasteful, when that purpose is clearly incorporated in the language of the act.

Cooperman v. David, 23 F. Supp. 2d 1315, 1321 (D. Wyo. 1998). Given this extraordinary protection, this Court must conclude that the Wyoming Legislature views immunity for recreation providers to be an important state interest. Wyoming law should apply in this case.

The Court’s decision is consistent with precedent set by the Court of Appeals for the Tenth Circuit. In Electrical Distributers, Inc. v. SFR, Inc., one issue considered by the court was whether the trial court properly applied Colorado law where a covenant not to compete named Colorado as the applicable law, [*12] but was to be performed exclusively in Utah. 166 F.3d 1074, 1083-84 (10th Cir. 1999). Using the analysis that this Court has adopted above, the Court of Appeals determined that Utah’s strong interest in careful scrutiny of covenants not to compete controlled over any interest Colorado had in enforcement of a contract made within its boundaries, but to be performed outside them. Id.

Recreation Safety Act

Defendants rely on Wyoming’s Recreation Safety Act and claim that, pursuant to the Act, they owed no duty of care to any of the tour members. In response, Plaintiffs provide three reasons that the Act does not apply. First, they contend that Connecticut law applies–an argument that the Court has already resolved in favor of Defendants. Second, Plaintiffs argue that Tauck is not a “provider” as defined in the Act. Third, they assert that federal law preempts the Act. The Court will now address Plaintiffs second and third arguments in turn.

Wyo. Stat. Ann. § 1-1-122(a)(ii) defines “provider” as follows: “[A]ny person or governmental entity which for profit or otherwise offers or conducts a sport or recreational opportunity.” Plaintiffs claim that Tauck is not a provider because of its position that it did not conduct the activity itself, but rather was a travel agent [*13] that procured the raft trip on behalf of its tour members. In doing so, however, Plaintiffs overlook the undisputed fact that Tauck offered the float trip as part of its tour package. Given that the Act includes offering a recreational opportunity in its definition of “provider,” it is obvious that Tauck is, in fact, a provider.

Plaintiffs’ preemption argument requires significantly more discussion. State law may be preempted by federal law in three ways. First, Congress may expressly preempt state law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996). Second, Congress may preempt an entire field by regulating that field so comprehensively that there is no room for state regulation. Id. at 31. Third, federal and state law may be in irreconcilable conflict, preempting state law even though Congress has not explicitly stated its intent to do so. Id. None of these three types of preemption occurred in this case.

The specific federal “law” that Plaintiffs believe preempt the Act is the concession contract between GTLC and the National Park Service. In particular, Plaintiffs point to the following language in the concession contract:

The Concessioner is responsible for providing a safe and healthful environment for its employees and clients as outlined [*14] in the Contract. The Concessioner will develop a Risk Management Program that will be approved by the Service in accordance with the Occupational Safety and Health Act (OSHA) and Service Guidelines. The Risk Management Program will be reviewed annually by the Service.

Plaintiffs’ Resp. to Motion For Summary Judgment on Wyoming Recreation Safety Act, Ex. 3. Plaintiffs claim that the concession contract “change[s] the character of the state law provisions encompassed by” the Act, and therefore results in an actual conflict between state and federal law. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, at 12. Plaintiffs also point to the National Park Service Management Policies 2006, which provides for visitor safety emergency response and emergency preparedness. That document refers several times to the safety of visitors to the park. Plaintiffs’ Resp. Motion to Dismiss on Wyoming Recreation Safety Act, Ex. 4.

Plaintiffs make an argument similar to that raised by the plaintiff in Carden v. Kelly, 175 F. Supp. 2d 1318 (D. Wyo. 2001). In Carden, this Court summarized the plaintiffs’ arguments as follows:

1) Plaintiff’s injuries occurred on federal land, the Bridger-Teton National Forest; 2) Defendants, in order to operate [*15] their business in the Bridger-Teton National Forest had to obtain a special-use permit from the Forest Service; 3) because Plaintiff’s injuries occurred on federal land, federal law, namely Forest Service regulations and the Defendants’ special-use permit apply; 4) the special-use permit contains provisions concerning negligence and injury to patrons of Forest Service permit holders, which Plaintiff claims requires the permit holders to inform their guests of the risks and have them sign a risk acknowledgment form; and 5) provisions in the Forest Service regulations requiring patrons of the Forest Service concessionaires to assume “usual” risks of activities within the National Forest conflicts with, and thus preempts, the Wyoming Recreation Statute.

Carden, 175 F. Supp. 2d at 1322. The Court determined that, although Congress had the authority to pre-empt the Recreation Safety Act on federal lands, it did not do so. Id. at 1322-26.

In the current case, the Court will follow Carden‘s sound reasoning. The Management Policies and the concession contract cited by Plaintiffs do broadly emphasize the Park Service’s interest in public safety, but does not indicate any intent to preempt Wyoming tort law. “Courts do not ‘lightly attribute [*16] to Congress or to a federal agency the intent to preempt state or local laws.'” Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1204 (10th Cir. 2009) quoting Nat’l Solid Wastes Mgmt. Ass’n v. Killian, 918 F.2d 671, 676 (7th Cir. 1990).

Plaintiffs in the case at bar attempt to distinguish Carden by noting that the requirements in Carden were imposed by the Forest Service, while this case involves the Park Service. Plaintiffs do not point out how this fact is relevant, and the Court does not discern any. The Park Service was created to

promote and regulate the use of the Federal areas known as national parks . . . to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1. Its mission is therefore one of conservation, and the Court does not perceive any intent to impact state tort law. The Court finds that federal law has not preempted the Wyoming Recreational Safety Act.

It is now incumbent upon the Court to determine if the Act applies to the circumstances of this case and insulates the defendants from liability. The Act states, in relevant part,

(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport [*17] or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.

Wyo. Stat. Ann. § 1-1-123.

Past disputes regarding the Act’s application involve, as does this case, questions about what constitutes an “inherent risk.” “‘Inherent risk’ with regard to any sport or recreational opportunity means those dangerous conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Id. § 1-1-122(a)(i). The Wyoming Supreme Court has had few occasions to address the determination of what is an inherent risk of a particular activity. One of the more recent cases arose as a certified question from this Court. Jackson Hole Mount. Resort Corp. v. Rohrman, 2006 WY 156, 150 P.3d 167 (Wyo. 2006). The [*18] question certified was: “When faced with motions for summary judgment in which there are no genuine issues of material fact, how should a court differentiate, as a matter of law, between ‘inherent risks’ . . . and non-inherent risks . . . ?” Id. at 168.

[The] general answer is that if such a motion is filed, the trial court must scrutinized the facts brought forward by the parties with great care. If the court can say that, given the evidence, this is an “inherent risk” and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it. On the other hand, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder).

Id. This formulation, of course, depends on properly characterizing the activity and risk. For example, in the current case, the activity may be characterized as a “scenic float trip”–as Plaintiffs do throughout their memorandum in opposition to summary judgment–or as “river rafting.” The particular [*19] risk may be described generically as falling out of the boat or, more specifically, as colliding with a log jam resulting in ejection from the raft.

Governing precedent demands that the activity and risk be described as particularly as possible. In Cooperman v. David, for example, the Court of Appeals for the Tenth Circuit stated that, “[w]hen attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the [injured person] was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record.” 214 F.3d 1162, 1167 (10th Cir. 2000). In this case, the activity is best described as river floating under the water conditions that were apparent when the tour members embarked. The risk is best described as the risk that the raft would encounter a log jam, ejecting one or more tour members into the river.

Applying the law from this point forward is somewhat more problematic because the precedent in this area is not entirely clear. In Cooperman, the court affirmed this Court’s grant of summary judgment in favor of the defendant because a loose saddle cinch was an inherent risk of the activity of horseback [*20] riding. Id. at 1169. The trial court received expert testimony that a slipping saddle was a risk inherent to horseback riding. Id. at 1168. There was also testimony that the particular saddle at issue was cinched too loosely, and an inference that the loose cinching caused the saddle to slip. Id. The Cooperman court said that, even with this evidence, the risk was inherent because a person cinching a saddle had to balance between doing so too tightly and too loosely. “This imprecision in the cinching of the saddle is ‘characteristic’ or ‘typical’ of and therefore ‘inherent in’ the sport of horseback riding.” Id. Critically, the court stated,

As part of the Coopermans’ burden of showing that [the provider] owed Dr. Cooperman a duty of care, the Coopermans must provide some evidence to explain why the saddle fell, which explanation is not inherent to the sport. . . . Thus, stating only that the cinch was not tight enough does not show that the risk was no longer inherent to the sport. The Coopermans have the burden of presenting some evidence on summary judgment that would raise a question of fact that the loosely cinched saddle was caused, not by an inherent risk, but rather by a risk that was atypical, uncharacteristic, [*21] not intrinsic to, and thus not inherent in, the recreational activity of horseback riding. The Coopermans have not met this burden.

Id. at 1168-69.

The current case presents certain parallels. It is undisputed based on the evidence before the Court that being ejected or otherwise falling out of a raft is generally an inherent risk of river floating. For example, Sheri Griffith, an outfitter and river guide, testified that it is an inherent risk that a person might “become a swimmer” during a float trip. Griffith Depo. 152. There is no testimony that contradicts her opinion. It is also undisputed that the rafting guide instructed the tour members that, if they were to end up in the river, the proper procedure was to float on their back until they could be recovered. L. Wilson Depo. 318; Hobbs Depo. 136. This is similar to the expert testimony in Cooperman that a slipping saddle is an inherent risk of horseback riding: it describes the risk in general terms without looking at the specific cause. Also like Cooperman, Plaintiffs in this case have not submitted admissible evidence that describes a specific cause of the injury, and shown that the particular cause falls outside of the realm of being an inherent [*22] risk. Following the Cooperman analysis, then, the Court would conclude that Plaintiffs have failed to demonstrate that a genuine issue of material fact exists regarding whether encountering a log jam resulting in ejection from the raft is an inherent risk of river floating.

But the Court must also consider Sapone v. Grand Targhee, Inc., 308 F.3d 1096 (10th Cir. 2002). In that case, a six-year-old girl was injured when her horse bolted. Sapone, 308 F.3d at 1098. The plaintiffs presented evidence from an expert that “(1) the instructions were inadequate, (2) the horse was too large, (3) headgear should have been provided, (4) the trail ride may have been too dangerous, and (5) her parents were not notified of the accident.” Id. at 1104. It is not entirely clear why these facts would affect the nature of the risk. The court concluded “that a reasonable jury might conclude that [the girl’s] injuries were the result of negligence that is not characteristic of, intrinsic to, or an integral part [of] horseback riding.” Id. at 1105. Two possible interpretations of this passage are that negligence is never an integral part of horseback riding, or that some negligence is an integral part, but not the negligent acts complained of in that case. The former interpretation would render the statute futile [*23] as a way to safeguard recreation providers against liability, so it is unlikely that the Court of Appeals intended that meaning. The latter interpretation is more plausible, but raises the difficult question of what types of negligence are inherent to a particular activity and which are not. In either case, a trial court or fact finder is confronted with the difficult task of determining whether negligence occurred in order to determine whether the defendant owed a duty.

In any case, this Court is bound to apply Sapone. Plaintiffs have submitted evidence that tends to show that the river, on the day of the river float trip, was running higher and faster so as to result in an activity with some greater risk to the participants. In addition, Plaintiffs submitted evidence suggesting that this stretch of river was generally believed to be a dangerous one. Rutter Depo. Ex. 1. Specifically, a National Park Service publication entitled “Floating the Snake River” states that the area from Deadman’s Bar to Moose Landing “is the most challenging stretch of river in the park and most accidents occur here. The river drops more steeply, with faster water than in other sections south of Pacific Creek. [*24] Complex braiding obscures the main channel and strong currents can sweep boaters into side channels blocked by logjams.” Id. This evidence is not uncontested, of course, but it is sufficient to preclude summary judgment on this issue. The Court finds that there is a genuine issue of material fact regarding whether colliding with the log jam was an inherent risk of the river float trip undertaken by the tour members on June 2, 2006.

Negligence

Tauck moved for summary judgment in its favor on Plaintiffs’ negligence claim. Tauck’s argument boils down to an assertion that it is essentially a travel agency, and therefore is not liable for any negligence committed by GTLC. Plaintiffs contend that Tauck is a common carrier, and therefore subject to a heightened duty of care. They also assert that Tauck assumed a duty to warn of dangerous conditions when it distributed a form entitled “Acknowledgment of Risk” on the way to the river.

As a general rule, a tour operator is not liable for injuries caused by the negligence of third parties over which the tour operator did not exercise ownership or control. E.g., Sova v. Apple Vacations, 984 F. Supp. 1136, 1140 (S.D. Ohio 1997).1 The general rule may not apply, however, in the face of contractual language to the [*25] contrary. In this case, Plaintiffs contend that Tauck’s promotional materials contained promises that Tauck would assume a certain duty. For example, they point to language in which Tauck states tour members will “enjoy VIP attention from our experienced Tauck Directors who are dedicated to making your trip the best it can be” and that “[o]nce you arrive at your Tauck Bridges destination, leave the day-to-day details to us–all you need to do is have fun with your family.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5-6. They compare this language to that relied upon by the court in Stevenson v. Four Winds Travel, Inc. to find that the plaintiff had a right to expect a warning of a slippery condition while on a tour. 462 F.2d 899, 906-07 (5th Cir. 1972).

1 The Wyoming Supreme Court has not yet addressed this question, but it would likely follow this general rule.

Stevenson, however, is distinguishable from the current case. First, the language in the promotional materials in Stevenson is considerably stronger than those distributed by Tauck. For example, the materials stated that guests would be “cared for by a carefully selected Four Winds Tour escort” and that the tour directors “know precisely what you will be seeing and doing every day.” Id. In contrast, Tauck’s materials state that trips “are enhanced by [*26] our experienced directors,” and that Tauck will “take care of all [arrangements] for you, so you can indulge in the joys of travel without any of the day-to-day hassles.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 5. To the extent that these vague statements mean anything at all, it falls far short of a promise to assume a duty. In addition, there is no indication in Stevenson that there was a separate contract. In this case, however, Tauck’s “Conditions of Tour”–relied upon by Plaintiffs in its argument that Connecticut law is applicable–contains a provision in which Tauck disclaims liability for “any Damages, or any problems concerning any . . . supplier providing tour services [or] programs, . . . including but not limited to . . . negligence by any . . . other supplier providing tour services [or] programs.” Plaintiffs’ Resp. to Motion for Summary Judgment on Recreation Safety Act, Ex. 1. Courts have relied on similar disclaimers to bar liability for acts of third parties that are beyond the control of the tour operator because the disclaimers are evidence that the operator did not intend to assume a guarantee of safety, even if the disclaimer is not itself [*27] contractually binding. E.g., Sova, 984 F. Supp. at 1139-40 (collecting illustrative cases). Accordingly, this Court finds that, as a matter of law, Tauck had no duty, either by virtue of its position as a tour operator or assumed through its promotional materials.

Plaintiffs next contend that Tauck is a common carrier pursuant to the common law and Article 10, Section 7 of the Wyoming Constitution. That provision states: “All corporations engaged in the transportation of persons, property, mineral oils, and minerals products, news or intelligence, including railroads, telegraphs, express companies, pipe lines and telephones, are declared to be common carriers.” Plaintiffs then rely upon section 314A of the Restatement (Second) of Torts, which states that a common carrier has a duty to its passengers to take reasonable action “to protect them against unreasonable risk of physical harm,” and to render aid if they are harmed. Tauck contends that it is not a common carrier because it does not actually transport tour members during the river floating trip.

Tauck’s position has merit, and there is authority for the proposition that a tour operator is not a common carrier. E.g., Stafford v. Intrav, Inc., 841 F. Supp. 284, 287 (E.D. Mo. 1993). The Court need not resolve the question of whether Tauck is a common carrier, however, because even if it is in general, it was not transporting [*28] tour members at the time of the raft collision. The undisputed evidence is that the tour members, during the rafting trip, were being transported by GTLC, not Tauck. In short, the tour members were no longer subject to Tauck’s custody or control, and therefore Tauck owed no duty. See Id. (tour operator had no duty to warn of dangerous condition on premises not under its control).

This leaves the question of whether distribution of “Acknowledgment of Risk” forms resulted in an imposition of a duty on Tauck. Plaintiffs cite section 324A of the Restatement (Second) of Torts, which states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The Wyoming Supreme Court adopted this provision as reflected in subsection (a) in Ellsworth Bros., Inc. v. Crook, 406 P.2d 520, 524 (Wyo. 1965). Relying [*29] on the Restatement, Plaintiffs claim that “by requiring its Tour Directors to get guests to sign GTLC’s Acknowledgment of Risk form well in advance of arriving at the Lodge, Tauck undertook the duty to inform guests about risks associated with the raft trip.” Plaintiffs’ Resp. to Motion for Summary Judgment on Negligence, 7.

This statement, however, assumes that by undertaking to distribute the “Acknowledgment of Risk” form, Tauck was undertaking the broader task of informing guests about risks associated with the raft trip. There is no evidence before the Court to support this assumption. The only evidence that Tauck undertook to do anything for GTLC is testimony that GTLC asked Tauck to present the form to those tour members who were to participate in the rafting trip. Rice Depo. 47.2 There is no testimony that suggests Tauck was asked, or agreed, to inform guests of all risks involved in the rafting trip.

2 There is some conflict in the record regarding precisely when the tour members were given the form, but that is not material for resolution of this issue.

The Court finds as a matter of law that Tauck did not owe a duty to the tour members to warn them of the conditions of the river or otherwise act to prevent their injuries. Tauck may not be found negligent on a theory of direct liability.

Joint Venture

The Court must next address Tauck’s [*30] contention that it may not be held vicariously liable for GTLC’s negligence because the two companies did not form a joint venture. Tauck argues that GTLC was simply a supplier, and that the two businesses did not jointly embark on a business venture. In Wyoming, a person alleging the existence of a joint venture has the burden to prove four elements:

(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Popejoy v. Steinle, 820 P.2d 545, 549 (Wyo. 1991) quoting Holliday v. Bannister, 741 P.2d 89, 93 n.1 (Wyo. 1987).

Considering the first element, that of an agreement, the Court finds that there is a genuine issue of material fact regarding whether Tauck and GTLC agreed to provide services. Plaintiffs have submitted a document entitled “Tour Operator Contract,” which governs the terms of the sale of room blocks and river float trips to Tauck. Plaintiff’s Resp. to Motion for Summary Judgment on Joint Venture, Ex. 5. Several witnesses, officials of Tauck, testified that they viewed GTLC as a supplier, not as a partner. Nevertheless, viewing [*31] the contract in the light most favorable to Plaintiffs, it is not unreasonable to characterize it as an agreement for the purposes of this joint venture analysis.

The Court also finds that a reasonable jury could find that Tauck and GTLC had a common purpose. This purpose was to sell tour members lodging and river float trips. Tauck’s purpose was somewhat broader, generally, because it sold lager tours of which the interaction with GTLC was a small part, but this does not remove the fact that GTLC and Tauck were united in purpose during this portion of the tour. Similarly, they both had a pecuniary interest in the enterprise. Tauck points out that GTLC received the same amount for its float tours whether its guests were members of a Tauck tour or individuals. But the arrangement nonetheless furthered GTLC’s financial goals by bringing significant numbers of guests to GTLC. Similarly, Tauck benefitted financially by featuring GTLC lodging and the float trip as part of its tour.

The Court does not find, however, that Tauck and GTLC had an equal right of control. Plaintiffs rely heavily on the fact that both business had the capability to cancel the float trip at their discretion, but that [*32] does not suggest an equal voice in the activity in question. For example, the evidence submitted to the Court indicates that the Tauck tour director brought the residents to the lodge and interacted with GTLC staff, but there is no indication that any Tauck official had the authority to direct any day-to-day activities. It had no input into the decision to hire Mr. Hobbs, the guide of Raft No. 2, or to direct the manner in which he conducted the rafting trip. Tauck could not have directed that the river guide take the group down a different part of the river, or terminated the guide’s employment. If GTLC had decided to terminate its river floating operations, Tauck would have been powerless to prevent it, aside from the scope of any service contract that was currently in place. Tauck and GTLC were two separate operations, and there is no evidence submitted to the Court that suggests otherwise. The Court finds, as a matter of law, that Tauck and GTLC did not have a joint venture.

The Court notes that, with no direct liability and no joint venture resulting in vicarious liability, Tauck is not liable for any claims of negligence.

Fraud

Plaintiffs have alleged that GTLC and Tauck committed [*33] fraud by enacting a scheme whereby the tour members were lured into taking a dangerous rafting trip as a result of GTLC and Tauck’s material misrepresentations regarding the level of danger. “To prove fraud, the plaintiff must show by clear and convincing evidence that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff suffered damages in relying upon the false representation.” Garrison v. CC Builders, Inc., 2008 WY 34, 179 P.3d 867, 877 (Wyo. 2008). The false representation must be made knowingly: “One cannot be guilty of fraudulently or intentionally concealing or misrepresenting facts of which he is not aware.” Meeker v. Lanham, 604 P.2d 556, 559 (Wyo. 1979). Plaintiffs’ fraud claim fails because they have failed to provide evidence from which a reasonable jury could find by clear and convincing evidence that Defendants knowingly made a false representation of a material fact.

Plaintiffs first cite statements made in Tauck’s travel brochure discussing the rafting trip. “[T]he record shows that Tauck’s 2006 Brochure described the Snake River as a ‘meandering float trip,’ when in actuality, the Plaintiffs’ [sic] ended up on a whitewater raft trip with Class IV rapids.”
[*34] Plaintiffs’ Resp. to Motion for Summary Judgment on Fraud Claim, 8. Plaintiffs also cite statements in Tauck’s promotional materials stating that its tour directors are “knowledgeable professionals, with a wealth of information,” and that Tauck “does it all for you,” and that tour members can “leave all day-to-day details” to Tauck. Id.

For the most part, these promotional statements are “mere puffery” E.g., Alpine Bank v. Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009). The one arguable exception is the description of the activity as a “meandering float trip,” which may be sufficiently definite that a sensible person may be justified in relying on it to some degree. Even in that case, however, there is no indication that Tauck was aware that the river floating trip would be anything other than as described.

The key problem with Plaintiffs’ case is that there is no indication that this particular stretch of the Snake River was inherently dangerous on the day of the collision. Instead, the evidence, viewed in a light most favorable to Plaintiffs, indicates that the guide of the raft that collided with the log jam took the raft into an unsafe channel. For example, the deposition of Wayne Johnson, one of the river guides on June 2, 2006, indicates [*35] that he viewed the “Funnelcake” channel as dangerous on that date. Johnson Depo. 184. Mr. Reed Finlay, a river guide with a different company, testified at some length about the “Funnelcake” channel, specifically that it was dangerous on the date of the collision. Finlay Depo. 126-32. Indeed, it is undisputed that the float trip on the day of the collision was peaceful and uneventful until Raft No. 2 entered the channel and struck the log jam. J. Wilson Depo. 76-77; R. Rizas Depo. 102, 209, 219. In short, there is no indication that Tauck made a misrepresentation when the rafting trip was marketed as a “meandering float trip.”

Plaintiffs also rely on several statements made by employees of Tauck and GTLC before the raft trip. First, Mr. Wilson saw saw people white water rafting while on the bus trip into Jackson on June 1, 2006. When the he asked the tour director, Mr. Rice, if that was what their rafting trip would be like, Mr. Rice replied that the rafting trip would be a “leisurely, scenic float down the Snake River,” and not to worry. Mr. Rice also stated that Tauck had “never lost anybody.” L. Wilson Depo. 61-62. Second, while the groups were in the GTLC vans on the way to the [*36] river, Ms. Elizabeth Rizas asked the van driver about the safety of the float trip. The van driver responded by telling her that she was more likely to be in an accident in the van traveling to the river than on the float trip. J. Wilson Depo 39-40. There is also some evidence that the van driver also stated that they had “never lost anybody yet.” Id. 60.

Again, there is no evidence indicating that these statements are deliberately false. Much like Tauck’s advertising, there was no reason for Tauck or GTLC to believe that the rafting trip would be anything other than a leisurely, scenic float trip. Although Plaintiffs repeatedly rely on the fact that the river was flowing stronger and faster than usual because of the spring thaw, there is no evidence suggesting that this change in conditions precluded GTLC from being able to provide the safe and relaxing experience that the tour members were expecting. The additional fact that the float trip resulted in a devastating collision instead is not relevant when considering what Tauck and GTLC knew at the time they made the statements at issue.

Lastly, Plaintiffs contend that Defendants committed fraud by failing to inform them of the full nature [*37] of the risks on this particular float trips. The Court finds that any failure to inform the guest of these dangers is not actionable as a matter of law. First, there can be no fraud because there is no statement involved. The Court also relies on the Wyoming Supreme Court’s explicit refusal to adopt the tort of nondisclosure in Pittard v. Great Lakes Aviation, 2007 WY 64, 156 P.3d 964, 976 (Wyo. 2007). Plaintiffs have failed to establish the existence of a genuine issue of material fact that would preclude summary judgment in Defendants’ favor on the fraud issue.

Punitive Damages

GTLC has moved to dismiss Plaintiffs’ claim for punitive damages.3 Plaintiffs’ response is similar to their fraud argument, that is, that GTLC deliberately misrepresented the float trip as safe and leisurely.

3 Tauck has also moved for summary judgment in its favor on the punitive damages issue. The Court, however, has already determined that Tauck is not liable, either directly or vicariously. Accordingly, the Court’s discussion addresses only Plaintiffs’ claim as it applies to GTLC.

The Wyoming Supreme Court has set out the following standard regarding punitive damages:

We have explained that punitive damages “are to be awarded only for conduct involving some element of outrage, similar to that usually found in crime. . . . We have approved punitive damages in circumstances involving outrageous conduct, such as intentional torts, torts involving malice and torts involving willful and wanton misconduct.” Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo. 1986). Willful and wanton misconduct is the intentional doing, [*38] or failing to do, an act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know that such conduct would, in a high degree of probability, result in harm to another. Mayflower Rest. Co. v. Griego, 741 P.2d 1106, 1115 (Wyo. 1987). “The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo. 1986) (internal citation omitted).

Cramer v. Powder R. Coal Co., 2009 WY 45, 204 P.3d 974, 979-80 (Wyo. 2009).

Plaintiffs reason as follows:

Defendants here should have communicated the true Snake River conditions to the Plaintiffs rather than misrepresent the conditions and intentionally take the guests who had signed up for a scenic float trip into something knowingly quite different. Defendant’s failure to communicate the details indicates “reckless disregard of the consequences, and under such circumstances and conditions that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability, result in substantial harm to another.” Danculovich [v. Brown], 593 P.2d [187,] 191.

Plaintiffs’ Response to Motion for Summary Judgment on Punitive Damages [*39]
, 11.

Plaintiffs’ contention that GTLC was aware that the float trip was materially more dangerous than previously represented to the tour members is not, as the Court has discussed, reflected in the record. Although it is undisputed that the level and flow of water was increased, and that this increase may heighten the risk of log jams or hide obstructions in the river, there is no evidence suggesting that the character of the river was altered to such an extent that it was willfully reckless to take passengers on the float trip.

The facts of this case are in stark contrast to those cases relied on by the Plaintiffs in which the Wyoming Supreme Court overturned trial courts’ grants of summary judgment in defendants’ favor on punitive damages. For example, the conduct alleged in Danculovich was drunk driving and speeding resulting in the driver losing control of the vehicle and killing the decedent. 593 P.2d at 190. The evidence in that case indicated that the defendant, who was driving the vehicle, had a blood alcohol content of 0.12%. Id. The court described the evidence of speeding as follows:

Radar clock of vehicle at 56 m.p.h. was made at north edge of business district. A witness estimated speed [*40] at 75 m.p.h. at city limits. Another witness estimated speed at 85 m.p.h. when vehicle passed him at point about .4 of mile before place of accident. Accident reconstruction expert estimated speed at place of accident to be minimum of 75 m.p.h. The speed limit within the city limits was 30 m.p.h. and beyond the city limits, 55 m.p.h.

Id. n.3. In Errington v. Zolessi, a treating physician conducted several cystograms of a patient following a laparoscopically assisted vaginal hysterectomy. 9 P.3d 966, 968 (Wyo. 2000). The cystograms initially indicated the presence of a fistula, and later confirmed it, but the doctor told the patient that she was healing normally, albeit slowly. Id. The Wyoming Supreme Court held that there was sufficient evidence that would allow a reasonable jury to find that the physician acted with reckless disregard for the patient’s safety. In either case, it is apparent that simply failing to advise the tour group members of the increased flow of the river does not rise to the level of reckless and willful misconduct. There is no question that the consequences of any negligence committed were devastating. But this Court must evaluate the question of outrageous conduct based on what was known [*41] at the time of the allegedly negligent act, not looking back at events with the benefit of hindsight. This is not to say that this conduct may not constitute simple negligence, but it does not warrant punitive damages.

IT IS ORDERED that Tauck’s Motion for Summary Judgment on Wyoming Recreational Safety Act, Docket No. 87, is DENIED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim of Negligence, Docket No. 81, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Joint Venture, Docket No. 84, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claims of Fraud, Docket No. 90, is GRANTED.

IT IS FURTHER ORDERED that Tauck’s Motion for Summary Judgment on Plaintiffs’ Claim for Punitive and Exemplary Damages, Docket No. 93, is GRANTED.

IT IS FURTHER ORDERED that Grant Teton Lodge Company’s Motion for Summary Judgment on Plaintiffs’ Claims, Docket No. 96, is granted in part and denied in part. Specifically, the motion is DENIED as it relates to application of the Wyoming Recreation Safety Act, and is in all other respects GRANTED.

Dated this day of October, 2009.

/s/ Alan B. [*42] Johnson

ALAN B. JOHNSON

UNITED STATES DISTRICT JUDGE


McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

McJunkin v. James Yeager d/b/a Jim Yeager Outfitters, 2018 U.S. Dist. LEXIS 169321

Charles P. Mcjunkin, deceased, by and through his executor and personal representative, Rhett Mcjunkin, and Rhett Mcjunkin, executor and personal representative, on behalf of the heirs of Charles P. Mcjunkin, Plaintiffs, vs. James Yeager d/b/a Jim Yeager Outfitters, Defendant.

CV 17-12-BLG-TJC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BILLINGS DIVISION

2018 U.S. Dist. LEXIS 169321

September 28, 2018, Decided

September 28, 2018, Filed

COUNSEL: [*1] For Charles P. McJunkin, deceased, by and through his executor and personal representative, Rhett McJunkin, Rhett McJunkin, executor and personal representative, on behalf of the heirs of Charles P. McJunkin, Plaintiffs: Philip L. McGrady, LEAD ATTORNEY, McGRADY LAW, Whitefish, MT.

For James Yeager, doing business as, Jim Yeager Outfitters, Defendant: Ross Daniel Tillman, LEAD ATTORNEY, John M. Newman, BOONE KARLBERG, P.C., Missoula, MT.

JUDGES: TIMOTHY J. CAVAN, United States Magistrate Judge.

OPINION BY: TIMOTHY J. CAVAN

OPINION

ORDER

Rhett McJunkin, as personal representative of the estate of Charles P. McJunkin, and on behalf of the heirs of Charles P. McJunkin (“Plaintiffs”), brings this action against Defendant James Yeager, doing business as Jim Yeager Outfitters (“Yeager” or “Defendant”), in relation to a fatal boating accident that occurred on the Stillwater River near Columbus, Montana. Plaintiffs assert claims for negligence, negligent infliction of emotional distress, and loss of consortium. (Doc. 1.)

Presently before the Court are Plaintiffs’ Motion to Amend the Complaint (Doc. 23), Plaintiffs’ Motion for Partial Summary Judgment Regarding the Constitutionality of the Montana Recreation Responsibility Act [*2] (Doc. 28), and Defendant’s Motion for Summary Judgment (Doc. 31). The motions are fully briefed and ripe for the Court’s review.

Having considered the parties’ submissions, the Court finds Plaintiffs’ Motion to Amend should be DENIED, Plaintiff’s Motion for Partial Summary Judgment should be DENIED, and Defendants’ Motion for Summary Judgment should be GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND1

1 The background facts set forth here are relevant to the Court’s determination of the pending motions for summary judgment and are taken from the parties’ submissions and are undisputed except where indicated.

Yeager is a professional fishing guide and outfitter. On July 17, 2014, Yeager took a paying client, Charles P. McJunkin (“McJunkin”), on a guided fishing trip in a raft on the Stillwater River. As Yeager was guiding and operating the raft, McJunkin fell into the river and drowned. McJunkin was 81 years old at the time of his death.

McJunkin had gone on similar guided fishing trips with Yeager for approximately 20 years. In fact, in the week preceding the July 17, 2014 accident, McJunkin had floated and fished the Stillwater River three times with Yeager. On each occasion, Yeager put-in at the Johnson Bridge Fishing Access, and used the Swinging Bridge Fishing Access Site for a take-out at the end of the day. The Swinging Bridge take-out is approximately one-quarter mile above a set [*3] of rapids known as the Beartooth Drop. Yeager had never floated through the Beartooth Drop with McJunkin.

On the date of the accident, Yeager was guiding McJunkin and his partner, Julia Garner (“Garner”). The plan was to again float from Johnson Bridge to the Swinging Bridge take-out. The river conditions encountered by Yeager that day were characteristic of, and consistent with conditions he previously encountered on that stretch of the river. Yeager approached the Swinging Bridge take-out in the same manner as he had on the three earlier days of fishing. As he approached the take-out, the raft crossed an underwater shelf of rocks. When the rear of the raft passed the shelf, the boat rocked and McJunkin fell into the water. Although the raft was equipped with personal floatation devices (PFDs), McJunkin was not wearing one at the time.

McJunkin swam toward the raft, and Yeager attempted to position the raft so that McJunkin could grab ahold of the side. During this process, the party floated past the Swinging Bridge take-out. To complicate matters further, as Yeager attempted to pull McJunkin into the raft, Garner fell into the water. The parties dispute what caused Garner’s fall. Plaintiffs [*4] contend Yeager accidentally hit her with an oar. Yeager indicated he didn’t know what caused her to fall in, testifying “I don’t know if I hit a rock or a wave or whatever, Julie went in.” Garner yelled to Yeager that she could not swim. Yeager made the split-second decision to let go of McJunkin and attempt to save Garner, fearing she would drown otherwise. Yeager was able to pull her back into the raft as they entered the Beartooth Drop. Meanwhile, McJunkin lost contact with Yeager and the raft and floated through the rapid. He ultimately did not survive.

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

[HN1] Summary judgment is appropriate where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

[HN2] The party seeking summary judgment always bears the initial burden of establishing the absence of a genuine [*5] issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party’s case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-60, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

[HN3] If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party must “go beyond the pleadings and by ‘the depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). The opposing party cannot defeat summary judgment merely by demonstrating “that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of the [*6] nonmoving party’s position is not sufficient.”) (citing Anderson, 477 U.S. at 252).

III. DISCUSSION

A. Cross-Motions for Summary Judgment Related to the Montana Recreation Responsibility Act

Plaintiffs assert Yeager’s negligence caused McJunkin’s death. Yeager contends Plaintiffs’ negligence claim fails as a matter of law because it is barred by Montana’s Recreation Responsibility Act (the “MRRA”), Mont. Code Ann. § 27-1-751, et seq. Thus, Yeager argues summary judgment on the negligence claim is warranted.

Plaintiffs counter that the MRRA is unconstitutionally vague, and violates the constitutional guarantee of equal protection and right to full legal redress. Plaintiffs, therefore, move for partial summary judgment declaring the MRRA unconstitutional. Plaintiffs further assert that even if the MRRA is constitutional, there are genuine issues of material fact which preclude summary judgment.

1. Yeager’s Motion for Summary Judgment under the MRRA

[HN4] The MRRA limits the liability of recreational opportunity providers for injuries resulting from the inherent risks of sports or recreational opportunities.2 Specifically, the MRRA provides in relevant part:

(1) A person who participates in any sport or recreational opportunity assumes the inherent risks in [*7] that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for all injury or death to the person and for all damage to the person’s property that result from the inherent risks in that sport or recreational opportunity.

(2) A provider is not required to eliminate, alter, or control the inherent risks within the particular sport or recreational opportunity that is provided.

(3)(a) Sections 27-1-751 through 27-1-754 do not preclude an action based on the negligence of the provider if the injury, death, or damage is not the result of an inherent risk of the sport or recreational opportunity.

Mont. Code. Ann. § 27-1-753.

2 “Sport or recreational opportunity” is defined broadly in the MRRA as “any sporting activity, whether undertaken with or without permission, include but not limited to baseball, softball, football, soccer, basketball, bicycling, hiking, swimming, boating, hockey, dude ranching, nordic or alpine skiing, snowboarding, snow sliding, mountain climbing, river floating, whitewater rafting, canoeing, kayaking, target shooting, hunting, fishing, backcountry trips, horseback riding and other equine activity, snowmobiling, off-highway vehicle use, agritourism, an on-farm educational opportunity, and any similar recreational activity.” Mont. Code. Ann. § 27-1-752(4).

The MRRA defines “Inherent risks” as:

[T]hose dangers or conditions that are characteristic of, intrinsic to, or an integral part of any sport or recreational activity and that cannot be prevented by the use of reasonable care.

Mont. Code Ann. § 27-1-752(2).

[HN5] When interpreting a statute, a court is required to look to the plain meaning of the words. Clarke v. Massey, 271 Mont. 412, 897 P.2d 1085, 1088 (1995). A court will only resort to the legislative history of a statute if the legislative intent cannot be determined from the statute’s plain wording. Id. “[T]he office of judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert [*8] what has been omitted or to omit what has been inserted.” Mont. Code Ann. § 1-2-101.

Yeager maintains that the statute has a simple, straight-forward application to the facts of this case. He argues McJunkin’s death was caused by drowning; falling out of a boat and drowning is an inherent risk of fishing from a raft; therefore, Plaintiffs’ negligence claim is barred under the MRRA as a matter of law. In short, Yeager asserts because the injury in this case involved drowning while fishing from a raft, the MRRA precludes Plaintiffs’ claim. (Doc. 32 at 15.)

Yeager reads the MRRA much too broadly. Construing the statute in this fashion would immunize providers of recreational activities from their own negligence. The Court finds that such a construction would be contrary to the statute’s plain words, the legislative intent in enacting the legislation, and would likely render the MRRA unconstitutional.

[HN6] Under the plain language of the MRRA, a risk must satisfy two requirements to constitute an “inherent risk” and thus fall within the Act’s protection. There must be (1) a danger or condition that is characteristic of, or intrinsic to the activity, and (2) the danger or condition must be one that cannot be prevented [*9] by the use of reasonable care. Mont. Code Ann. § 27-1-752(2). Therefore, the MRRA does not insulate a provider from all risks which are characteristic of, or intrinsic to the activity. It only provides protection for those risks which cannot be prevented with the use of reasonable care. In order to make this determination, it is necessary to look at the facts and circumstances of each case and the specific risk or condition involved.

Wyoming has a similar “Recreation Safety Act.” Wyo. Stat. Ann. §§ 1-1-121 through 1-1-123. Like the MRRA, the Wyoming Act provides that “[a]ny person who takes part in any sport or recreational opportunity assumes the inherent risk in that sport or recreational opportunity, whether those risks are known or unknown . . . .” Wyo. Stat. Ann. § 1-1-123(a). It also similarly states that a provider of the “recreational opportunity is not required to eliminate, alter, or control the inherent risks” of the activity. Wyo. Stat. Ann. § 1-1-123(b). One critical difference between the two acts, however, is the definition of an inherent risk. The MRRA and the Wyoming Act both define inherent risk to mean “those dangers or conditions which are characteristic of, intrinsic to, or an integral part” of the activity. Wyo. Stat. Ann. § 1-1-122(a)(i). But the Wyoming Act’s definition does not also include the MRRA’s requirement [*10] that the risk “cannot be prevented by the use of reasonable care.”

Nevertheless, the construction of the Wyoming Act is instructive as far as the similarities go. Courts which have construed and applied the Wyoming statute have rejected the broad, general interpretation advanced by Yeager in this case. To determine what risks are inherent, decisions under the Wyoming Act have consistently required that a court “go beyond a broad characterization and inquire into the specific circumstances of both [the plaintiff’s] actions and those of the recreation provider.” Creel v. L & L, Inc., 2012 WY 124, 287 P.3d 729, 736 (Wyo. 2012).

In Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000), for example, the plaintiff was injured during a guided horseback trail ride. The injury occurred when the plaintiff’s saddle slipped around to the belly of the horse, causing the plaintiff to fall to the ground. The defendant moved for summary judgment under the Wyoming Recreation Safety Act, arguing that a slipping saddle is an inherent risk of horseback riding. In determining the application of the Act, the Tenth Circuit made clear that the risk in question must be not be evaluated broadly or generally, but in the context of the specific factual setting presented.

Horseback riding undoubtedly carries some inherent risk [*11] that the rider will fall off the horse and get injured. A horse could stumble on an uneven path, or rear, or simply begin to gallop for no apparent reason. All of these risks clearly would qualify as inherent risks of horseback riding. Simply because some risks are inherent in horseback riding, however, does not mean that all risks of falling from a horse are necessarily inherent; instead, it is necessary to look factually at the specific risk to which the rider was exposed. When attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the rider was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record. See Madsen, 31 F.Supp.2d at 1328 (“The Court believes that one must look to the specific facts of a case to see whether there is a duty, and not simply look to the abstract character of the risk.”).

Cooperman, 214 F.3d at 1167.

The same evaluation must be conducted under the MRRA. It is not enough to find that falling out of a boat and drowning is a general risk of fishing from a raft; therefore, drowning is an inherent risk in fishing. Although there may be circumstances where the risk of drowning [*12] cannot be prevented with the use of reasonable care, it is undoubtedly true the risk may be prevented in many other circumstances.

Therefore, each case must be examined in light of the specific factual context of the case to determine whether the specific risk involved could have been prevented using reasonable care. As the Wyoming Supreme Court points out, “[s]ome risks may occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided. Thus, atypical or uncharacteristic risks can arise even in those specific sports the Wyoming legislature clearly intended to exempt from liability for inherent risks.” Dunbar v. Jackson Hole Mtn. Resort Corp., 392 F.3d 1145, 1148–49 (10th Cir.2004).

In addition, Yeager’s broad interpretation of the MRRA would effectively immunize providers of a recreational opportunity from their own negligence. If providers were protected from all fishing-related drownings under the MRRA, they would be relieved of liability where the death was caused by negligence, or even by willful or wanton misconduct. For example, it would apply not only to situations where a participant falls out of a raft and drowns without negligent conduct by the provider; it would [*13] also apply where the provider negligently causes a raft to collide with a bridge abutment or other known obstruction in the river.

Such an application would be contrary to the legislative intent of the MRRA, which expressly provides that the Act does not “preclude an action based on the negligence of the provider. . . .” Mont. Code Ann. § 27-1-753. As recognized under the Wyoming Act, the “intent behind the Recreation Safety Act was not to preclude parties from suing for a provider’s negligence, it was merely to stop people from suing providers for those risks that were inherent to a sport.” Madsen v. Wyoming River Trips, 31 F.Supp.2d 1321, 1328 (D. Wyo. 1999).

Finally, construing the MRRA as Yeager urges would likely render the Act unconstitutional. [HN7] Statutes should be construed “to avoid an unconstitutional interpretation if possible.” Hernandez v. Bd. of Cty. Comm’rs, 2008 MT 251, 345 Mont. 1, 189 P.3d 638, 642 (Mont. 2008). The Montana Supreme Court found a prior version of Montana’s Skier Responsibility Act unconstitutional because it prohibited a skier “from obtaining legal recourse against an operator even if the injury is proximately caused by the negligent or even intentional actions of the operator.”3
Brewer v. Ski-Lift, Inc., 234 Mont. 109, 762 P.2d 226, 230 (Mont. 1988). The Court found that although the state had a legitimate interest in protecting the economic vitality of the ski industry, there was no rational relationship [*14] between that purpose and requiring that skiers assume all risks for injuries regardless of the presence of negligence by the ski area operator. Id. at 230. See also, Oberson v. U.S. Dept. of Ag., Forest Serv., 2007 MT 293, 339 Mont. 519, 171 P.3d 715 (Mont. 2007) (snowmobile liability statute’s gross negligence standard, which relieved snowmobile operators from their negligent conduct, violated equal protection).

3 The statute at issue in Brewer barred recovery from a ski area operator if the skier suffered an injury resulting “from participating in the sport of skiing.” Brewer, 762 P.2d at 229 (citing Mont. Code Ann. § 23-2-736(1)).

The purpose of the MRRA is substantially the same as the skier and snowmobile liability statutes — protection of providers of recreational activities from liability for risks over which the provider has no control. Under Yeager’s interpretation of the MRRA, providers of float fly fishing would be immune from liability for drownings, even when caused by the provider’s own negligence. Under Brewer and Oberson, such a construction would violate Plaintiffs’ rights to equal protection, due process, and access to the courts.

Therefore, whether the MRRA protects a provider of recreational opportunities from certain risks cannot be determined by looking at the broad, abstract character of the risk. Instead, the specific facts and circumstances in each case must be examined to determine whether the risk involved can be prevented by the use of reasonable care. If so, the MRRA does not [*15] shield the provider from liability.

That being established, the determination of whether McJunkin’s drowning resulted from an inherent risk of floating and fly fishing is not appropriate for summary judgment. While there may be cases where there are no genuine issue of material fact, and the issue may be appropriately decided as a matter of law, [HN8] the determination of whether a risk is an inherent risk is generally a factual determination for the jury to decide. See e.g. Mead v. M.S.B., Inc., 264 Mont. 465, 872 P.2d 782, 788-89 (Mont. 1994) (holding whether an inherent risk had been established under the Skier Responsibility Act was a question of fact to be resolved by the trier of fact); Cooperman, 214 F.3d at 1169 (noting the question of what is an inherent risk is normally a question of fact for the jury); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995) (“when genuine issues of material fact exist, it is proper to present the issue to the jury of whether a risk is inherent to a particular activity.”).4

4 At the time the Halpern case was decided, the Wyoming Act’s definition of inherent risk was similar to the MRRA. It was defined as “any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled.” Halpern, 890 P.2d at 564. The highlighted portion of the definition was subsequently removed by the Wyoming legislature.

Here, there are genuine issues of material fact regarding whether the risk encountered by McJunkin was an inherent risk to the sport of float fishing, or whether Yeager could have prevented the risk using reasonable care. Yeager’s expert opined that drowning [*16] is an inherent risk of floating in a raft on a river, and McJunkin’s death was a result of that inherent risk. But Plaintiffs’ expert states the risk of drowning can be prevented by the use of reasonable care. Plaintiffs’ expert also opined that Yeager increased the risks to McJunkin, and failed to adhere to industry standards by not taking basic safety precautions and not having a plan or equipment to retrieve McJunkin from the water.

Accordingly, the Court finds there are genuine issues of material fact regarding whether the risks encountered by McJunkin could have been prevented by the use of reasonable care.

As such, Yeager’s Motion for Summary Judgment is DENIED as to Count I of the Complaint.

2. Plaintiffs’ Motion for Summary Judgment

McJunkin challenges the constitutionality of the MRRA on due process and equal protection grounds. [HN9] Statutes are presumed to be constitutional, and “the party challenging the constitutionality of a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt.” Globe v. Montana State Fund, 2014 MT 99, 374 Mont. 453, 325 P.3d 1211, 1216 (Mont. 2014). “‘The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action . . . .'” Davis v. Union Pac. R. Co., 282 Mont. 233, 937 P.2d 27, 31 (1997) (quoting Fallon County v. State 231 Mont. 443, 753 P.2d 338, 340 (Mont. 1988). “[E]very [*17] possible presumption must be indulged in favor of the constitutionality of the Act.” Id. Thus, courts “will construe a statute to further, rather than to frustrate, the Legislature’s intent according to the plain meaning of the statute’s language.” In re Custody and Parental Rights of D.S., 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). See also Hernandez, 189 P.3d at 642 (stating it is the court’s duty “to avoid an unconstitutional interpretation if possible”).

a. The MRRA is not Unconstitutionally Vague

Plaintiffs argue the MRRA is unconstitutionally vague on its face, and as applied. Plaintiffs contend the MRRA purports to limit liability for injuries that result from inherent risks, but it does not define “inherent risk” in any clear manner. Thus, Plaintiffs argue there is no fair way to apply the statute because it is unclear what constitutes an “inherent risk.”

[HN10] The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive less exacting vagueness scrutiny. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-99, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). The United States Supreme Court has held “[t]o find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967). The Montana Supreme Court has similarly declared that a statute is unconstitutionally [*18] vague on its face only if it is shown “that the statute is vague ‘in the sense that no standard of conduct is specified at all.'” In re Custody, 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, 1243 (Mont. 2005). “[P]erfect clarity and precise guidance are not required.” Id. A statute is not vague “simply because it can be dissected or subject to different interpretations.” Montana Media, Inc. v. Flathead Cty., 2003 MT 23, 314 Mont. 121, 63 P.3d 1129, 1140 (Mont. 2003).

Here, the Court finds the MRRA is not unconstitutionally vague on its face. Section 27-1-752(2) plainly provides a standard for assessing what constitutes an “inherent risk.” The standard is established with common, readily-understood terms, and it incorporates the familiar negligence standard of reasonable care. Mont. Code Ann. § 27-1-752(2).

Further, contrary to Plaintiffs’ argument, the fact the MRRA does not specifically enumerate the risks inherent in each of the 30 recreational activities listed in the statute does not make the Act unconstitutional. [HN11] The Montana Supreme Court has recognized that even if a term in a statute is not exhaustively defined, and allows the court some discretion in determining whether the evidence presented satisfies the statute, the statute will not be rendered unconstitutionally vague. See In re Custody, 122 P.3d at 1243 (holding that although § 41-3-423(2)(a) did not contain an exhaustive list of conduct that constitutes the term “aggravated circumstances,” [*19] the statute was not void for vagueness). Moreover, even the more specific recreational liability statutes that Plaintiffs uses for comparison, provide non-exclusive lists of inherent risks. See e.g. Mont. Code Ann. § 23-2-702(2) (“‘Inherent dangers and risks of skiing’ means those dangers or conditions that are part of the sport of skiing, including: . . .”); § 23-2-822(2) (“Risks inherent in the sport of off-highway vehicle operation include . . .”); § 27-1-726(7) (“‘Risks inherent in equine activities’ means dangers or conditions that are an integral part of equine activities, including but not limited to: . . .”).

The Court further finds the MRRA is not unconstitutionally vague as applied. A person of common intelligence can understand the risks associated with river sports or activities. There is no indication McJunkin would not have been able to appreciate such risks, including the potential risk involved in floating and fishing. Indeed, in their depositions Plaintiffs were able to articulate risks associated with floating on a river, such as falling out of the boat and drowning. Therefore, McJunkin could have understood that the MRRA may limit Yeager’s liability for accidents on the river.

Accordingly, the Court finds the MRRA is not [*20] void for vagueness.

b. The MRRA Does Not Violate the Constitutional Guarantee of Equal Protection

Plaintiffs also argue the MRRA violates the constitutional guarantee of equal protection in two ways. First, Plaintiffs assert the Act eliminates any theory of negligence on the part of recreational providers, essentially excusing them from the consequences of their own negligence. Second, Plaintiffs argue the MRRA arbitrarily treats certain groups of recreationalists differently. Plaintiffs assert that participants in activities covered by the MRRA are treated differently from those participating in activities covered under other activity-specific recreation statutes because the MRRA is vague, whereas the other statutes are not. Plaintiffs further assert the MRRA treats recreationists covered by the Act differently because the MRRA attempts to resurrect the “secondary” assumption of risk defense, and inserts a “primary” assumption of risk defense.

i. The MRRA Does not Eliminate All Theories of Negligence

As discussed above, although a provider is not liable for, or required to eliminate, alter, or control inherent risks under the MRRA, the provider still owes a duty of care for risks that [*21] can be prevented by the use of reasonable care. Thus, the Court finds the MRRA continues to permit negligence claims against a provider if the risk could have been prevented by the use of reasonable care. Thus, the MRRA does not violate Plaintiffs’ equal protection rights by immunizing providers from their own negligence.

ii. The MRRA Does Not Arbitrarily Treat Groups of Recreationists Differently

The MRRA is drawn broadly and defines “sport or recreational opportunity” by reference to a non-exhaustive list of 30 activities. Mont. Code. Ann. § 27-1-752(4). Some of the listed activities are also covered by their own activity-specific recreation liability statutes, such as skiing, snowmobiling and off-road vehicle use. Id.; §§ 23-2-651, et seq.; 23-2-702, et seq.; 23-2-822. Therefore, the MRRA goes on to exclude those activities from its scope. Mont. Code Ann § 27-1-754 (stating the MRRA does “not apply to duties, responsibilities, liability, or immunity related to” activities that are already subject to an activity-specific recreational statute).

Plaintiffs assert that this statutory scheme causes different groups of recreationists to be treated differently. Specifically, Plaintiffs assert the recreationists who fall under the MRRA are disadvantaged in several [*22] respects.

First, Plaintiffs argue the MRRA’s alleged vagueness only affects the subset of recreationists who participate in activities covered by the Act. Whereas, recreationists engaging in other sports, such as skiing or snowmobiling, have specific notice of their rights and the provider’s responsibilities. The Court has determined, however, that the MRRA is not unconstitutionally vague. Further, as noted above, even the activity-specific recreation statutes that specifically identify certain inherent risks do so in a non-exhaustive fashion. Thus, there is no significant difference in treatment between the recreationists who fall under the MRRA, and those who fall under other recreational statutes with respect to notice.

Next, Plaintiffs assert the MRRA departs from other recreational statutes by attempting to revive the “secondary” assumption of risk defense and by suggesting a “primary” assumption of risk defense. Historically, Montana has not used the terms “primary” and “secondary” assumption of risk. Nevertheless, legal commentators have explained [HN12] “primary” assumption of risk refers to the concept of duty, and “secondary” assumption of risk refers to contributory negligence.
[*23] See Dan B. Dobbs, et al., Dobbs’ Law of Torts § 238 (2d ed. 2018) (“[T]he term ‘primary assumption of risk’ is used to indicate the no-duty or no-breach conception and its attendant complete-bar effect; and the term ‘secondary assumption of risk’ is used to indicate the contributory negligence conception.”); 65A C.J.S. Negligence § 398 (2018) (“Primary assumption of risk limits the duty which a person owes to another. Secondary assumption of risk, on the other hand, which is a type of contributory negligence and is an affirmative defense, may be raised by the defendant after the plaintiff has met the burden of showing that the defendant breached a legal duty owed to the plaintiff.”); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, 480-81 (5th Ed. 1984) (stating “primary” assumption of risk “is really a principle of no duty,” and explaining that under the duty perspective, “the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation . . . the legal result is that the defendant is simply relieved of the duty which would otherwise exist.”).

With regard to [*24] “secondary” assumption of risk, Plaintiffs assert the MRRA, “unlike any other recreation act in Montana,” resurrects the “secondary” assumption of risk defense, without articulating any specific inherent risks the participant would be assuming. (Doc. 29 at 15.) As Yeager points out, however, the MRRA is in fact similar to the other recreation statutes in that they also provide that the participant assumes the risks inherent in the particular activity. See e.g. Mont. Code Ann. § 23-2-736(4) (“A skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing.”); § 23-2-822 (1) (“An off-highway vehicle operator shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of off-highway vehicle use. . . .”); 23-2-654(3) (“A snowmobiler shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from risks inherent in the sport of snowmobiling.”). Further, as discussed in regard to Plaintiff’s vagueness challenge, the MRRA does not fail to put participants on notice of the inherent [*25] risks they are assuming. As such, recreationists participating in activities that fall under the MRRA are not on significantly different legal footing than participants in other recreational activities. Finally, Plaintiffs contend the MRRA’s suggestion of a “primary” assumption of risk defense amounts to an end-run around comparative negligence. As used here, the assumption of risk terminology in the MRRA refers to a principle of no duty. In Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), the Wyoming Supreme Court found the assumption of risk language in the Wyoming Recreation Safety Act, “was intended to limit the duty to which a provider owes to a participant.” The Court explained that because primary assumption of risk was only intended to limit the provider’s duty, it did not affect the comparative negligence scheme. Id. Likewise, here, the Court finds the assumption of risk language in the MRRA affects only the provider’s duty. It does not revive contributory negligence or undermine Montana’s comparative negligence law. Moreover, as noted, the other activity-specific recreation statutes contain similar assumption of risk language. Thus, recreationists are treated the same under both the MRRA and other activity-specific recreation [*26] statutes, and there is no violation of equal protection.

c. The MRRA Does Not Unconstitutionally Interfere With the Right to Trial by Jury

Finally, Plaintiffs argue the MRRA infringes upon the province of the jury by injecting questions of ultimate fact into preliminary legal questions. As discussed above, however, whether McJunkin’s death was the result of an inherent risk of float fly fishing, and whether it could have been prevented by the use of reasonable care, are jury questions. Thus, the Court finds the MRRA does not unconstitutionally interfere with Plaintiffs’ fundamental right to trial by jury.

B. Yeager’s Motion for Summary Judgment on Plaintiffs’ Negligent Infliction of Emotional Distress Claim

Yeager contends Plaintiffs’ claim for negligent infliction of emotional distress (“NEID”) fails as a matter of law because there is insufficient evidence for a jury to find Plaintiffs suffered serious or severe emotional distress.5 The Court agrees.

5 Yeager also asserts Plaintiffs’ NIED claim fails because there is no actionable predicate act of negligence since the MRRA bars Plaintiffs’ negligence claim. As discussed, however, the Court has found there are disputed issues of material fact regarding Plaintiff’s negligence claim. Accordingly, Yeager’s argument fails in this regard.

[HN13] Under Montana law, an independent cause of action for NIED arises “under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant’s negligent act or omission.” Sacco v. High Country Ind. Press, Inc., 271 Mont. 209, 896 P.2d 411, 426 (Mont. 1995). [*27] “To constitute ‘serious’ or ‘severe,’ the emotional distress must be ‘so severe no reasonable person could be expected to endure it.'” Feller v. First Interstate Bancsystem, Inc., 2013 MT 90, 369 Mont. 444, 299 P.3d 338, 344 (Mont. 2013). The question of whether the threshold level of emotional distress can be found is for the Court to determine. Sacco, 896 P.2d at 425 (“It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”) (quoting Restatement (Second) of Torts, § 46, comment j at 78).

In Feller, the Montana Supreme Court considered [HN14] several factors in determining whether there is sufficient evidence of severe emotional distress, including: (1) whether the plaintiff had any physical manifestations of grief; (2) whether counseling was sought or recommended; (3) whether the plaintiff took medication or the use of medication dramatically increased; (4) whether the plaintiff had continuous nights of sleeplessness or days without appetite; (5) whether the plaintiff maintained close relationships with family members and friends; (6) the duration of the emotional distress; and (7) the circumstances under which the infliction incurred, including whether the plaintiff witnessed the distressing event. Feller, 299 P.3d at 345.

Here, the Court finds [*28] Plaintiffs have not presented evidence of the type of emotional distress necessary to demonstrate serious or severe compensable emotional distress. Rhett McJunkin and Charles McJunkin, Jr. testified at deposition that they have both experienced grief, trouble sleeping and have had nightmares. Rhett McJunkin also testified he took sleep medication approximately one year after the accident, but could not recall what the medication was, who prescribed the medication, or how long own long it was taken. Rhett McJunkin also stated he has also experienced “angst” and “anxiety,” and Charles McJunkin, Jr. indicated his focus has been affected.

Nevertheless, there is no indication of any physical manifestation of grief, and neither has sought counseling, taken or increased medication to manage their emotional distress, have suffered a loss of appetite, are unable to maintain close family relationships, and neither witnessed the accident. The Court finds that consideration of the Feller factors does not lead to the conclusion that Plaintiffs’ emotional distress rises to the level where severe emotional distress may be found.

The Court certainly sympathizes with Plaintiffs’ grief for their loss [*29] of their father. Nevertheless, their testimony does not show their emotional distress was so severe that “no reasonable person could be expected to endure it.” Feller, 299 P.3d at 344.

Accordingly, Yeager’s Motion for Summary Judgment is GRANTED on Count II of the Complaint.

C. Yeager’s Motion for Summary Judgment on Plaintiffs’ Loss of Consortium Claim

Yeager argues Plaintiffs’ loss of consortium claim also fails as a matter of law because there is insufficient evidence to support the claim.6 The Court finds there are disputed issues of material fact that preclude summary judgment.

6 Yeager again asserts Plaintiffs’ loss of consortium claim fails because there is no actionable predicate act of negligence. As discussed, this argument is again rejected because there are disputed issues of material fact regarding Plaintiffs’ negligence claim.

[HN15] Montana law recognizes loss of consortium claims by an adult child of an injured parent. N. Pac. Ins. Co. v. Stucky, 2014 MT 299, 377 Mont. 25, 338 P.3d 56, 61 (Mont. 2014). In Stucky, the Montana Supreme Court held an adult child must meet the following two-part test7 to establish a claim for loss of parental consortium: “1) a third party tortuously caused the parent to suffer a serious, permanent and disabling mental or physical injury compensable under Montana law; and 2) the parent’s ultimate condition of mental or physical impairment was so overwhelming and severe that it has caused the parent-child relationship to be destroyed or nearly destroyed.” Id. at 66.

7 The Court adopted the two-part test from Keele v. St. Vincent Hosp. & Health Care Ctr., 258 Mont. 158, 852 P.2d 574 (Mont. 1993), which recognized parental loss of consortium claims by minor children. The Montana Supreme Court stated it found no reason to adopt a different standard for an adult child’s claim of loss of parental consortium. Stucky, 338 P.3d at 65. The Court specifically rejected adopting the more stringent “extraordinarily close and interdependent relationship” test from Hern v. Safeco Ins. Co. of Ill., 2005 MT 301, 329 Mont. 347, 125 P.3d 597 (Mont. 2005), which applies to loss of consortium claims brought by the parent of an adult child.

[HN16] In establishing a loss of parental consortium claim, the plaintiff [*30] may present evidence of the following factors, which the jury may consider in determining both whether the two-part test has been satisfied, and what damages are appropriate: “the severity of injury to the parent; the actual effect the parent’s injury has had on the relationship and is likely to have in the future; the child’s age; the nature of the child’s relationship with the parent; and the child’s emotional, physical and geographic characteristics.” Id.

Stucky involved an injury to a parent, rather than the death of a parent. Nevertheless, an adult child’s loss of a parent would readily meet the requirements established in Stucky for the maintenance of a consortium claim. The fact McJunkin died is sufficient to establish the first prong of the test, which requires serious permanent injury. Second, death is obviously an injury so “overwhelming and severe” as to destroy the parent-child relationship. Thus, the second prong of the test is clearly established.

Yeager points out that Plaintiffs are in their late 50’s/early 60’s, they lived hundreds of miles away from their father, received no financial support from him, and saw him only occasionally. Plaintiffs counter that they had [*31] a tight bond with their father, and that Charles McJunkin, Jr. talked to his father on a regular basis. This is evidence for the jury to assess. Stucky, 338 P.3d at 65.

Accordingly, the Court finds there are disputed issues of material fact that preclude summary judgment on Plaintiffs’ loss of consortium claim. Yeager’s Motion for Summary Judgment as to Count III of the Complaint is therefore, DENIED.

III. MOTION TO AMEND COMPLAINT

Plaintiffs have also filed a Motion to Amend the Complaint. (Doc. 23.) Plaintiffs seek to add a new theory of liability to the existing negligence claim. In particular, Plaintiffs seek to add the theory of strict liability based upon an abnormally dangerous activity. Yeager opposes the motion, arguing Plaintiffs were not diligent in moving to amend, and the proposed amendment is futile.

On June 1, 2017, the Court issued a Scheduling order setting the deadline to amend pleadings for July 3, 2017. (Doc. 20.) Plaintiffs filed the instant motion seeking leave to amend on November 29, 2017. (Doc. 23.)

[HN17] In situations where the deadline for amendments to pleadings has passed, a party must show good cause for not seeking leave to amend within the Court’s scheduling order. Fed.R.Civ.P. 16(b)(4) (“[a] schedule may [*32] only be modified for good cause and with the judge’s consent”); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), the Ninth Circuit explained that “[u]nlike Rule 15(a)’s liberal [HN18] amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Good cause to excuse noncompliance with the scheduling order exists if the pretrial schedule “cannot reasonably be met despite the diligence of the party seeking the extension.” Id. (quoting Fed. R. Civ. P. 16 Advisory Committee’s Notes (1983 Amendment)).

Prejudice to the opposing party may provide an additional reason to deny a motion to amend, but “the focus of the inquiry is upon the moving party’s reasons for seeking modification.” Id. at 609. “If that party was not diligent, the inquiry should end.” Id.; see also In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716, 737 (9th Cir. 2013) (upholding denial of motion to amend where “the party seeking to modify the scheduling order has been aware of the facts and theories supporting amendment since the inception of the action”).

[HN19] If good cause exists for seeking amendment after the scheduling order’s deadline, the Court then turns to Rule 15(a) to determine whether amendment should be allowed. [*33] “Although Federal Rule of Civil Procedure 15(a) provides that leave to amend ‘shall be freely given when justice so requires,’ it ‘is not to be granted automatically.'” In re Western States, 715 F.3d at 738 (quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990)). Under Rule 15(a), the Ninth Circuit directs that courts consider the following five factors to assess whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.” Id. Each of these factors is not given equal weight, however. “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

A. Lack of Diligence

As noted above, Plaintiffs seek to amend the Complaint to include an additional theory of strict liability. The Court finds that Plaintiffs did not act diligently in seeking to amend the Complaint. The motion to amend was filed nearly five months after the Court’s deadline to amend pleadings. Plaintiffs’ explanation for the delay is that the additional theory of liability is premised upon Yeager’s expert report, which they did not receive until November 13, 2017.

The Court finds, however, that Plaintiffs were aware of the facts and theories supporting the amendment long prior to receipt of [*34] Yeager’s expert report. The expert report did not provide any new facts, but rather offered opinion evidence that fly fishing from a raft is inherently dangerous, and that the danger cannot be eliminated by reasonable precautions. But Plaintiffs have been aware that Yeager intended to raise an inherent risk defense since Yeager filed his answer on March 6, 2017, and raised the MRRA as an affirmative defense. (Doc. 4 at 7.) Yeager also filed a Preliminary Pretrial Statement approximately six months before the expert report was produced that put Plaintiffs on further notice of this theory of defense. (See Doc. 18 at 6) (stating that “[f]alling out of a raft on a river is a danger that cannot be prevented by the use of reasonable care.”) Therefore, Plaintiffs’ argument that they did not possess information supporting the abnormally dangerous activity theory of liability until after they received the expert report is not persuasive. See Bonin, 59 F.3d at 845 (holding a motion to amend may be denied “where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally”).

B. Futility of Amendment

Even if the Court found “good cause,” under [*35] Rule 16, application of the Rule 15 factors dictate denial of the motion to amend. Although there is no indication Plaintiffs are acting in bad faith, or that amendment would unduly prejudice Yeager, the Court has found undue delay. Moreover, the Court finds the amendment would be futile.

In seeking to impose strict liability, Plaintiffs conflate the concept of inherent risk with an abnormally dangerous activity. The activity at issue here — fly fishing from a raft — is not the kind of activity that has been recognized as abnormally dangerous. [HN20] Simply because an activity has inherent risks, does not mean the activity is abnormally dangerous for purposes of strict liability. A comparison of activities that are considered abnormally dangerous illustrates the point. See e.g. Beckman v. Butte-Silver Bow Cty., 2000 MT 112, 299 Mont. 389, 1 P.3d 348 (Mont. 2000) (trenching); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338 Mont. 259, 165 P.3d 1079 (Mont. 2007) (operating a gas refinery near residences and a school); Ulmen v. Schwieger, 92 Mont. 331, 12 P.2d 856 (Mont. 1932) (highway construction); and Stepanek v. Kober Const., 191 Mont. 430, 625 P.2d 51 (Mont. 1981) (construction scaffolding). The Court does not find the characteristics and risks of fly fishing equate in any meaningful way with these types of activities.8

8 Likewise, the Restatement (Second) of Torts § 519, which has been adopted by the Montana Supreme Court, identifies the following as abnormally dangerous activities: “Water collected in quantity in unsuitable or dangerous place,” “Explosives in quantity in a dangerous place,” “Inflammable liquids in quantity in the midst of a city,” “Blasting, in the midst of a city,” “Pile driving, with abnormal risk to surroundings,” “Release into air of poisonous gas or dust,” “Drilling oil wells or operating refineries in thickly settled communities,” and “production of atomic energy.” Again, these activities are of a wholly different nature than float fly fishing.

“Whether an activity is abnormally dangerous is a question of law.” Chambers v. City of Helena, 2002 MT 142, 310 Mont. 241, 49 P.3d 587, 591 (Mont. 2002), overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134 (Mont. 2007). No court has held float fly fishing is an abnormally dangerous activity, and [*36] this Court declines Plaintiffs’ invitation to be the first to do so.

In addition, the Court has determined the MRRA is constitutional and applies to Plaintiff’s negligence claim. The MRRA limits a recreational provider’s liability. Mont. Code Ann. § 27-1-752(3); 27-1-753. The Montana Legislature enacted the MRRA to protect recreational providers from liability for injuries that are caused by the very characteristics of a particular activity that make it attractive to participants. 2009 Mt. Laws Ch. 331 (H.B. 150), preamble. The Legislature specifically intended to limit providers’ liability and to discourage claims based on damages that result from inherent risks in a sport or activity. Id. The Legislature enacted the MRRA to further the State’s interest in maintaining the economic viability of Montana’s sports and recreational industries. Id.

Imposing strict liability would eviscerate the purpose of the MRRA. Instead of limiting recreational provider’s liability for inherent risks, it would render them strictly liable for those risks. See Christian v. Atl. Richfield Co., 2015 MT 255, 380 Mont. 495, 358 P.3d 131, 150 (Mont. 2015) (“A claim based upon strict liability for the conduct of an abnormally dangerous activity . . . means that the defendant is liable for harm resulting from the activity, even [*37] if the defendant acted with reasonable care.”). In short, it would accomplish the exact opposite of what the MRRA was intended to do.

Therefore, because Plaintiffs have not shown good cause for their delay in seeking amendment, and because the amendment would be futile, Plaintiffs’ Motion to Amend the Complaint is DENIED.

IV. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows: (1) Plaintiffs’ Motion to Amend (Doc. 23) is DENIED;

(2) Plaintiffs’ Motion for Partial Summary Judgment (Doc. 28) is DENIED; and

(3) Defendant’s Motion for Summary Judgment (Doc. 31) is GRANTED in part and DENIED in part.

IT IS ORDERED.

DATED this 28th day of September, 2018.

/s/ Timothy J. Cavan

TIMOTHY J. CAVAN

United States Magistrate Judge


Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.

However, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.

Quiroz et. al. v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas, Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”)

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish.

Defendant Defenses: Release

Holding: for the Defendant

Year: 2018

Summary

Adult paralyzed in a trampoline facility sues for her injuries. The release she signed before entering stopped all of her claims, including her claim for gross negligence.

However, the reasoning behind the support for the release to stop the gross negligence claim was not in the decision, so this is a tenuous decision at best.

Facts

The plaintiff and her sixteen-year-old son went to the defendant’s business. Before entering she signed a release. While on a trampoline, the plaintiff attempted to do a back flip, landed on her head and was rendered a paraplegic from the waist down.

The plaintiff sued on her behalf and on behalf of her minor. Her claim was a simple tort claim for negligence. Her children’s claims were based on the loss of parental consortium and under Texas law bystander claims for seeing the accident or seeing their mother suffer. The plaintiff’s husband also joined in the lawsuit later for his loss of consortium claims.

The defendant filed a motion for summary judgment which the trial court granted and the plaintiff appealed.

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

The original entity named on the release was a corporation that was no longer in existence. Several successor entities now owned and controlled the defendant. The plaintiff argued the release did not protect them because the release only spoke to the one defendant.

The court did not agree, finding language in the release that stated the release applied to all “jumpstreet entities that engaged in the trampoline business.”

…it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”

The next argument was whether the release met the requirements on Texas law for a release. The court pointed out bold and capital letters were used to point out important parts of the release. An assumption of the risk section was separate and distance from the release of liability section, and the release warned people to read the document carefully before signing.

Texas also has an express negligence rule, the requirements of which were also met by the way the release was written.

Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.

Next the plaintiff argued that the release covered her and her sixteen-year-old minor son. As such the release should be void because it attempted to cover a minor and releases in Texas do not work for minors.

The court ignored this argument stating it was not the minor who was hurt and suing; it was the plaintiff who was an adult. The court then also added that the other plaintiffs were also covered under the release because all of their claims, loss of parental consortium and loss of consortium are derivative claims. Meaning they only succeed if the plaintiff s claim succeeds.

The final argument was the plaintiff plead negligence and gross negligence in her complaint. A release in Texas, like most other states, was argued by the plaintiff to not be valid.

The appellate court did not see that argument as clearly. First, the Texas Supreme Court had not reviewed that issue. Other appellate courts have held that there is no difference in Texas between a claim for negligence and a claim for gross negligence.

The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury. Some appellate courts have held that negligence, and gross negligence are not separable claims and a release of liability for negligence also releases a party from liability for gross negligence.

(For other arguments like this see In Nebraska a release can defeat claims for gross negligence for health club injury.)

The court looked at the release which identified negligence and gross negligence as claims that the release would stop.

Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

Although not specifically writing in the opinion why the release stopped the gross negligence claims, the court upheld the release for all the plaintiff claims.

…Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.

The court affirmed the trial court’s dismissal of the plaintiff’s claims.

So Now What?

First this case is a great example of believing that once you have a release you don’t have to do anything else. If the defendant’s release would have been checked every year, someone should have noticed that the named entity to be protected no longer existed.

In this case that fact did not become a major issue, however, in other states the language might not have been broad enough to protect everyone.

Second, this case is also proof that being specific with possible risks of the activities and have an assumption of risk section pays off.

Finally, would I go out and pronounce that Texas allows a release to stop claims for gross negligence. No. Finger’s crossed until the Texas Supreme Court rules on the issue or another appellate court in Texas provides reasoning for its argument, this is thin support for that statement.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Quiroz v. Jumpstreet8, Inc., 2018 Tex. App. LEXIS 5107

Graciela Quiroz, Individually, a/n/f of Xxxx (“John Doe 1”) and Xxxx (“John Doe 2”), Minors, and Robert Sullivan, Individually, a/n/f of Xxxx (“John Doe 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees

No. 05-17-00948-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2018 Tex. App. LEXIS 5107

July 9, 2018, Opinion Filed

PRIOR HISTORY: [*1] On Appeal from the 298th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 15-02671.

In re Quiroz, 2017 Tex. App. LEXIS 7423 (Tex. App. Dallas, Aug. 7, 2017)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The trampoline facility owner met its burden of establishing it was entitled to summary judgment as a matter of law because the release was enforceable when it met both the fair notice requirement for conspicuousness and the express negligence rule.

OUTCOME: Order affirmed.

CORE TERMS: summary judgment, entity, gross negligence, public policy, negligence claims, partial, matter of law, cause of action, pre-injury, consortium, waive, cross-motion, notice requirements, trampoline, bystander, specifically named, unenforceable, signing, mental anguish, signature line, conspicuousness, distinguishable, enforceable, derivative, lettering, parental, waiving, notice, void, issue of material fact

COUNSEL: For Graciela Quiroz, et al, Appellant: John T. Kirtley, Lead counsel, Ferrer, Poirot and Wansbrough, Dallas, TX.

For Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellee: Cassie Dallas, Shelby G. Hall, Wade C. Crosnoe, Lead Counsel, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX; Michael A. Yanof, Lenahan Law, P.L.L.C., Dallas, TX; Randy Alan Nelson, Thompson Coe, Dallas, TX.

JUDGES: Before Justices Myers, Boatright, and O’Neill.1 Opinion by Justice O’Neill.

1 The Hon. Michael J. O’Neill, Justice, Assigned

OPINION BY: MICHAEL J. O’NEILL

OPINION

MEMORANDUM OPINION

Opinion by Justice O’Neill

Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.

Background

On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release [*2] and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.

Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted [*3] the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.

Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.

Issue Presented

In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion [*4] for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.

Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.

Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release [*5] before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.

Applicable Law

[HN1] We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.–Dallas 2009, no pet.); see also Tex. R. Civ. P. 166a(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. [*6] S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).

The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. [HN2] A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.–Dallas 2011, no pet,).

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.

Discussion

[HN3] Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written [*7] expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).

[HN4] A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.–Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of [*8] Jumpstreet.”

The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.

Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document [*9] carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).

The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of [*10] risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.

Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.–Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. [*11] Moreover, [HN5] the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799-800 (Tex. App.–Houston [14th Dist.] 1998, no pet.).

Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.–Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.2 Some appellate courts have held that negligence [*12] and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.–San Antonio 1994, writ denied).

2 We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.

In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.–Beaumont 1986, no writ).

Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the [*13] claims being waived. See Quintana, 347 S.W.3d at 450.

Conclusion

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.

We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.

/s/ Michael J. O’Neill

MICHAEL J. O’NEILL

JUSTICE, ASSIGNED

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.

Judgment entered this 9th day of July, 2018.


Have you ever read your insurance policy? You should! The one at issue in this case specifically excluded the risks the policy was bought to cover.

An event organizer of a 5K Extreme Rampage purchased an insurance policy that specifically excluded coverage for a 5K run with obstacles, mud runs and tough-guy races.

Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447

State: Kentucky, Court of Appeals of Kentucky

Plaintiff: Chris Johnson D/B/A Extreme Rampage, and Chris Johnson, and Christopher Johnson, Rampage LLC, Christopher Johnson D/B/A Rampage, LLC, and/or Extreme Rampage, Casey Arnold, Individually and as Administratrix Of the Estate of Chad Arnold, and as Next Friend and Guardian/ Conservator for Miles Arnold, and as Assignee for All Claims Held By “The Johnson Parties

Defendant: Capitol Specialty Insurance Corporation

Plaintiff Claims: negligence; violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act; fraud; and breach of contract

Defendant Defenses:

Holding:

Year: 2018

Summary

Insurance litigation about a claim for an event, service, trip or liability is much costlier and time-consuming than any litigation concerning an injury.

In this case, the event owner and organizer of a mud run obstacle course in Kentucky purchased insurance for the event, which excluded all coverage needed for the event. Effectively, the plaintiff in this case paid for paper that had no value.

The trial courts and the appellate court agreed with the insurance company because the exclusions were in the policy that was available to the insured prior to the event.

Facts

The plaintiff in this appeal created an owned a mud run obstacle course the Extreme Rampage. Johnson the individual created Extreme Rampage LLC, which then organized and ran the event.

The event was a 3K obstacle race, similar if not identical to mud runs, death races, etc., The race was to be held at the Kentucky Horse Park. The horse park required a $1 million-dollar policy covering them.

Johnson contacted an insurance agent over the phone who completed an application and sent it off. A quote was received and accepted. The cost was $477.00, which should have been the first clue; it was too cheap. The only part of the application or proposal that Johnson saw was the “subjectivities page” which stated the policy was to be issued after a list of things were verified. The items to be verified list things as rallies, cattle drives, etc., but did not list obstacle course, running events or the like.

When the policy was issued it contained two exclusions. The first was labeled the sponsor exclusion by the court and stated:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY

EXCLUSION — ATHLETIC OR SPORTS PARTICIPANTS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

SCHEDULE

Description of Operations:

Special event — 5K run with obstacles.

. . .

With respect to any operations shown in the Schedule, this insurance does not apply to “bodily injury” to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.

And the second exclusion labeled by the court as the participant exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION — PARTICIPANTS

(SPECIFIED ACTIVITIES/OPERATIONS)

SCHEDULE

Descriptions of Activity/Operations

Mud Runs and Tough Guy Races

This insurance does not apply to “bodily injury,” “property damage,” “personal or advertising injury” or medical expense arising out of any preparation for or participation in any of the activities or operations shown in the schedule above.

During the race, one of the participants collapsed and died. His wife sued. The insurance company denied coverage. That means the insurance company was not only not going to pay the claim, they were not going to pay for attorneys to defend the case.

The Insurance Company filed a declaratory action. This lawsuit was between Johnson, the policyholder and the insurance company where the insurance company was looking for a ruling stating it had no duty to provide coverage. This is a request for immediate decision from the court on the interpretation of the policy.

Johnson, the insured and Arnold the family of the deceased participant both filed suit against the insurance company. The trial court combined the two lawsuits into one. Both filed motions for summary judgment and the insurance company filed its motion for summary judgment.

After reading the exclusions, the policy only covered spectators at the event. The spectators had to be 100′ from the event so any spectator injured that was closer than 100′ to the event could sue, and Johnson would have no coverage for that claim either. Basically, the policy was a worthless piece of paper for the event.

The trial court granted the insurance companies motion for summary judgment, and this appeal ensued. Both Johnson and the Arnold family appealed.

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

Insurance policies have their own set of laws. Even though they are contracts, after the contract is formed, new ways of interpreting a policy are created.

One such rule is any ambiguity in the policy will be ruled or interpreted against the insurance company. Since policies are presented as a take it or leave it contract, any mistakes in the contract are ruled so the policy holder wins.

The first claim is a quasi-fraud claim based on the lack of information concerning the exclusions. The court looked at this more as a situation where the event organizer did not read the policy.

Johnson cannot avoid the terms of the insurance contract by pleading ignorance of its contents. It is axiomatic that “insured persons are charged with knowledge of their policy’s contents.

Because Johnson signed the policy (? Application not the policy, in reality) Johnson was held to the terms of the policy.

Although Johnson claims, based on his interaction with Delre, that the terms of the policy were not what he had anticipated, no genuine issue of material fact exists that Johnson signed the policy and, as a matter of law, was presumed to know its contents.

The next argument was the insurance agent the event organizer worked with was an agent of the insurance company Capitol. As such, the agents could be liable and the agents could create liability for Capitol. An agency is created when the principal, the insurance company, grants specific authority to the agent.

“Actual authority arises from a direct, intentional granting of specific authority from a principal to an agent.” The Restatement (Third) of Agency § 2.02(1) (2006) provides that “[a]n agent has actual authority to take action designated or implied in the principal’s manifestations to the agent and acts necessary or incidental to achieving the principal’s objectives, as the agent reasonably understands the principal’s manifestations and objectives when the agent determines how to act.”

However, there was no evidence in the record to show any agency between the insurance sales person and the insurance company, even though the sales person is called an agent.

The next argument was over the language in the policy. The event organizer argued the exclusion should not apply because the term “sponsor” was ambiguous.

Exclusions in insurance contracts are to be narrowly interpreted, and all questions resolved in favor of the insured. Exceptions and exclusions are to be strictly construed so as to render the insurance effective. Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured. And since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.

After narrowly interpreting the policy, any ambiguity in the language of the policy must be interpreted in favor of the policy holder and against the insurance company.

…[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.

However, the court found the term in this case, was not ambiguous.

The event organizer then argued that the Concurrent Proximate Cause Doctrine should apply in this case. The concurrent proximate cause doctrine holds that when an insured event flows from an insured event, the protection afforded by the insurance policy flows with to the new event.

Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.

The court found that there was no insured event to begin with so nothing could “flow” to the uninsured event.

The appellate court upheld the motion in the declaratory action by the trial court stating the insurance company Capitol had no duty to defend the event organizer Johnson and thus any liability to the Arnold family.

So Now What?

This is simple. You MUST do the following things if you are the owners, sponsor, organizer or insured with an insurance policy.

  1. Read it
  2. Understand it
  3. Make sure it covers what you need it to cover.
  4. Find an agent who understands what you need and can communicate that to all the insurance companies he may be working with.
    1. If that means getting the insurance company out from behind their desk and down the river, to an event, or in your factory do that.
  5. Always confirm in writing or electronically that the coverage you requested and need is covered in the policy you are purchasing.
  6. Ask to see the policy and any exclusions, prerequisites or other requirements before paying for it. Once you open your wallet, you won’t get your money back.
  7. If the price of the policy is too good to be true, start investigating. On average a policy should cost $5 to $10 per person per day for outdoor recreation coverage. That amount is the bottom line and can go beyond that. If you are purchasing a policy at 1980 prices $2.00 per person per day, you are buying worthless paper.

You cannot be in business without an insurance policy. Contrary to popular believe, insurance policies do not attract lawsuits. How do people know if you are insured? If they do not know you are insured, how can someone decided to sue just because you have money.

If for no other reason, you need a policy that will pay to prove you are right. The attorney fees, court costs, exhibits, witness fees alone on a small case will exceed $50K. That means with no policy or a bad policy, you are out $50 to $100K before you even begin to pay a claim.

Insurance policies are difficult. I spent six years, three before and three after working for Nationwide Insurance. Reading a policy, let alone understanding it is mind numbing and hard. But you better or you will be standing in the cold, because someone took your house.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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





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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447

Johnson v. Capitol Specialty Ins. Corp.

Court of Appeals of Kentucky

June 22, 2018, Rendered

NO. 2017-CA-000171-MR, NO. 2017-CA-000172-MR

Reporter

2018 Ky. App. Unpub. LEXIS 447 *; 2018 WL 3090503CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE (COLLECTIVELY KNOWN AS “THE JOHNSON PARTIES”) BY AND THROUGH ASSIGNEE CASEY ARNOLD, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE;CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE

Notice: THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

Prior History:  [*1] APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NOS. 14-CI-00948 & 15-CI-00777. APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NOS. 14-CI-00948 & 15-CI-00777.

Counsel: BRIEFS FOR APPELLANTS, CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE: Don A. Pisacano, Lexington, Kentucky.

BRIEFS FOR APPELLANTS, CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”: A. Neal Herrington, Christopher H. Morris, Louisville, Kentucky.

BRIEFS FOR APPELLEE, CAPITOL SPECIALTY INSURANCE CORPORATION: Richard J. Rinear, Zachary D. Bahorik, Cincinnati, Ohio.

Judges: BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. MAZE, JUDGE, CONCURS. THOMPSON, JUDGE, CONCURS IN RESULT ONLY.

Opinion by: CLAYTON

Opinion

AFFIRMING

CLAYTON, CHIEF JUDGE: These consolidated appeals1 are taken from a Fayette Circuit Court order entering declaratory summary judgment in favor of Capitol Specialty Insurance Corporation. The primary issue is whether a [*2]  general commercial liability insurance policy issued by Capitol covers potential damages stemming from the death of a participant in an obstacle race, or whether exclusions in the policy bar recovery.

The obstacle race, known as “Extreme Rampage,” was organized and presented by Chris Johnson, the owner of Rampage, LLC. The 5K race, which included a climbing wall and mud pits, was held at the Kentucky Horse Park on March 2, 2013. Under the terms of his contract with the Horse Park, Johnson was required to “provide public liability insurance issued by a reputable company, which shall cover both participants and spectators with policy coverage of one million dollars ($1,000,000.00) minimum for each bodily injury[.]”

Johnson purchased the policy from Stephen Delre, an insurance agent employed at the Tim Hamilton Insurance Agency (“THIA”). Delre filled out an application for insurance on Johnson’s behalf and submitted it to Insurance Intermediaries, Inc. (“III”). III submitted the application to Capitol. Capitol prepared a proposal for coverage which III gave to THIA. Johnson accepted the proposal and III produced the policy based upon the terms offered by Capitol.

The policy contained two [*3]  provisions excluding bodily injury to the event participants from its coverage. For purposes of this opinion, the exclusions will be referred to as the “sponsor” exclusion and the “arising out of” exclusion.

The sponsor exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY

EXCLUSION — ATHLETIC OR SPORTS PARTICIPANTS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

SCHEDULE

Description of Operations:

Special event — 5K run with obstacles.

. . .

With respect to any operations shown in the Schedule, this insurance does not apply to “bodily injury” to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.

The participant exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION — PARTICIPANTS

(SPECIFIED ACTIVITIES/OPERATIONS)

SCHEDULE

Descriptions of Activity/Operations

Mud Runs and Tough Guy Races

This insurance does not apply to “bodily injury,” “property damage,” “personal or advertising injury” or medical expense arising out of any preparation for or participation in any of the activities or operations [*4]  shown in the schedule above.

During the course of the Extreme Rampage race, one of the participants, Chad Arnold, collapsed and died. His wife, Casey Arnold, acting individually, as the administratrix of his estate and as guardian/conservator for their minor son Miles (“Arnold”), filed a wrongful death suit naming numerous defendants, including Johnson. Johnson sought defense and indemnity under the Capitol policy. Capitol denied coverage and filed a declaratory judgment complaint in Fayette Circuit Court on March 17, 2014, asserting it had no duty to defend or indemnify Johnson because the policy expressly excluded coverage for event participants.

Johnson and Arnold subsequently filed a complaint in a different division of Fayette Circuit Court against Capitol, THIA, Delre, and III, asserting claims of negligence; violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act; fraud; and breach of contract. On April 15, 2015, the two actions were consolidated by court order. Johnson and Arnold filed a motion for summary judgment; Capitol filed a motion for summary declaratory judgment. The trial court held extensive hearings on the motions and thereafter [*5]  entered an order granting Capitol’s motion and dismissing with prejudice all claims asserted against Capitol by Johnson and Arnold. Additional facts will be set forth as necessary later in this opinion.

In granting summary declaratory judgment to Capitol, the trial court held that that the policy issued by Capitol to Johnson excluded coverage to the Johnson defendants for the underlying claims of the Arnold defendants because the sponsor exclusion was clear and unambiguous and the Johnson defendants are a “sponsor” within the plain meaning of the word as used in the exclusion. The trial court further held that, as a matter of law, neither the concurrent proximate cause doctrine nor the efficient proximate cause doctrine applies to afford coverage under the policy to the Johnson defendants for the claims of the Arnold defendants; that neither Delre nor THIA is an agent of any kind of Capitol; and finally, that no other oral or written contract modified and/or superseded the policy to afford coverage by Capitol.

These appeals by Johnson and Arnold followed.

In reviewing a grant of summary judgment, our inquiry focuses on “whether the trial court correctly found that there were no genuine [*6]  issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781, 43 1 Ky. L. Summary 17 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure (CR) 56.03). Summary judgment may be granted when “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotation marks and citation omitted). “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Id. at 480. On the other hand, “a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Id. at 482. “An appellate court need not defer to the trial court’s decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved.” Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004).

We have grouped the Appellants’ arguments into the following six categories: first, that the terms of the policy do not reflect what Johnson requested from Delre; second, that Delre and THIA were actual or apparent agents of Capitol whose alleged misrepresentations [*7]  or omissions to Johnson about the policy bound their principal; third, that neither the “sponsor” exclusion nor the “arising out of” exclusion in the policy was applicable; fourth, that the exclusions create an ambiguity in the policy when read with the coverage endorsements; fifth, that the concurrent proximate cause doctrine provides coverage under the policy; and sixth, that the trial court erred in dismissing all claims against Capitol.

1. The purchase of the policy

Johnson denies that the insurance policy attached to Capitol’s declaratory judgment complaint is a true and accurate copy of the policy he purchased and admits only that the document attached to the complaint is the document he received in the mail after he had paid for the policy.

According to deposition testimony, Johnson first spoke with Delre about obtaining insurance coverage for the Extreme Rampage event in a telephone conversation in December 2012. Johnson had purchased an insurance policy for a similar race event from Delre approximately six months earlier. Delre questioned Johnson about the type of coverage he was seeking. Johnson was unaware that Delre was simultaneously filling out a “special event” insurance [*8]  application. According to Johnson, he told Delre he needed participant coverage and Delre specifically asked him how many participants would be involved in the event. Delre nonetheless left blank on the “special event” application form whether athletic participant coverage was requested. Delre signed Johnson’s name to the application for insurance without Johnson reviewing the document. After the insurance application was submitted, Delre sent a proposal to Johnson which he claims he never received.

On February 8, 2013, Johnson visited Delre and THIA’s office to pay for the policy in the amount of $477. He signed a “subjectivities page” which stated that the policy quote was subject to verification of the following:

No events involving the following: abortion rights, pro choice or right-to-life rallies/parades or gatherings, air shows or ballooning events, auto racing regardless of vehicle size (including go-karts, motorcycles and snowmobiles), cattle drives, events involving inherently dangerous or stunting activities, events with water rides/slides etc., political demonstrations or protest rallies by groups with a history of violent incidents, [n]o events with fireworks displays. AND [*9]  — Spectators must be a safe distance (100 feet minimum) from the obstacle course.

Johnson was not shown the actual policy, nor was he informed of the participation exclusions in the insurance proposal.

A copy of the complete policy containing the “sponsor” exclusion and the “arising out of” exclusion was mailed to Johnson on February 27, 2013. Johnson asserts that the policy did not conform to what he agreed to in his conversation with Delre and that he was never informed that participants would be excluded from coverage. He points out that the policy was also later unilaterally modified by Delre after the Horse Park requested a certificate of insurance indicating that it was an “additional insured” on the policy.

Johnson cannot avoid the terms of the insurance contract by pleading ignorance of its contents. It is axiomatic that “insured persons are charged with knowledge of their policy’s contents[.]” Bidwell v. Shelter Mut. Ins. Co., 367 S.W.3d 585, 592 (Ky. 2012) (citing National Life & Accident Ins. Co. v. Ransdell, 259 Ky. 559, 82 S.W.2d 820, 823 (1935)). “In Midwest Mutual Insurance Company v. Wireman, 54 S.W.3d 177 (Ky. App. 2001), the Court of Appeals held an insured can waive UM coverage by signing the application for liability coverage, even if the insured alleges the agent never explained the meaning of UM coverage to him.” Moore v. Globe Am. Cas. Co., 208 S.W.3d 868, 870 (Ky. 2006). “All persons are presumed to know the law and the mere lack of knowledge [*10]  of the contents of a written contract for insurance cannot serve as a legal basis for avoiding its provisions.” Id. (internal quotation and citation omitted).

Although Johnson claims, based on his interaction with Delre, that the terms of the policy were not what he had anticipated, no genuine issue of material fact exists that Johnson signed the policy and, as a matter of law, was presumed to know its contents. The trial court did not err in ruling that there was no genuine issue of material fact concerning the policy and that no other oral or written contract modified or superseded the policy to afford coverage to Johnson for Arnold’s claims.

2. Were Delre and THIA agents of Capitol

Arnold seeks to hold Capitol liable for any omissions or misrepresentations of Delre and THIA by arguing that they were Capitol’s actual or apparent agents. “Under common law principles of agency, a principal is vicariously liable for damages caused by torts of commission or omission of an agent or subagent, . . . acting on behalf of and pursuant to the authority of the principal.” Williams v. Kentucky Dep’t of Educ., 113 S.W.3d 145, 151 (Ky. 2003), as modified (Sept. 23, 2003) (internal citations omitted).

“Actual authority arises from a direct, intentional granting of [*11]  specific authority from a principal to an agent.” Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 830 (Ky. App. 2014). The Restatement (Third) of Agency § 2.02(1) (2006) provides that “[a]n agent has actual authority to take action designated or implied in the principal’s manifestations to the agent and acts necessary or incidental to achieving the principal’s objectives, as the agent reasonably understands the principal’s manifestations and objectives when the agent determines how to act.” Kentucky’s Insurance Code provides that “[a]ny insurer shall be liable for the acts of its agents when the agents are acting in their capacity as representatives of the insurer and are acting within the scope of their authority.” Kentucky Revised Statutes (KRS) 304.9-035.

There is no evidence in the record that Capitol made a direct, intentional grant of authority to THIA and Delre to act as its agents or representatives; nor is there evidence that Capitol made any manifestations of its objectives to THIA or Delre with the expectation that they would act to achieve those objectives. Furthermore, as elicited in the hearing before the trial court, Capitol does not have a written agreement with THIA or Delre establishing them as its agents nor is there a registration or filing with the Kentucky Department of Insurance designating them as licensed [*12]  agents of Capitol. By contrast, Delre and THIA are registered, authorized agents of Nationwide Insurance in Kentucky and Johnson actually believed he would be purchasing a Nationwide policy from Delre.

As evidence of an actual agency relationship, Arnold points to the fact that THIA and Capitol both have contracts with III, the intermediary brokerage company which sent Johnson’s application for insurance to Capitol, seeking a policy proposal. The existence of contracts with the same third party was not sufficient in itself to create an actual agency relationship between THIA and Delre and Capitol. Capitol prepared the insurance proposal in reliance on the information contained in the application submitted by III; Capitol had no contact with or control over Delre or THIA. Consequently, Capitol could not be bound by what Johnson believed Delre had promised.

Similarly, there is no evidence that THIA and Delre were apparent agents of Capitol. “Apparent authority . . . is not actual authority but is the authority the agent is held out by the principal as possessing. It is a matter of appearances on which third parties come to rely.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 499 (Ky. 2014) (quoting Mill St. Church of Christ v. Hogan, 785 S.W.2d 263, 267 (Ky. App. 1990)). “One who represents that another is his servant [*13]  or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 257 (Ky. 1985) (quoting Restatement (Second) of Agency § 267 (1958)).

The only representations made to Johnson by Capitol were in the form of the proposal and written policy he signed. Capitol never held out Delre and THIA as its agents. Johnson admitted he had no contact with Capitol whatsoever and did not even know the policy he purchased was provided by Capitol until after the Extreme Rampage event.

The trial court did not err in holding that no agency relationship, actual or apparent, existed between Capitol and Delre and THIA.

3. Applicability of the policy exclusions

The trial court ruled that the “sponsor” exclusion was clear and unambiguous and the Johnson defendants were a “sponsor” within the plain meaning of the word as it was used in the exclusion. The Appellants disagree, arguing that the multiple definitions of the term “sponsor,” which is not defined in the policy, render it ambiguous.

“Interpretation and construction of an insurance contract is a matter [*14]  of law for the court.” Kemper Nat’l Ins. Companies v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 871 (Ky. 2002). Exclusions in insurance contracts

are to be narrowly interpreted and all questions resolved in favor of the insured. Exceptions and exclusions are to be strictly construed so as to render the insurance effective. Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured. And since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.

Eyler v. Nationwide Mut. Fire Ins. Co., 824 S.W.2d 855, 859-60 (Ky. 1992) (internal citations omitted).

On the other hand,

[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.

St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226-27 (Ky. 1994).

The Appellants rely on an opinion of the federal district court for the Eastern District of Pennsylvania, Sciolla v. West Bend Mut. Ins. Co., 987 F. Supp. 2d 594 (E.D. Pa. 2013) which held an identical insurance exclusion [*15]  to be inapplicable after concluding the term “sponsor” is ambiguous due to the lack of a universally accepted definition of the term by dictionaries and the courts. Sciolla, 987 F. Supp. 2d at 603. The Sciolla court assembled the following dictionary definitions of “sponsor:”

The full definition given by Merriam-Webster is: “a person or an organization that pays for or plans and carries out a project or activity; especially: one that pays the cost of a radio or television program usually in return for advertising time during its course.” Merriam-Webster’s Collegiate Dictionary, 1140 (9th ed. 1983). . . .

. . . [T]he American Heritage Dictionary defines sponsor, in relevant part, as “[o]ne that finances a project or an event carried out by another person or group, especially a business enterprise that pays for radio or television programming in return for advertising time.” American Heritage Dictionary of the English Language, 1679, (4th ed., 2009). Other dictionaries defines sponsor as “[o]ne that finances a project or an event carried out by another,” The American Heritage College Dictionary, 1315 (3d ed. 1993), or, as a verb, “to pay or contribute towards the expenses of a radio or television program, a performance, [*16]  or other event or work in return for advertising space or rights.” Oxford English Dictionary, 306 (2d ed. 1989).

Id. at 602.

The Sciolla court grouped the definitions into two categories: “The first concept is that of a person or an organization that pays for a project or activity. . . . The second concept is of a person or an organization that plans and carries out a project or activity.” Id. (italics in original).

As recognized by the Sciolla court, in order to be found ambiguous, a term with multiple definitions must be subject to more than one interpretation when applied to the facts of the case before it. Id. at 603. “Because a word has more than one meaning does not mean it is ambiguous. The sense of a word depends on how it is being used; only if more than one meaning applies within that context does ambiguity arise.” Board of Regents of Univ. of Minnesota v. Royal Ins. Co. of Am., 517 N.W.2d 888, 892 (Minn. 1994). As the United States Supreme Court has observed in the context of statutory interpretation, “[a]mbiguity is a creature not of definitional possibilities but of statutory context[.]” Brown v. Gardner, 513 U.S. 115, 118, 115 S. Ct. 552, 555, 130 L. Ed. 2d 462 (1994).

It is the Appellants’ position that Johnson did not “sponsor” the Extreme Rampage but actually organized, promoted, and ran the event. In his deposition, Johnson stated that he was not a “sponsor” of the [*17]  Extreme Rampage event but that he “owned” the event, and that he actually discovered Delre and THIA while seeking sponsorships for Rampage events. Delre in his deposition confirmed that Johnson asked him to be a sponsor. When he was asked how he got started funding Rampage, LLC, Johnson replied “Sponsorships and my own pocket.” Thus, the evidence indicates that Johnson helped to fund Extreme Rampage and also planned and carried it out. There is no evidence that he financed a project carried out by another or that he paid for the project in exchange for advertising space.

The fact that Johnson’s actions do not meet each and every one of the multiple definitions of “sponsor” does not render the term ambiguous, however, when the term is viewed in the context of the language of the exclusion, which applies to “bodily injury to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” (Emphasis added.)

The policy provides the following definition of “you”: “Throughout this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the declarations, and any other person or organization qualifying as a Named Insured under [*18]  this policy. The words ‘we’, ‘us’ and ‘our’ refer to the company providing this insurance.” Thus, Johnson, the Named Insured, is “you.” When the term “sponsor” is viewed within the context of an insurance policy covering one discrete event sponsored by the Named Insured, Johnson, it was plainly intended to refer to Johnson and to the specific Extreme Rampage event he was sponsoring.

The Appellants argue that the trial court did not have the right to choose which of the multiple competing definitions of sponsor applied. When viewed in the context of the exclusion, however, the definition is plainly limited to the sponsorship activities of the Name Insured, Johnson.

Because the trial court did not err in holding that the “sponsor” exclusion is applicable, we need not address the validity of the “arising out of” exclusion.

4. The applicability of the concurrent proximate cause doctrine

Johnson argues that even if the policy exclusions apply, the concurrent proximate cause doctrine provides coverage under the policy. Johnson contends that the doctrine was adopted by the Kentucky Supreme Court in Reynolds v. Travelers Indem. Co. of Am., 233 S.W.3d 197, 203 (Ky. App. 2007). Reynolds is an opinion of the Court of Appeals, and it did not officially adopt the doctrine; [*19]  it approved of the reasoning in a case from our sister state in Bowers v. Farmers Insurance Exchange, 99 Wash. App. 41, 991 P.2d 734 (2000), which applied the “efficient proximate cause doctrine.” Reynolds, 233 S.W.3d at 203.

The doctrine holds that

Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.

10A Couch on Insurance 3d § 148:61 (2005).

Applying the doctrine, Johnson argues that even if Chad Arnold’s participation in the race was an excluded peril, the loss was essentially caused by a peril that was insured. He contends that the allegations of Arnold’s complaint, such as failure to provide reasonable medical treatment; failure to plan and have proper policies and procedures; and failure to train, instruct, and supervise are not predicated upon a cause of action or risk that is excluded under the policy. He points to the affidavit of a doctor who reviewed Chad Arnold’s medical records and post-mortem examination and concluded that he died of a pre-existing heart condition unconnected [*20]  with his participation in the race.

This argument ignores the fact that the “sponsor” exclusion does not reference causation or a specific “peril”; it merely excludes participants in the covered event from recovery for bodily injury, whatever the cause. It does not require a finding that the bodily injury was caused by participation in the event.

We agree with the reasoning of the federal district court for the Western District of Kentucky, which addressed a factually-similar situation involving a student who collapsed and died while practicing for his college lacrosse team. Underwriters Safety & Claims, Inc. v. Travelers Prop. Cas. Co. of Am., 152 F. Supp. 3d 933 (W.D. Ky. 2016), aff’d on other grounds, 661 F. App’x 325 (6th Cir. 2016). The college’s insurance policy contained an exclusion for athletic participants. The plaintiffs argued that the allegations of their complaint were focused on the college’s failure to provide pre-participation medical forms to physicians who examined the student and on the college’s failure to render proper medical treatment. The district court described these arguments as “red herrings” that attempted “to re-contextualize the fatal injury as a result of medical malpractice or concurrently caused by medical malpractice and engagement in athletic activity.” Underwriters, 152 F. Supp. 3d at 937. The complaint filed by the [*21]  student’s estate “did not seek redress for a bodily injury that occurred during pre-participation athletic medical screenings. The policy specifically excludes bodily injury while engaged in athletic or sports activities. Passfield [the student] was engaged in such an activity at the time of the injury. While the Court liberally construes insurance policies in favor of the insured, the Court also strictly construes exclusions. This is an instance of the latter.” Id. Similarly, in the case before us, the exclusion applies specifically to bodily injury while participating in the Extreme Rampage. The exclusion does not require a causal link between the participation and the injury to apply. There is no genuine issue of fact that Chad Arnold was a participant in the race and that, as the complaint alleges, “during the course of the event, the decedent collapsed, consciously suffered for an undetermined amount of time, and died.”

5. Do the two exclusions create an ambiguity in the policy

Johnson further argues that the two exclusions create an ambiguity in the policy when read in conjunction with two coverage endorsements. Johnson claims that the “Combination Endorsement-Special Events” and [*22]  the “Limitation-Classification Endorsement” provide unfettered coverage while the two exclusions limit coverage, thus creating an ambiguity. Johnson’s brief gives no reference to the record to show where the endorsements are found, nor does it indicate when or how the trial court addressed this issue. CR 76.12(4)(c)(v) requires an appellate brief to contain “ample supportive references to the record and . . . a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” The purpose of this requirement “is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). “[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court.” Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). We are simply “without authority to review issues not raised in or decided by the trial court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). Nor is it the task of the appellate court to search the record for pertinent evidence “not pointed out by the parties in their briefs.” Baker v. Weinberg, 266 S.W.3d 827, 834 (Ky. App. 2008).

We recognize that the hearing on August 25, 2016, at which this issue may have been argued before the trial court, was not recorded. [*23]  Nonetheless, “when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.” Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).

6. Dismissal of all claims against Capitol.

Finally, Arnold argues that the trial court erred in dismissing all causes of action against Capitol. Arnold contends that the arguments before the trial court only concerned the applicability of the insurance policy, but never addressed the additional allegations in the complaint of negligence, consumer protection, unfair claims settlement practices, and fraud. Arnold does not explain what the grounds for Capitol’s liability on these claims would be if, as the trial court ruled, the “sponsor” exclusion is valid and Delre and THIA were not acting as Capitol’s agents. Under these circumstances, the trial court did not err in dismissing all claims against Capitol.

For the foregoing reasons, the order of the Fayette Circuit Court granting summary declaratory judgment to Capitol is affirmed.

MAZE, JUDGE, CONCURS.

THOMPSON, JUDGE, CONCURS IN RESULT ONLY.

Bibliography

CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE (COLLECTIVELY KNOWN AS “THE JOHNSON PARTIES”) BY AND THROUGH ASSIGNEE CASEY ARNOLD, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE;CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE, 2018 Ky. App. Unpub. LEXIS 447, 2018 WL 3090503, (Court of Appeals of Kentucky June 22, 2018, Rendered).


Older Nevada Supreme Court Decision holds releases are only proof of assumption of the risk if the release meets the assumption of risk requirements.

In Nevada to Assume the Risk, the plaintiff must voluntarily expose themselves to the risk and have actual knowledge of the risk.

Renaud v. 200 Convention Center Ltd. dba Flyaway, 102 Nev. 500; 728 P.2d 445; 1986 Nev. LEXIS 1623

State: Nevada, Supreme Court of Nevada

Plaintiff: Sherri Renaud

Defendant: Convention Center Ltd. dba Flyaway,

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 1986

Summary

Nevada Supreme Court holds a release is only proof of assumption of the risk and is NOT absolute proof. The defendant still must prove the plaintiff voluntarily assumed and have knowledge of the risk.

The good news is this decision has not been used in any additional Nevada decisions or a decision in any other state.

Facts

Plaintiff went to the defendant’s business wanting to experience a free fall simulator. Before participating, she signed a release.

After the plaintiff was injured and sued, the defendant filed a motion for summary judgment based on the release signed by the plaintiff. The motion was denied because it did not prove the plaintiff voluntarily assumed and understood the risks.

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

Under Nevada’s law, Assumption of the risk has a two-prong test to be proved.

First, there must have been voluntary exposure to the danger.

Second, there must have been actual knowledge of the risk assumed.

The plaintiff argued, and the Supreme Court agreed with her argument that she did not fully understand the risks of simulated free fall. That waiver of the facts, that can be interpreted in more than one way is enough to eliminate a motion for summary judgment.

So Now What?

Who knows why the Nevada Supreme Court made this decision. However, this shows the reason why you list the possible risks of your activity in your release. A pure legal document as a release can only be used as that, a pure legal release.

If the release is thrown out for any reason, if you have listed the risks of the activity in the release, you can argue it should be used to prove assumption of the risk.

Here when the court decides that a release is not longer a contract not to sue, but attempted proof of assumption of the risk, it becomes critical.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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





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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Renaud v. 200 Convention Center Ltd. dba Flyaway, 102 Nev. 500; 728 P.2d 445; 1986 Nev. LEXIS 1623

Renaud v. 200 Convention Center Ltd. dba Flyaway, 102 Nev. 500; 728 P.2d 445; 1986 Nev. LEXIS 1623

Sherri Renaud, Appellant, v. 200 Convention Center Ltd. dba Flyaway, Respondent

No. 16700

Supreme Court of Nevada

102 Nev. 500; 728 P.2d 445; 1986 Nev. LEXIS 1623

December 4, 1986, Filed

PRIOR HISTORY: [***1] Appeal from a summary judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant challenged a decision of the Eighth Judicial District Court, Clark County (Nevada), which granted respondent summary judgment in appellant’s negligence action.

OVERVIEW: Appellant filed a negligence claim against respondent for injuries she sustained while utilizing its free-fall simulator. Respondent had required that appellant sign a liability release form. The release purported to exculpate respondent of any liability for negligence that might occur while appellant was on its premises. The trial court granted respondent’s motion for summary judgment. On appeal, the court reversed and remanded. The court noted that appellant had denied appreciation of the risks associated with the free-fall simulator. The court held that, because there was a dispute as to whether appellant knowingly and voluntarily assumed the risks associated with the simulator, the matter was not appropriate for a determination as a matter of law.

OUTCOME: The court reversed the decision of the trial court, which granted respondent summary judgment in appellant’s negligence action, and remanded for further proceedings.

CORE TERMS: matter of law, simulator, summary judgment, actual knowledge, free-fall, genuine issues, fact finder, risks associated, voluntarily assumed, essential element, utilizing

COUNSEL: Albert D. Massi and Allen A. Cap, Las Vegas, for Appellant.

Dickerson, Miles, Pico & Mitchell and Shirley D. Lindsey, Las Vegas, for Respondent.

Jonathan C. Reed, Las Vegas, Nevada Trial Lawyers Association, Amicus Curiae.

JUDGES: Mowbray, C.J., Springer, J. Gunderson, J. Steffen, J. and Young, J.

OPINION BY: PER CURIAM

OPINION

[*500] [**446] Sherri Renaud filed a negligence claim against Flyaway for [*501] injuries she sustained while utilizing its free-fall simulator. Flyaway had required that Ms. Renaud sign a liability release form. The release purported to exculpate Flyaway of any liability for negligence that might occur while Ms. Renaud was on its premises. A motion for summary judgment was brought by Flyaway for the sole purpose of determining the validity of the signed release. The district court granted the motion, thereby barring further prosecution of the lawsuit. Because we agree with Ms. Renaud that genuine issues of fact exist, the order of the district court granting summary judgment in favor [***2] of Flyaway is reversed.

Discussion

It is well established that [HN1] summary judgment is appropriate only “where it is quite clear what the truth is, and where no genuine issue remains for trial.” In re Hilton Hotel, 101 Nev. 489, 492, 706 P.2d 137, 138 (1985). The moving party bears the burden of demonstrating that judgment as a matter of law is appropriate. Id. Additionally, upon review, all evidence is considered in a light most favorable to the non-moving party. Id.

Here, Flyaway (in its motion for summary judgment) successfully urged the trial court to accept the signed release as conclusive evidence that Ms. Renaud relieved Flyaway of liability for any injuries that she might sustain while utilizing the free-fall simulator. The determination that the release was valid indicated that Ms. Renaud assumed the risk of the injuries that she sustained. We do not agree that the release itself was sufficient to establish such a fact as a matter of law.

[HN2] Assumption of the risk is based on a theory of consent. In Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961), this court asserted that in order for a litigant to have assumed the risk, two requirements must be met. [***3] First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed. Id. at 73, 358 P.2d at 894. “A risk can be said to have been voluntarily assumed by a person only if it was known to him and he fully appreciated the danger.” Id. at 71-72, 358 P.2d at 894, quoting Papagni v. Purdue, 74 Nev. 32, 35, 321 P.2d 252, 253 (1958). As elucidated in Sierra, the essential element of the defense is the actual knowledge of the danger assumed. 77 Nev. at 71, 358 P.2d at 894.

Ms. Renaud denied appreciation of the risks associated with the free-fall simulator. Because actual knowledge of the risks assumed is an essential element of this defense, such a matter [*502] must be reserved for the fact finder. It is necessary to evaluate all the circumstances as they existed at the time the release was obtained. Considerations should include (but are not limited to) the following: the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing.

Thus, because there was a dispute as to whether Ms. Renaud [***4] knowingly and voluntarily assumed the risks associated with the simulator, the matter was not appropriate for a determination as a matter of law. E.g., Pacific Pools Constr. v. McClain’s Concrete, 101 Nev. 557, 706 P.2d at 849 (1985). See also O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla.Dist.Ct.App. 1982) (a signed liability waiver was deemed not sufficient as a matter of law to show that appellant subjectively understood the risks inherent in horseback riding and actually intended to assume those risks). Here, it is necessary for the fact finder to hear testimony and assess credibility. Accordingly, we reverse the ruling of the district court and remand the case for further proceedings consistent with this opinion. In light of our disposition, we decline to reach the other contentions raised on appeal.


Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.

Motions by the defendant eliminated a lot of the claims of the plaintiff; however, the reckless claims are always a pain used to negotiate a settlement. If the judge bought the idea, maybe the plaintiff can get the jury to buy the idea.

Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

State: Ohio, Court of Common Pleas, Summit County, Civil Division

Plaintiff: Michael A. Cantu, et al,

Defendant: Flytz Gymnastics, Inc., et al,

Plaintiff Claims: Negligence, willful, wanton and reckless action and Product Liability

Defendant Defenses: Release, Assumption of the Risk and the Statute of Repose

Holding: For the Defendant and the Plaintiff

Year: 2016

Summary

Recreation activities have moved indoors for more than 75 years. Now, all sorts of outdoor recreation activities have moved indoors and created additional activities and variations of those activities.

This decision concerns injuries received when the plaintiff jumped into a foam pit. The plaintiff and friends were there to practice skiing jumps. When the plaintiff landed he became a quadriplegic and sued for negligence, gross negligence and product liability claims.

Facts

The plaintiff and his friends decided to go to the defendant’s facility to practice skiing flips. The facility had a foam pit where the participants could land. While using a springboard to go over a vault the plaintiff landed head first in the pit sustaining a spinal cord injury rendering him a quadriplegic.

The plaintiff was a minor and had been driven to the facility by his mother. Both, he and his mother signed the release to participate in the activity. His mother claimed the form was long, and she did not read it. (The release was one page.)

Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long,….

The plaintiff and his parents admitted they had signed releases before, knew that the activities were risky and had participated in other risky activities and had been injured doing so.

The defendants filed a motion for summary judgment, and this is the decision of the court.

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

Ohio allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue and Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998).

The release in question described the risks of the activity and included the risks and resulted in the plaintiff suffered, “including permanent disability, paralysis and death, which may be caused.”

A release is a contract and under Ohio law to be valid a contract must be “clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware.” The court found this release met those requirements.

The plaintiffs argued the they were fraudulently induced to sign the release. A release signed by fraudulent inducement is voidable upon proof of the fraud. However, that fraud must be than saying you were misled if a reading of the contract would have shown that was not the case.

A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.”

The court found there was no fraud because the release itself was clear and there was no evidence from the plaintiff of any act or action that was fraudulent by the defendants.

The court granted the defendants motion for summary judgment to the negligence claims of the plaintiff.

The court also would have granted summary judgment to the defendants because the plaintiff assumed the risk of his injuries.

The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.”. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.”

The defense is not affected on whether or not the participant was able to appreciate the inherent dangers in the activity.

To defeat a primary assumption of risk defense the plaintiff must be able to prove the defendant’s conduct was reckless or intentional, and it does not matter if it is adults or minors organized or unorganized, supervised or unsupervised.

The plaintiff could not prove the actions of the defendant were reckless or intentional.

Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.

However, this part of the decision treads a narrow classification of the facts because the court found the plaintiff had pled enough facts for the reckless or intentional conduct claims to survive. The plaintiff pleaded and argued facts along with his expert witness “Defendant level of supervision and safety procedures, and whether, Defendant’s actions or inactions rose to the level of recklessness.”

The plaintiff’s expert argued the defendant failed to:

…ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution.

The final claim was a product liability claim arguing the foam pit was defective. The defendant argued the statute of repose applied.

The statute of repose is a statute that says if a claim against a product has not occurred in the first ten years after its creation, then no claims can be made after that period of time.

…no cause of action based on a product liability claim shall accrue against the manufacturer or sup-plier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another product.

The foam pit had been constructed in 2000, and the plaintiff’s injury occurred in 2011. Consequently, the ten-year statute of repose had run preventing the plaintiff’s product liability claim.

The court granted the defendants motion for summary judgment for all claims of the plaintiff except for the claim of recklessness, which could lead to punitive damages.

So Now What?

Foam pits, trampolines, free fall towers join climbing walls indoors as types of activities or training for outdoor recreation activities are popping up everywhere. What used to be confined to Olympic training venues can now be accessed on the corner with a credit card.

We are going to see more of these types of actions. Like any recreational activity, they advertise, make promises, and are still in a growing mode both in the number of locations and the learning process in how their liability will evolve.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

Michael A. Cantu, et al, Plaintiffs vs. Flytz Gymnastics, Inc., et al, Defendants.

CASE NO. CV-2014-01-0317

State of Ohio, Court OF Common Pleas, Summit County, Civil Division

2016 Ohio Misc. LEXIS 12186

June 2, 2016, Filed

CORE TERMS: summary judgment, reckless, wanton, willful, gymnastics, waiver form, moving party, nonmoving party, pit, releasee, liability claim, recreational activities, issue of material fact, genuine, foam, claims of negligence, repose, sports, genuine issue, initial burden, punitive damages, recklessness, inducement, indemnity, matter of law, fact remains, loss of consortium, inherent risks, assumption of risk, proprietor’

JUDGES: [*1] TAMMY O’BRIEN, JUDGE

OPINION BY: TAMMY O’BRIEN

OPINION

ORDER

The matters before the Court are, Defendant, Flytz Gymnastics, Inc.’s Motion for Summary Judgment filed on January 29, 2016, and, Defendant, John King’s Motion for Summary Judgment filed on January 29, 2016., Plaintiffs filed Separate Briefs in Opposition to these motions on March 4, 2016. Both, Defendants, Flytz Gymnastics, Inc. (“Flytz”) and John King (“King”), filed Reply briefs on March 21, 2016. For the reasons which follow, the Court GRANTS IN PART AND DENIES IN PART, Defendants’ Motions for Summary Judgment.

ANALYSIS

A. Facts:

The instant action arises out of an incident which occurred on August 22, 2011. On that day, Plaintiff Michael Cantu, sustained catastrophic personal injury when he attempted to use a spring board to go over a vault at Flytz Gymnastics and landed head first into a foam block pit. See, Plaintiffs’ Amended Complaint., Plaintiff sustained a spinal cord injury which left him a quadriplegic. See, Plaintiffs’ Amended Complaint.

Plaintiffs, Michael Cantu and his parents, have sued Flytz and its owner, King, alleging that they are liable for his injury., Plaintiffs have alleged that Flytz was negligent with respect to the “open [*2] gym night” attended by Michael Cantu and his friends and that this negligence resulted in Michael’s injury., Plaintiffs have further alleged that the conduct of Flytz and its employees, including King, was willful, wanton and reckless. In addition, Plaintiffs have brought a product liability claim against Flytz under R.C. 2307.71 et seq., Plaintiff’s parents, Aaron and Kristine Cantu, have also asserted a loss of consortium claim.

On the day in question, Michael was with a group of friends when one of them suggested that the group go to Flytz. Michael Cantu depo. at 57. This friend had been to Flytz before to practice his skiing flips. Id. at p. 43. Michael Cantu testified that the group intended to use the trampoline to practice ski tricks. Id. at 43, 63 and 93. Michael’s mother, Kristine Cantu, drove the group to Flytz.

Cantu and his friends were given Nonmember Release and Waiver Forms to read and sign. Because Michael was a minor, his mother signed the form on his behalf. Flytz Motion for Summary Judgment Exhibit B at pp. 32 and 33. Both Michael and his mother have acknowledged that neither of them read the entire form before Kristine signed it. Exhibit A at 69 and 103; Exhibit B at 34 and 35.

Subsequent [*3] to his injury, Kristine Cantu claimed that, had she read the release, she would never have allowed her son to participate in the activities. However, there is undisputed testimony from both Kristine and Michael Cantu that, throughout his life, Michael Cantu participated in many sports activities and many recreational activities, and that his mother signed release forms on his behalf in the past. Flytz Motion, Exhibit A at 18, 103; Flytz Motion, Exhibit Bat 15-16.

Plaintiff Michael Cantu, was involved in many sports and recreational activities and both he and his mother testified that they were aware that, inherent in those activities, there was always the risk of injury. Michael had previously participated in football, karate, volleyball and golf, and was interested in skiing, snowboarding and skateboarding. In fact, Plaintiff acknowledged he had sustained prior sports injuries. Flytz Motion, Exhibit B at 13-18.

Defendant Flytz moves for summary judgment on several bases which include the, Plaintiffs’ execution of a Release and Waiver form, the doctrine of primary assumption of the risk, lack of evidence of willful and wanton conduct by the, Defendants, and the statute of repose., Defendant [*4] King also moves for summary judgment.

B. Law and Analysis:

1. Standard.

In reviewing, Defendants’ Motions for Summary Judgment, the Court must consider the following: (1) whether there is no genuine issue of material fact to be litigated; (2) whether in viewing the evidence in a light most favorable to the non-moving party it appears that reasonable minds could come to but one conclusion; and (3) whether the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996); Wing v. Anchor Media, L.T.D., 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). If the Court finds that the non-moving party fails to make a sufficient showing on an essential element of the case with respect to which it has the burden of proof, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.E.2d 265 (1986).

Civ.R. 56(C) states the following, in part, in regards to summary judgment motions:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts

of the evidence in the pending case, and written stipulations of fact, if any timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Where a party seeks summary judgment on the ground that the nonmoving party cannot [*5] prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. Dresner, 75 Ohio St.3d at 293. The Dresner court continued, the moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. 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, if appropriate, shall be entered against the nonmoving party.

Banks v. Ross Incineration, 9th App. No. 98CA007132 (Dec. 15, 1999).

In this case, [*6] as demonstrated below, this Court finds that summary judgment is appropriate as to the, Plaintiffs’ claims of negligence, but finds that a genuine issue of material fact exists as to, Plaintiffs’ claims of reckless and wanton conduct and punitive damages.

2. Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement (“Release and Waiver”).

The Release and Waiver Form signed by, Plaintiff Kristine Cantu, is entitled, “Nonmember/Special Event/Birthday Party Activity, Release and Waiver Form.” Flytz Motion, Exhibit C. After the name of the person and contact information, the verbiage of the release and waiver form warns that “this activity involves risks of serious bodily injury, including permanent disability, paralysis and death.” Id.

Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Kristine Cantu depo. at 15-16. Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long, as is shown in part below:

Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement

In consideration [*7] of participating in the activities and programs at FLYTZ GYMNASTICS, INC., I represent that I understand the nature of this activity and that I am qualified, in good health, and in proper physical condition to participate in such activity. I acknowledge that if I believe event conditions are unsafe, I will immediately discontinue participation in this activity. I fully understand that this activity involves risks of serious bodily injury, including permanent disability, paralysis and death, which may be caused by my own actions, or inactions, those of others participating in the event, the condition in which the event takes place, or the negligence of the “releasees” named below, and that there may be other risks either not known to me or not readily foreseeable at this time and I fully accept and assume all risks and all responsibility for losses, cost and damages I incur as a result of my participation in the activity.

I hereby release, discharge, and covenant not to sue FLYTZ GYNMASTICS, INC., its respective administrators, directors, agents, officers, volunteers, and employees, other participants, any sponsors, advertisers and if applicable, owners and lessors of premises on which [*8] the activity takes place (each considered one of the “RELEASEES” herein) from all liability, claims, damages, losses or damages, on my account caused, or alleged to be caused, in whole, or in part, by the negligence of the “releasees” or otherwise, including negligent rescue operations and further agree that if, despite this release, waiver of liability and assumption of risk, I, or anyone on my behalf makes a claim against any of the Releasees, I will indemnify, save and hold harmless each of the Releasees from any loss, liability, damage or cost which may incur as a result of such claim.

I have read the RELEASE AND WAIVER OF LIABIITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, understand that I have given up substantial rights by signing it and have signed it freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law and agree that if any portion of this agreement is held to be invalid the balance, notwithstanding, shall continue in full force and effect.

The form specifically acknowledges that the activities and programs at Flytz involved “risks of serious bodily injury, [*9] including permanent disability, paralysis and death which may be caused” by the releasee’s actions or by the actions of others. It further identifies that “there may be risks either not known” or “not readily foreseeable” and that the releasee “accepts and assumes all risks for losses and damages.” Id. The form further releases claims of negligence by Flytz and includes a covenant not to sue, as well as indemnity and hold harmless provisions. The release was signed by Kristine Cantu on behalf of her son and indicated that she understood all the risks involved.

It is well established 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. See, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384; Zivich v. Mentor Soccer Club, Inc. 82 Ohio St.3d 367, 696 N.E.2d 201, 1998-Ohio-389. As noted by the Ninth District Court of Appeals, in order to be upheld, the contract must be clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist. 1997). In the instant action, the Release and Waiver Form signed by Kristine Cantu clearly meets these requirements.

Plaintiffs argue [*10] that the intake clerk, Stacey King, did not specifically advise Kristine that, by signing the forms, she would be absolving Flytz of liability for injuries sustained by her son, by his negligence or the negligence of others., Plaintiffs attempt to circumvent the Release and Waiver by alleging it is unenforceable because of fraud in the inducement. They argue that Kristine Cantu was induced to sign the form upon misrepresentations made by Stacey King.

The Court notes that, Plaintiffs have not pled fraud in their Amended Complaint. Even if, Plaintiffs can be found to have properly pled a claim of fraud in the inducement, a release obtained by fraudulent inducement is merely voidable upon proof of fraud. Holler v. horror Corp., (1990), 50 Ohio St.3d 10, 14 at ¶ 1 of the syllabus. “A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.” Haller, supra at 14. In the instant action, there is no evidence of fraud. The Court finds that, Plaintiffs were advised of [*11] serious inherent risks by virtue of the Release and Waiver Form. Accordingly, the Court GRANTS summary judgment on any claims of negligence.

3. Primary Assumption of Risk.

Even without the Release and Waiver, this Court would also find that the, Defendants are entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk.

The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.” Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” Aber v. Zurz, 9th Dist No. 23876, 2008-Ohio-778, ¶9. “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.” (Citations omitted.) Bastian v. McGannon, 9th Dist. Lorain No. 07CA009213, 2008-Ohio – l149, ¶11.

As noted by the Ohio Supreme Court, the determining fact in such cases is the conduct of the defendant, “not the [*12] participant’s or spectator’s ability or inability to appreciate the inherent dangers of the activity.” Gentry v. Craycraft, 101 Ohio St.3d 141, 802 N.E.2d 1116, 2004-Ohio-

379, ¶9. To survive a primary assumption of risk claim, the, Plaintiff must prove the defendant’s conduct was reckless or intentional. Furthermore, “the reckless/intentional standard of liability applies regardless of whether the activity was engaged in by children or adults, or was unorganized, supervised, or unsupervised.” Gentry, supra at ¶8.

In the instant action, there can be no dispute that, Plaintiff Michael Cantu was engaged in a recreational activity at the time of his injury. Likewise, there can be no dispute that a fall, like that sustained by Michael, is an inherent risk in gymnastics, particularly when one is using a springboard to go over a piece of equipment. As such, there can be no recovery by, Plaintiffs unless it can be shown that Flytz’s actions were either “reckless” or “intentional.” Gentry, supra at ¶6 quoting Marchetti, supra at syllabus; see also, Mainv. Gym X-Treme, 10th Dist. No. 11A0-643, 2102-Ohio-1315 (Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity [*13] unless the defendant acted recklessly or intentionally in causing the injuries. Id. at9.)

Accordingly, Defendants entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk. However, because the, Plaintiffs also claim that, Defendants acted in a reckless, willful and wanton manner, this does not end the analysis.

3. Reckless or Intentional Conduct and Punitive Damages.

The Supreme Court of Ohio has held that there can be no liability for injuries arising out of sporting or recreational activities unless the defendant was reckless or intentionally injured the, Plaintiff. Marchetti v. Kalish, 53 Ohio St.3d 95, 96-98, 559 N.E.2d 699 (1990). In this case, the Court finds that there are genuine issues of material fact as to whether or not, Defendants engaged in recklessness or willful or wanton conduct which resulted in injury to Michael Cantu.

All parties cite to testimony which appears to create genuine issues of material fact related to the instructions given by the, Defendants, Michael Cantu’s responding behavior, Defendant level of supervision and safety procedures, and whether, Defendants actions or inactions rose to the level of recklessness.

Plaintiffs have also cited the testimony [*14] of their expert, Gerald S. George, PhD. Dr. George reviewed industry rules and regulations and examined the facts and evidence in this case. Dr. George admitted that under “appropriate conditions, gymnastics is a reasonably safe and healthy activity for young people.” He, however, cautioned that “in the absence of appropriate safeguards, however, gymnastics becomes an unreasonably dangerous activity. Report at p. 2. Dr. George opines that, Defendants violated a number of safety regulations including “failing to ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution. [*15]

Upon this examination, the Court determines that genuine issues of material fact related to, Defendants’ alleged recklessness and/or willful and wanton conduct exist. Therefore, summary judgment is inappropriate on this issue. Because a question of fact remains on the issue of reckless and/or willful and wanton conduct, summary judgment on the issue of punitive damages is also denied.

4. Ohio’s Product Liability Statute, R.C. 2307.71et seq.

Defendants have also moved for summary judgment on the, Plaintiffs’ product liability claim related to the foam pit into which Michael Cantu fell., Defendants argue that this claim is barred by the statute of repose. This Court agrees.

The statute of repose applicable to claims of product liability, R.C. 2305.10 (C) (1) provides:

Except as provided in division (C)(2), (3), (4), (5), (6), and (7) of this section or in Section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another [*16] product.

The evidence demonstrated that the foam pit was constructed in 2000, and that there were no modifications to the pit at any time thereafter. John King depo. at 61, 67 and 85., Plaintiff’s accident occurred on August 22, 2011, 11 years after the installation of the foam pit. Pursuant to the specific language of R.C. 2305.10 (C) (1), Plaintiffs’ product liability claim is barred by the statute of repose.

From review of, Plaintiff’s brief, Plaintiffs appear to have abandoned this argument. Also, as discussed above, claims for negligence have been released by the, Plaintiffs. However, even barring that analysis, the statute of repose also applies to the, Plaintiffs’ product liability claim, and this claim is, therefore, barred.

5. Consortium.

The claims for loss of consortium by Michael Cantu’s parents, and punitive damages claim are directed at both, Defendants. A cause of action that is based upon loss of consortium is a derivative claim. Messmore v. Monarch Mach Tool Co., 11 Ohio App.3d 67 (9th Dist., 1983). As this Court has determined that, Plaintiff Michael Cantu is not entitled to recovery on negligence claims, the same applies to his parents. However, as genuine issues of material fact remain on the issues of reckless and/or willful and wanton conduct, as well [*17] as on punitive

damages, this Court denies summary judgment to both defendants on the loss of consortium and punitive damages claims.

CONCLUSION

Upon due consideration, after review of the briefs of the parties, the applicable law, exhibits, testimony and other evidence, the Court GRANTS, Defendants’ Motions for Summary Judgment as a matter of law on, Plaintiffs’ negligence claims. However, the Court finds that genuine issues of material fact remain as to whether, Defendants were reckless or acted in a willful or wanton manner. Accordingly the Court DENIES summary judgment as it pertains to, Plaintiffs’ claims of recklessness, and their claims for punitive damages.

The Final Pretrial previously schedule on July 22, 2016 at 8:30 AM, as well as the trial date of August 1, 2016, are confirmed.

IT IS SO ORDERED.

/s/ [Signature]

JUDGE TAMMY/O’BRIEN

Attorneys Terrance P. Gravens/Kimberly A. Brennan

Attorney Michael W. Czack


A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

The defendant one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also, laid out the risks of skiing quite broadly in its information to the plaintiff.

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

State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania

Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill

Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.

Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area

Defendant Defenses: Assumption of the Risk and Release

Holding:

Year: 2006

Summary

Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.

Facts

The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)

While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.

The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.

A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.

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

The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”

Under Pennsylvania law, a release to be valid must:

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

The court then went through the facts in this case to see if the requirements under the law were met.

The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”

The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”

The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.

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

The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.

The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.

The court found that icy conditions were an inherent risk of skiing in Pennsylvania.

Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.

So Now What?

It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.

Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.

In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Twenty years ago, the New Hampshire Supreme Court shows how you can trample common sense to find a release invalid.

Release was signed for a trail ride and plaintiff claimed she told guide his horse was getting ready to act out before it kicked her.

Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Brenda Wright

Defendant: Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 1995

Summary

Twenty-year-old New Hampshire Supreme Court decisions shows how convoluted a court can get when it decides a release will not be enforced. Court held the language in the release was confusing. However, to get that point the court had to not read the release I think.

Facts

The plaintiff signed up for a trail ride with the defendant. While on the ride she was kicked in the leg by another horse. She sued. On appeal she argued that her guide had failed to respond to indications that his horse, the one that kicked the plaintiff, was about to “act out.”

While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging that her tour guide had failed to respond to indications that his horse was about to “act out.”

[Every time I’ve been bit or kicked by a horse there was no warning. Sure, if a horse’s ears go back, there is a warning, but most times, horse 1, Moss 0. I wish there were indications that a horse was going to act out.]

Prior to suing she signed a release. The trial court dismissed her claim because of the release. She appealed.

New Hampshire has a two-tier court system. The trial court is called the Superior Court and appeals from the Superior Court are appealed to the New Hampshire Supreme Court. This appeal was decided by the New Hampshire Supreme Court.

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

The entire issue before the court was “whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence.”

The defendant argued the release “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding’“.

The Supreme Court looked at this decision in its analysis in a slightly different way.

This court will not enforce an exculpatory contract that contravenes public policy. “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.”

“Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.”

The court then read the release to determine if a reasonable person would have known about the exculpatory clause in the release. The court then worked hard to find a reasonable person would not.

A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” We will assess the clarity of the con-tract by evaluating it as a whole, not by examining isolated words and phrases.

We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case.

The language the court examined was in all caps so the language stood out from the surrounding language. However, the court stated that when the entire agreement was read, the all cap language was unclear. (?) The court’s determination that the clause was not clear was based on the word therefore.

In this case, the term “therefore” is significant. A common definition of “therefore” is “for that rea-son: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced by the term “therefore” cannot be understood without reading the antecedent language.

The court found additional language that it held confused the meaning of the release. The court concluded its analysis with this statement.

The exculpatory contract lacks a straightforward statement of the defendant’s intent to avoid liability for its failure to use reasonable care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions.

There was a dissent by two justices. Both who found the majority’s analysis was just a little ridiculous.

So Now What?

Sometimes your release is not going to win. In those cases, you are going to rely on your insurance company. In this case, the court worked hard to find little ways it could justify its desire to not support the release.

Possibly, this release might have had a better chance with a simple clear statement that by signing the release the signor could not sue for negligence. This release reads like it was written by an attorney training to kill trees rather than write documents for consumers.

But!

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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





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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

Brenda Wright v. Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center

No. 94-266

SUPREME COURT OF NEW HAMPSHIRE

140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

August 22, 1995, Decided

SUBSEQUENT HISTORY: [***1] Released for Publication September 7, 1995.

PRIOR HISTORY: Merrimack County.

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff injured brought a negligence action against defendant tour company after being hurt while on a horseback riding tour. The injured appealed the decision of the Superior Court of Merrimack County (New Hampshire), which granted the tour company’s motion for summary judgment.

OVERVIEW: Before going horseback riding on the tour, the injured signed an exculpatory agreement that released the tour company from liability as a result of various occurrences. The tour company successfully argued in the trial court that the exculpatory agreement barred the injured’s suit. The court found that the issue of whether the injured understood the agreement presented an issue of fact. In assessing the clarity of the contract by evaluating it as a whole, the court found that the contract structure and organization obscured the exculpatory clauses and did not clearly relieve the tour company of responsibility for the sort of negligence at issue in the case. The court reasoned that one clause was understandable to relate to the inherent dangers of horseback riding and liability for injures that occurred for that reason. However, the court found that receiving an injury that would not have occurred but for a tour guide’s negligence was not an inherent danger. Because the contract did not put the injured on clear notice, the tour company was not entitled to summary judgment.

OUTCOME: The judgment was reversed, and the case was remanded.

CORE TERMS: horse, exculpatory, horseback riding, reasonable person, exculpatory provision, personal injury, own negligence, summary judgment, public policy, animal, exculpatory clauses, issue of fact, opportunity to prove, contravenes, inclusive, obscured, verb, tour guide, qualifying, notice, ridden, matter of law, entitled to judgment, contract language, misunderstanding, unabridged, exhaustive, quotations, prefaced, genuine

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants

Civil Procedure > Summary Judgment > Opposition > General Overview

Civil Procedure > Summary Judgment > Standards > Genuine Disputes

[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Torts > Negligence > Defenses > Exculpatory Clauses > Interpretation

Torts > Procedure > Settlements > Releases > Construction & Interpretation

[HN2] The court will not enforce an exculpatory contract that contravenes public policy. Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision. Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.

Contracts Law > Contract Conditions & Provisions > Indemnity

[HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Contracts Law > Types of Contracts > Releases

Torts > Procedure > Settlements > Releases > General Overview

[HN4] The court examines the language of the release to determine whether a reasonable person in the plaintiff’s position would have known of the exculpatory provision. A reasonable person would understand the provision if its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. The court assesses the clarity of the contract by evaluating it as a whole, not by examining isolated words and phrases.

HEADNOTES

1. Contracts–Liability for Negligence–Public Policy

New Hampshire Supreme Court will not enforce an exculpatory contract that contravenes public policy.

2. Contracts–Construction–Ambiguity

The plaintiff’s understanding of the release presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.

3. Contracts–Liability for Negligence–Exculpatory Provision

A reasonable person would “understand” an exculpatory provision if its language clearly and specifically indicated the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.

4. Contracts–Liability for Negligence–Exculpatory Provision

Release language should be plain; a careful reading should not be necessary to divine the defendant’s intent.

5. Contracts–Liability for Negligence–Exculpatory Provision

The release language fails where it is obscured by qualifying terms and phrases and doesn’t put the plaintiff on clear notice.

COUNSEL: Craig, Wenners, Craig & Casinghino, P.A., of Manchester (Gary L. Casinghino and Gemma M. Dreher on the brief, and Mr. Casinghino orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Gregory D. H. Jones and Joseph M. McDonough, III, on the brief, and Mr. Jones orally), for the defendant.

JUDGES: JOHNSON, J.; THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.

OPINION BY: JOHNSON

OPINION

[*167] [**1341] JOHNSON, J. The question presented is whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence. The Superior Court (Manias, J.) found that the signed release barred the plaintiff’s negligence claim and granted the defendant’s motion for summary judgment. We reverse.

Before embarking on a horseback riding tour at the Loon Mountain Equestrian Center, owned and operated by the defendant, the plaintiff was asked to read, complete, and sign the following exculpatory [***2] agreement:

I accept for use, as is, the animals listed on this form and accept full responsibility for its care while it is in my possession. I have made no misrepresentation to Loon Mountain regarding my name, address or age. I agree to hold harmless and indemnify Loon Mountain Recreation Corporation and its owners, agents and employees for any loss or damage, including any that result from claims for personal injury or property damage related to the use of this animal.

I understand and am aware that horseback riding is a HAZARDOUS ACTIVITY. I understand that the above activity and the use of horses involves a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death from the use of this animal while participating in this activity.

I understand that it is not possible to predict every situation and condition of the terrain a horse will be ridden on; therefore, it is impossible to guarantee the horse I am riding will react safely in all riding situations. [*168]

I realize that it is mandatory that I wear a helmet at all times while horseback riding, and that I will obey all trail signs [***3] and remain only on open trails.

I therefore release Loon Mountain Recreation Corporation, its owners, agents and employees FROM ANY AND ALL LIABILITY FOR DAMAGES AND PERSONAL INJURY TO MYSELF OR ANY PERSON OR PROPERTY RESULTING FROM THE NEGLIGENCE OF LOON MOUNTAIN RECREATION CORPORATION TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any and all damages or injury of any kind which may result. (PLEASE SIGN: Brenda Wright/s)

I agree that there have been no warranties, expressed or implied, which have been made to me which extend beyond the description of the equipment listed on this form. I the undersigned, acknowledge that I have carefully read this agreement and release of liability, and I understand its contents. I understand that my signature below expressly waives any rights I have to sue Loon Mountain Recreation Corporation for injuries and damages.

The plaintiff signed this agreement after the fifth paragraph and at the bottom.

While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging [***4] that her tour guide had failed to respond to indications that his horse was about to “act out.” The defendant argued that the exculpatory contract barred the plaintiff’s suit and moved for summary judgment. The Superior Court (Manias, J.) granted its motion, and this appeal followed.

[**1342] On appeal, the defendant argues that we should uphold the trial court’s grant of summary judgment because the contract “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding.”

[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory [*169] evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.


Phillips v. Verax [***5] Corp., 138 N.H. 240, 243, 637 A.2d 906, 909 (1994) (brackets, ellipses, and quotations omitted).

[HN2] This court will not enforce an exculpatory contract that contravenes public policy. Audley v. Melton, 138 N.H.. 416, 418, 640 A.2d 777, 779 (1994). “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.” Barnes v. N.H. Karting Assoc., 128 N.H. 102, 107, 509 A.2d 151, 154 (1986). “Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” Id.

The plaintiff does not argue that the exculpatory contract contravenes public policy. Accordingly, we determine only whether “the plaintiff understood the import of the agreement,” and if not, whether “a reasonable person in [her] position would have known of the exculpatory provision.” Id.

The parties dispute whether the plaintiff understood the agreement to release the defendant from [***6] liability for its own negligence. [HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable. See Phillips, 138 N.H. at 243, 637 A.2d at 909; Barnes, 128 N.H. at 107, 509 A.2d at 154.

[HN4] We therefore examine the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107, 509 A.2d at 154; cf. Raudonis v. Ins. Co. of North America, 137 N.H. 57, 59, 623 A.2d 746, 747 (1993) (interpretation of insurance contract language a question of law; we construe terms as would reasonable person in insured’s position). A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” Barnes, 128 N.H. at 107, 509 A.2d at 154. We will assess the clarity of the contract by evaluating it as a whole, not by examining isolated [*170] words and phrases. See Chadwick v. CSI, Ltd., [***7] 137 N.H. 515, 524, 629 A.2d 820, 826 (1993).

We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case. See Barnes, 128 N.H. at 107, 509 A.2d at 154.

The defendant emphasizes the language of the agreement’s fifth paragraph, which states: “I therefore release [the defendant] from ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any . . . injury of any kind which may result.” (Emphasis added.) We find that when this clause is read within the [**1343] context of the entire agreement, its meaning is less than clear.

In this case, the term “therefore” is significant. A common definition of “therefore” is “for that reason: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced [***8] by the term “therefore” cannot be understood without reading the antecedent language.

The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that reason.” Being kicked by a horse is a danger inherent to horseback riding; receiving an injury that would not have occurred but for a tour guide’s negligence, however, is not.

The exculpatory phrase in the fifth paragraph is further clouded by the qualifying language that follows. Pursuant to the contract, the defendant is released from liability for its negligence “to include negligence in selection, adjustment or any maintenance of any horse.” If we parse these terms, they do not necessarily restrict the defendant’s release to liability for negligent selection, adjustment, or maintenance of any horse. The superfluity of the terms, however, serves to obscure rather than clarify. Moreover, one sense of the word “inclusive” is “covering or intended to cover all items . . . .” Webster’s, [***9] supra at 1143. A reasonable person reading the clause thus might conclude that the agreement relieved the defendant of responsibility for the enumerated types of negligence only.

[*171] Whether the tour guide’s failure to control his horse constitutes “the negligent . . . maintenance of any horse,” is unclear. Webster’s gives several definitions for the word “maintain,” the two most relevant being: (1) “to keep in a state of repair, efficiency, or validity: preserve from failure or decline” and (2) “to provide for: bear the expense of: SUPPORT.” Webster’s, supra at 1362. When read in the context of selection and adjustment, therefore, a reasonable person in the position of the plaintiff might understand “the negligent . . . maintenance of any horse” to relate to negligent upkeep rather than control.

The contract is also unclear with respect to injuries involving horses not ridden by the plaintiff. The first, second, and third paragraphs emphasize only the horse that the plaintiff “accept[s] for use.” We reject the defendant’s argument that the phrase “use of this animal,” used in the first and second paragraphs, “is merely an alternative expression for the activity of ‘horseback [***10] riding.'” We also reject the defendant’s contention that the phrase “use of this animal” does not limit the contract’s application to injuries involving the plaintiff’s horse because “[a] careful reading . . . reveals that it is part of a clause modifying plaintiff’s agreement to ‘hold harmless and indemnify [the defendant] for any loss or damage. . . .'” The Barnes test requires that release language be plain; a careful reading should not be necessary to divine the defendant’s intent.

In Audley, we concluded:

Quite simply, the general release language does not satisfy the Barnes requirement that the contract must clearly state that the defendant is not responsible for the consequences of his negligence. The release fails in this respect not because it neglects to use the word ‘negligence’ or any other special terms; instead it fails because no particular attention is called to the notion of releasing the defendant from liability for his own negligence. The general language in the context of the release simply did not put the plaintiff on clear notice of such intent.


Audley, 138 N.H. at 419, 640 A.2d at 779 (quotations and citations omitted). [***11] Whereas the release language in Audley failed because it was too general, the release language in the present case fails because it is obscured by qualifying terms and phrases. The cases are similar, however, because neither contract put the plaintiff “on clear notice,” id.

The exculpatory contract lacks a straightforward statement of the defendant’s intent [**1344] to avoid liability for its failure to use reasonable [*172] care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions. The defendant was not entitled to judgment as a matter of law.

Reversed and remanded.

THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.

DISSENT BY: THAYER

DISSENT

THAYER, J., dissenting: I would uphold the trial court’s grant of summary judgment because the exculpatory contract explicitly indicated an intent to release the defendant from liability for its own negligence. The contract in question purports to release the defendant from “ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE [***12] OF ANY HORSE.” The language clearly indicates an intent to release the defendant from liability for its own negligence. I agree with the majority that the use of the word “therefore” restricts the release to negligence associated with the inherent hazards of horseback riding. I do not agree, however, that the negligence alleged is not such a risk. The plaintiff alleged that the defendant’s employee had failed to properly control his horse, and that as a result, the horse “acted out.” Controlling a horse is an essential part of horseback riding. The possibility that someone will fail to exercise the proper control would seem to fall squarely within the category of dangers inherent in the sport.

The majority bases its holding in part on its interpretation of the phrase “to include.” In holding that the list prefaced by the words “to include” is meant to be exhaustive, the majority relies on a definition of the word “inclusive.” Such reliance is misplaced. The contract used the word “include” as a verb. The primary relevant definition of that word is “to place, list, or rate as a part or component of a whole or a larger group, class, or aggregate.” Webster’s Third New International [***13] Dictionary 1143 (unabridged ed. 1961) (Webster’s). “Inclusive,” however, is an adjective and its definition differs from the verb form of the word. See In re Dumaine, 135 N.H. 103, 107, 600 A.2d 127, 129 (1991). The use of the verb form of the word indicates that the listed types of negligence are “component[s] of a whole or a larger group,” Webster’s, supra, and that the list was not exhaustive.

The appropriate question, therefore, is whether the negligence alleged in this case is of the same type as those listed. The plaintiff [*173] alleges that the defendant’s employee failed to properly control his mount. This would seem to fall squarely within the type of negligence defined by the contract. That the horse causing the injury was not ridden by the plaintiff is irrelevant. The contract releases the defendant for negligence resulting from “the use of horses” and specifically from “NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE.” (Emphasis added.) While the contract does refer to the plaintiff’s horse on a number of occasions, it also refers to horses generally and to “any” horse. This language cannot be read to restrict the defendant’s release [***14] solely to injuries caused by the plaintiff’s horse. I disagree with the majority’s reading of the exculpatory contract. Therefore, I respectfully dissent.

BROCK, C.J., joins in the dissent.


Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.

The terrain off of the trail was different than normally found at a ski area. A 3-4 drop off into a pile of rocks. However, the risk is skiing off the trail, not what you run into when you do.

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Quan Vu and May Siew

Defendant: Ski Liberty Operating Corp., et. al.

Plaintiff Claims: Negligence and Loss of Consortium

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The definition of an inherent risk when skiing is not what causes the injury, only the risk that led to the injury. Under Pennsylvania law, there is a broad definition of inherent risks and this case was dismissed because the plaintiff assumed those inherent risks, and the defendant did not owe a duty to protect him from those risks.

Facts

The plaintiff was an experienced skier, who had been skiing for twenty years. He was skiing behind his daughter at the defendant’s ski area. A snowboarder came close to the plaintiff or hit the plaintiff sending or causing him to ski off the trail. He went off the trail, over a 3-4 drop and landed in a pile of rocks.

…Mr. Vu does not recall much detail about his accident. Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. The last thing that Mr. Vu remembered was skiing with his daughter.

He sued the defendant ski area because it was:

…negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition.

The court granted the defendants motion for summary judgment.

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

The decision was based on the Pennsylvania Skier’s Responsibility Act. The court had to decide if the risks encountered by the plaintiff were inherent risks of skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing. As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”

If there is no duty, then there can be no negligence.

Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.

Pennsylvania has a two-part test to determine if the defendant owed the plaintiff a duty.

First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of down-hill skiing.” If so, then summary judgment must be awarded against the plaintiff as a matter of law.

The first test was met; the plaintiff was skiing at the time of his accident.

The court then had to determine if the risks the plaintiff encountered were inherent to skiing. Under Pennsylvania law, inherent risks “are those that are “common, frequent, and expected” in downhill skiing.”

The plaintiff argued that because the plaintiff was no specifically aware of the risk of the 3-4-foot drop off and the pile of rocks, he could not assume the risk.

Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply.

In many cases, assumption of the risk would not be a defense if the injured plaintiff had no specific knowledge of the risk. However, it was not the case here under the statute. It did not matter if the Plaintiff had specific knowledge of the risk or a general knowledge of the risks of skiing, he assumed those risks.

The court then looked at the facts and found there were two circumstances that gave rise to the plaintiff’s injuries, veering to avoid a collision and skiing over the drop off.

The first is an inherent risk of skiing in Pennsylvania.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with an-other skier is one of the common, frequent and expected risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.

The next issue was whether skiing over the drop off into a pile of rocks was an inherent risk of skiing. Here again, the court found skiing off the trail, no matter what you may encounter once you are off the trail, is an inherent risk of skiing. The court backed its point up quite interestingly.

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis.

The court found the defendant did not owe the plaintiff a duty because he assumed the risks of his injury under the Pennsylvania Skier’s Responsibility Act.

So Now What?

Actually, an easy case. Easy under Pennsylvania law because of the Pennsylvania Supreme Courts interpretation of the Pennsylvania Skier’s Responsibility Act. When skiing in Pennsylvania collisions with other skiers or boarders are an inherent risk of skiing and skiing off the trail is also.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

     

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Quan Vu and May Siew, Plaintiffs, v. Ski Liberty Operating Corp., et. al., Defendants,

1:16-cv-2170

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2018 U.S. Dist. LEXIS 49013

March 26, 2018, Decided

CORE TERMS: skiing, trail, edge, downhill, ski, skier, snowboarder, sport, inherent risk, slope, collision, rocks, summary judgment, drop-off, att, daughter, skied, snow, pile, foot, lift ticket, knee-jerk, genuine, resort, Skier’s Responsibility Act, matter of law, specific risk, experienced, elevation, veering

COUNSEL: [*1] For Quan VU, May Siew, Plaintiffs: D. Aaron Rihn, Mark D. Troyan, LEAD ATTORNEYS, Robert Peirce & Associates, P.C., Pittsburgh, PA USA.

For Ski Liberty Operating Corp. doing business as Liberty Mountain Resort, Defendant: Anthony W. Hinkle, Snow Time, Inc., Cipriani & Werner, P.C., Philadelphia, PA, USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Plaintiffs: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Defendants: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

JUDGES: Hon. John E. Jones III, United States District Judge.

OPINION BY: John E. Jones III

OPINION

MEMORANDUM

Plaintiffs are Quan Vu and his wife, May Siew. (“Plaintiffs”). Defendants are Ski Liberty Operating Corp. and Snow Time, Inc., operating as Liberty Mountain Resort. (“Defendants”). This action arises out of a skiing accident at Liberty Mountain that left Mr. Vu severely injured. The complaint brings one count of negligence on behalf of Mr. Vu and one count of loss of consortium on behalf of Mrs. Siew, both alleging that the accident was caused by the Defendants’ negligence in maintaining the ski slope and failing to warn Mr. Vu of [*2] the slope’s hazardous condition. (Doc. 1). Presently pending before the Court is the Defendants’ motion for summary judgment. (the “Motion”) (Doc. 36). The Motion has been fully briefed and is therefore ripe for our review. (Docs. 38, 42, 43). For the reasons that follow, the Motion shall be granted.

I. BACKGROUND

On January 23, 2015, Mr. Vu was downhill skiing with his daughter at Liberty Mountain. (Doc. 41, ¶ 24). Mr. Vu was following his daughter from behind as they skied down the Lover Heavenly trail, a blue square intermediate hill, when he had his accident. (Id. at ¶¶ 24-25). Due to his injuries, Mr. Vu does not recall much detail about his accident. (Doc. 37, ¶ 11). Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” (Doc. 37, att. 1, pp. 65-66). However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. (Id. at pp. 65-66). The last thing that Mr. Vu remembered [*3] was skiing with his daughter. (Id. at p. 66).

Mr. Vu’s daughter testified: “I saw someone get really close to him and he was trying to avoid them and it was either ramming into him, the snowboarder, or person who was trying to get really close to him, or veering off path.” (Doc. 42, att. 2, p. 8). “He — there was someone trying to kind of get really close to him. And he didn’t want to ram into him. So he — I don’t really understand — know what happened. But he tried to avoid it. And there was like a big ditch or something there. And he tried to stop and tried to avoid the person who was trying to cut him off.” (Id.). “My dad was — the snowboarder was — my dad was kind of like the ham in the middle of a sandwich. Between the end of the trail, the edge of the trail and the snowboarder.” (Id. at p. 9). “I just felt that the snowboarder was getting quite close to my dad and I didn’t want a collision to happen or the snowboarder to ram into my dad.” (Id. at p. 10).

Ultimately, whether he did so intentionally or not, Mr. Vu skied off of the edge of the trail and suffered catastrophic injuries. There was a drop-off at the edge of the ski trail of about three to four feet. (Doc. 41, ¶ 32). Below that drop-off was a large pile [*4] of rocks. (Id. at ¶ 31). Mr. Vu skied off of the edge of the trail, off of the embankment, and landed on the pile of rocks. (Doc. 37, ¶ 11).

Mr. Vu was an experienced skier at the time of his accident. He had skied for over twenty years and was capable of skiing black diamond slopes. (Id. at P 6). Mr. Vu testified that he was familiar with the Skier’s Responsibility Code and understood that he was responsible for skiing in control and in such a manner that he could stop or avoid other skiers. (Id.). Mr. Vu also testified that he understood that skiing is a dangerous sport and that he could get hurt if he skied out of control or if he fell. (Id.).

On the day of his accident, Mr. Vu’s wife purchased his Liberty Mountain Resort Lift Ticket. (Id. at ¶ 18). The back of the lift ticket reads as follows:

PLEASE READ

Acceptance of this ticket constitutes a contract. The conditions of the contract are stated on this ticket & will prevent or restrict your ability to sue Liberty Mountain Resort. If you do not agree with these conditions, then do not use the facility. Snowsports in their various forms, including the use of lifts, are dangerous sports with inherent and other risks. These risks include but are [*5] not limited to: variations in snow, steepness & terrain, ice & icy conditions, moguls, rocks, trees & other forms of forest growth or debris (above or below the surface), bare spots, lift towers, utility lines & poles, fencing or lack of fencing, snowmaking & snowgrooming equipment & component parts, on-snow vehicles & other forms of natural or man-made obstacles, and terrain features on or off designated trails as well as collisions with equipment, obstacles or other snowsport participants. Trail conditions vary constantly because of weather changes and use. All the inherent and other risks involved present the risk of permanent catastrophic injury or death. In consideration of using Liberty’s facilities, the purchaser or user of this ticket agrees to accept the risks of snowsports and understands and agrees that they are hazardous and further agrees NOT TO SUE Ski Liberty Operating Corp., its owners or employees if injured while using the facilities regardless of any negligence, including gross negligence, on the part of the resort, and/or its employees or agents. The purchaser or user of this ticket voluntarily assumes the risk of injury while participating in the sport, and agrees [*6] to report all injuries before leaving the resort . . .

(Doc. 37, Ex. D) (emphasis in original). Though Mr. Vu was uncertain if he read the language on the lift ticket on the day of his accident, he testified that he had read it at some point prior to his accident. (Doc. 37, ¶ 20). At his deposition, Mr. Vu was asked to read portions of the lift ticket and he had trouble doing so because the font was too small. (Doc. 37, att. 1, p. 70).

Mr. Vu and his wife initiated this action with the filing of a complaint on October 27, 2016. (Doc. 1). Plaintiffs allege that Defendants were negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition. Defendants filed the instant motion for summary judgment on January 31, 2018. (Doc. 36).

I II. LEGAL STANDARD

Summary judgment is appropriate if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute [*7] is “genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is “material” only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P. 56(c)(1).

A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the [*8] mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).

III. DISCUSSION

Defendants move for summary judgment on two legal bases. First, Defendants argue that Plaintiffs’ claims are barred as a matter of law because Mr. Vu’s injuries were caused by an inherent risk of skiing. Second, Defendants argue that Plaintiffs’ claims are barred by the exculpatory release language contained on the Liberty Mountain lift ticket. Because we find that Mr. Vu’s injuries arose out of risks inherent to the sport of downhill skiing, we hold that Defendants are entitled to summary judgment as a matter of law without even considering the exculpatory release language of the lift ticket.

The material facts surrounding Mr. Vu’s accident are not in dispute. Though Mr. Vu and his daughter are unclear on the specifics, it is undisputed that Mr. Vu ended up skiing off of the trail, over a drop-off, and into a pile of rocks. (Doc. 37, ¶ 11). Mr. Vu testified that a snowboarder was getting too close to him and his “knee-jerk” reaction was to veer to avoid a collision, causing him [*9] to ski off of the trail and over the embankment. (Doc. 37, att. 1, pp. 65-66). Mr. Vu’s daughter also testified that her father’s accident occurred when he tried to avoid a collision with a snowboarder. (Doc. 42, att. 2, p. 8). While Defendants argumentatively refer to this person as the “phantom snowboarder” and question the credibility of the testimony, for purposes of this Motion we can take Plaintiffs’ facts as true and assume that Mr. Vu skied off of the trail, either intentionally or as a result of a knee-jerk reaction, to avoid colliding with a snowboarder. Even so, summary judgment must be granted in favor of the Defendants because Mr. Vu’s accident occurred as a result of inherent risks of downhill skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing.” 42 Pa. C.S. § 7102(c). As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a [*10] place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.

In Hughes v. Seven Springs Farm, Inc., the Supreme Court of Pennsylvania established a two-part test for courts to use to determine whether a plaintiff’s claims are barred by the no duty rule of the Skier’s Responsibility Act. 762 A.2d 339, 343 (2000). “First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” Id. at 344. “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of downhill skiing.” Id. If so, then summary judgment must be awarded against the plaintiff as a matter of law. Id. In the case at-bar, there can be no dispute that Mr. Vu was engaged in the sport of downhill skiing at the time of his accident. The salient question, therefore, becomes whether veering off-trail and over a drop-off into a pile [*11] of rocks to avoid a collision with a snowboarder are inherent risks of downhill skiing. If those risks are inherent to skiing, then Defendants had no duty to protect Mr. Vu. Chepkevich, 2 A.3d at 1186. If those risks are not inherent, traditional principles of negligence apply and we must determine what duty the Defendants owed Mr. Vu, whether the Defendants breached that duty, and whether the breach caused Mr. Vu’s injuries.

We begin with a discussion of what it means for a risk to be “inherent.” The Hughes court explained that “inherent” risks are those that are “common, frequent, and expected” in downhill skiing. Id. In interpreting risks, the Supreme Court of Pennsylvania has instructed that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Chepkevich, 2 A.3d at 1187-88. “Accordingly, courts have rejected attempts by plaintiffs to define the injury producing risks in very a specific and narrow manner.” Cole v. Camelback Mountain Ski Resort, 2017 WL 4621786, at *4 (M.D. Pa. Oct. 16, 2017) (Mariani, J.). For example, the Supreme Court of Pennsylvania in Chepkevich rejected the plaintiff’s argument that she did not assume the “specific [*12] risk” involved, looking instead to the “general risk” that gave rise to the accident. 2 A.3d at 1188. A number of courts have addressed the scope of the Skier’s Responsibility Act and have concluded that some of the inherent risks of downhill skiing include: lack of netting, improper course plotting, or soft snow1; skiing off trail and striking a tree2; collisions with unpadded snow equipment poles3; striking a fence on the edge of the trail4; and collisions with other skiers or snowboarders.5

1 Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir. 2008).

2 Id.

3 Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983).

4 Cole, 2017 WL 4621786, at *5.

5 Hughes, 762 A.2d 339.

Before addressing the risks that Mr. Vu encountered, we must address Plaintiffs’ initial argument that the assumption of the risk doctrine is inapplicable. Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8) (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply. (Id. at pp. 9-13). For support of this argument, Plaintiffs cite several cases that are materially distinct from the case at-bar. First, Plaintiffs [*13] quote Barillari v. Ski Shawnee, Inc., “[i]t is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks.” 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013). Importantly, the court made this statement when analyzing the doctrine of voluntary assumption of the risk after determining that the Skier’s Responsibility Act was not applicable because the plaintiff was not engaged in the sport of downhill skiing at the time of the accident. Id. at 561. The instruction of this quote is inapplicable to our consideration of the no duty doctrine of assumption of the risk.

Next, Plaintiffs rely heavily on Bolyard v. Wallenpaupack Lake Estates, Inc., 2012 WL 629391(M.D. Pa. Feb. 27, 2012) (Caputo, J.). In Bolyard, the plaintiff sued the defendant for negligence after sustaining injuries while snow tubing on the defendant’s property. Id. at *1. The court recognized that while the plaintiff had “general knowledge” of the dangers of snow tubing on the hill, she did not assume the risk because “there is no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Id. at *6. Plaintiffs argue that “[s]imilar to the patron in Bolyard,” Mr. Vu was only generally aware of the risks he could suffer while skiing and thus assumption of the risk is inapplicable. (Doc. [*14] 42, p. 8). We disagree.

Notably, the slope in Bolyard was an old slope that was not currently in operation. 2012 WL 629391, at *1. The court used principles of negligence as applicable to landowners and licensees to determine the duty owed to the plaintiff and, consequently, considered the doctrine of voluntary assumption of the risk as a defense. Id. at **3-6. Analyzing the present action under the no duty rule, we do not consider the defense of voluntary assumption of the risk; instead, we must determine whether Mr. Vu’s injuries arose out of an inherent risk of the sport of skiing such that the Defendants had no duty at all. Pursuant to Hughes and the Skier’s Responsibility Act, there is no duty to protect a skier from the inherent risks of skiing and therefore, “when inherent risks are involved, negligence principles are irrelevant.” Id.

Finally, Plaintiffs cite Perez v. Great Wolf Lodge of the Poconos LLC,6
Staub v. Toy Factory, Inc.,
7
Jones v. Three Rivers Mgmt. Corp,
8 and Telega v. Sec. Bureau, Inc.9 in support of their position that assumption of the risk does not apply because Mr. Vu did not appreciate the specific risks that caused his accident. To start, none of these cases address the Skier’s Responsibility [*15] Act. These cases discuss appreciation of specific risk only after determining that the no duty rule was inapplicable because the risk encountered was not inherent. Again, we reiterate that “[n]egligence principles are irrelevant where the ‘no duty’ rule applies.” Lin v. Spring Mountain Adventures, Inc., 2010 WL 5257648, at *7 (E.D. Pa. Dec. 23, 2010). Whether the no duty rule applies turns on whether Mr. Vu’s particular injuries arose out of risks inherent in the sport of skiing — an issue that is not dependent on a plaintiff’s subjective awareness of those specific risks.

6 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (Mariani, J.).

7 749 A.2d 522, (Pa. Super. 2000).

8 483 Pa. 75, 85, 394 A.2d 546, 551 (1978).

9 719 A.2d 372, 376 (Pa. Super. Ct. 1998).

We now turn to the risks involved in Mr. Vu’s accident. The facts reveal two circumstances that gave rise to Mr. Vu’s injuries: (1) veering to avoid a collision with a snowboarder; and (2) skiing over the drop-off at the edge of the trail and into a pile of rocks. If these risks are inherent to the sport of downhill skiing, Plaintiffs’ claims cannot stand.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with another skier is one of the common, frequent and expected [*16] risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.” Hughes, 762 A.2d at 344. Likely in recognition of the clear case law, Plaintiffs do not argue in their brief in opposition to the Motion that avoiding a collision with a snowboarder is a risk that would give rise to a duty on behalf of Defendants. To the extent that Plaintiffs’ claims of negligence are premised on Mr. Vu’s avoidance of a collision with the snowboarder, those claims must fail.

Next, we consider whether skiing over the edge of the trail and encountering a three to four foot drop-off into a pile of rocks is an inherent risk of downhill skiing. Plaintiffs frame this risk as the primary cause of Mr. Vu’s injuries.10 “Simply put, the risk of ejectment from a ski trail due to a 3 to 4 foot drop off and striking one’s head on rocks and/or boulders . . . is not an inherent, frequent, common, and expected risk of skiing.” (Doc. 42, p. 11). All parties recognize that the drop-off was at the edge of the trail rather than a ditch or hole in the slope itself. Though Plaintiffs stress that Mr. Vu did not “willingly [*17] decide to ski off trail,” the distinction is of no consequence. Plaintiffs describe the incident in terms of Mr. Vu being “ejected” from the trail due to the embankment, but it is illogical to argue that the existence of the drop-off itself would cause a skier to go over it. Whether Mr. Vu did so intentionally, accidentally, or as a means of avoiding a collision, the incontrovertible fact is that Mr. Vu did, ultimately, ski off of the three to four foot edge of the trail.

10 “. . . the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8); “Even if Defendant could establish that having a 3 to 4 foot trail edge drop presents a danger inherent to the sport of skiing . . .” (Id. at p. 9); “. . . he was ejected from the trail when attempting to avoid a collision and was confronted with a 3 to 4 foot drop in elevation from the ski trail.” (Id. at p. 11).

We hold that the risk of skiing off trail and suffering from the change of elevation between the trail and surrounding terrain is an inherent risk of downhill skiing. Mr. Vu was an experienced skier who was well aware of the risks of skiing off the designated slope; he testified repeatedly that he “would never ski off-trail.” (Doc. 41, att. 1, p. 43). He had previously skied at Liberty Mountain on multiple occasions and could not remember ever complaining about the trail or trail markings. (Id. at pp. 35-36). Additionally, Mr. Vu’s daughter testified that she did not have any difficulty discerning the edge of the slope where her father went off trail the evening of the accident. (Doc. 41, att. 2, p. 14). It would be irrational for [*18] any court to hold that skiing off trail and encountering dangerous terrain is not an inherent risk of the sport of downhill skiing — ski slopes are marked and maintained in appreciation of this risk, and beginner and experienced skiers alike know to stay within the trail limits to avoid injury. Mr. Vu himself testified that he understood that he could run into trees, rocks, boulders, or snowmaking equipment if he skied off trail. (Doc. 37, att. 1, p. 71).

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis. One case from the New York appellate court, however, was particularly analogous. In Atwell v. State, the plaintiff was skiing near the edge of the trail when he observed a “floundering” skier in his path. 645 N.Y.S.2d 658, 659 (1996). Plaintiff “instinctively reacted and turned without thinking” to avoid a collision and ended up skiing off trail and into a tree. Id. The court easily found that plaintiff’s injuries were due to inherent risks of skiing. Id. at 650. “[F]rom claimant’s own description of the accident, there can be no dispute that everything he encountered, including the skier he turned [*19] to avoid hitting, the berm at the edge of the trail referred to by claimant’s expert and the tree with which he collided, are all statutorily recognized as inherent dangers of skiing.” The court noted that “[c]laimant chose to ski near the edge of the trail and there is nothing in the record to indicate that the location of the edge of the trail was not readily observable to him.” Id. Similarly here, Mr. Vu was an experienced skier who chose to ski near the edge of the slope. He had a knee-jerk reaction to avoid a skier, and ended up veering off of the trail and suffering from the elevation change and his collision with rocks. Not only is there a lack of any evidence that the edge of the trail was difficult to discern, but Mr. Vu’s daughter testified at length about how her father was close to the edge of the trail and specifically stated that she could observe the edge of the slope without difficulty. (Doc. 41, att. 2, p. 14).

We agree with the Supreme Court of New Hampshire, which simply held: “Even the most generous reading of the plaintiff’s pleadings reveals the chief cause of his injuries to be an unenumerated, yet quintessential risk of skiing: that a skier might lose control [*20] and ski off the trail. By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.” Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 684, 671 A.2d 548, 553 (1996).

IV. CONCLUSION

For the foregoing reasons, the Motion shall be granted. A separate order shall issue in accordance with this memorandum.

ORDER

Presently before the Court is Defendants’ motion for summary judgment. (Doc. 36). In conformity with the Memorandum issued on today’s date, IT IS HEREBY ORDERED THAT:

1. Defendants’ motion for summary judgment (Doc. 36) is GRANTED.

2. The Clerk of the Court SHALL CLOSE the file on this case.

/s/ John E. Jones III

John E. Jones III

United States District Judge