Insurance companies are fighting policyholders rather than plaintiffs in the recreational industry field.
Posted: August 28, 2023 Filed under: Activity / Sport / Recreation, Insurance, Minnesota | Tags: Conditions Precedent, Cowboy Softball, exclusions, Insurance, insurance coverage, Meech Bucking Bull Ranch in Sebeka, Meeches, Minnesota, Scottsdale Insurance Leave a commentInsurance companies are attempting to avoid liability in OR cases by denying coverage. I’ve seen 4 in the past year in outdoor recreation.
Scottsdale Ins. Co. v. Meech (D. Minn. 2023)
State: Minnesota, United States District Court, D. Minnesota
Plaintiff: Scottsdale Insurance Company
Defendant: Troy Meech; Peggy Meech; and Scott Sellers
Plaintiff Claims: Whether there is coverage for an underlying claim under the policy
Defendant Defenses: There is coverage
Holding: For the Plaintiff Insurance Company
Year: 2023
Summary
Insurance company asked court for judgement saying there was no coverage under the policy for the claim. The coverage was denied because the exclusions in the policy were clear. The ranch owner is going to pay the claim out of their own pocket.
Facts
Scott Sellers is the plaintiff in the state court lawsuit against the defendant Meeches, Troy & Peggy. In this case, the plaintiff, the party starting the lawsuit is Scottsdale Insurance, the insurance company that issued a policy to the Meeches. The defendants are all three of the parties in the state court case, Meeches & Seller, the defendants and the plaintiff.
The defendants owned a ranch and purchased an insurance policy from Scottsdale. There is a state court case filed by Sellers for his injuries in the softball game. During the lawsuit in state court, the insurance company filed this action in federal court asking a court to determine if the insurance company had to defend and pay any claim based on the lawsuit in the state court.
The Meeches own and operate a ranch at which they host an annual event called the “Nimrod Bull Bash.” One of the activities during the event is a game of “Cowboy Softball,” during which participants play softball while bulls are present on the field. Defendant Scott Sellers is pursuing a state-court action against the Meeches for personal injuries that he suffered during a Cowboy Softball game in September 2021.
The insurance policy that Scottsdale issued to the Meeches contains two exclusions relevant to this case: an exclusion for “Athletic or Sports Participants” and a “Special Event Participant Exclusion.” The Meeches do not dispute that these exclusions preclude coverage for any injuries suffered by a participant in the Cowboy Softball game. The Meeches likewise do not dispute that Sellers in fact participated in the game. Instead, the Meeches contend that Sellers cannot be considered a participant because he was not authorized to play. The Meeches require all participants to register in advance and sign a waiver. Sellers did neither; instead, according to the Meeches, he entered the field without consent from the Meeches or any agent of the Meeches.
Once this case was filed in the Federal District Court of Minnesota, the insurance company filed a motion for summary judgement. The court then had to interpret the contract, the insurance policy and found there was no coverage.
Analysis: making sense of the law based on these facts.
This is a simple decision with one paragraph explaining there is no coverage.
There were two exclusions in the policy that the court found denied coverage. The Athletic or Sports Participants exclusion and the Special Event Participant exclusion.
The Athletic or Sports Participants exclusion stated there was no coverage for injuries sustained on the property for any person practicing or participating in sports, athletic contest, or exhibition. The name Cowboy Softball ended any argument about whether or not it was a sports event.
The athletic contest exclusion was again covered by the name and the activity. Playing softball. Coverage would have been excluded whether or not there were bulls on the field.
Unfortunately for the Meeches, however, coverage is precluded regardless of whether Sellers’s participation in the softball game was authorized. The language of the “Athletic or Sports Participants” exclusion precludes coverage for “‘bodily injury’ to any person arising out of practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” Similarly, the “Special Event Participant Exclusion” precludes coverage for “‘bodily injury . . . arising out of . . . [t]he practicing for or participation in any athletic event, contest, [or] game . . . covered by this policy.” The former exclusion does not define “participant”; the latter includes a broad definition of “participant,” which includes performers, volunteers, and “any other person taking part” in the activities covered by the exclusion. The language of these exclusions plainly covers any person who actually participated in the Cowboy Softball game regardless of whether the person was authorized to do so; there is no language that distinguishes between authorized and unauthorized participants.
So Now What?
Read your policy.
Confirm what you believe is covered under your policy with the insurance agent or broker that sold you the policy.
If you have a doubt about coverage, whether something is covered, IN ADVANCE confirm coverage with an email or letter. A PHONE CALL is worthless now days, unless you are legally allowed to record the phone call. (Even if your state allows you to record phone calls, if the call is to someone out of your state, which does not allow you to record phone calls, your recorded call is worthless.) Get it in writing
Understand your Exclusions in your policies. Exclusions are specific events, fact patterns or risks your policy will not provide defense or coverage for.
Understand your Prerequisites or condition’s precedent in your policy. Condition’s precedent are specific requirements you must meet before any coverage is available. In OR cases a condition precedent found in many policies is the requirement you have a release signed. No release, no coverage.
Whether you are right or wrong, insurance pays to prove you are right or pay if you are wrong. Make sure you have a good policy that covers what you do.
For more articles like this see:
To Review Case Law concerning this issue see:
Atain Specialty Ins Co v Adventure Facility Concepts Mgmt ND Ill 2023
MidContinent Excess Surplus Ins Co v Experiential Sys ND Ohio 2022
Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447
I’m currently involved in two cases that I cannot write about yet.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
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Scottsdale Ins. Co. v. Meech (D. Minn. 2023)
Posted: August 28, 2023 Filed under: Activity / Sport / Recreation, Insurance, Minnesota | Tags: Conditions Precedent, Cowboy Softball, exclusions, Insurance, insurance coverage, Meech Bucking Bull Ranch in Sebeka, Meeches, Minnesota, Scottsdale Insurance Leave a commentScottsdale Ins. Co. v. Meech (D. Minn. 2023)
SCOTTSDALE INSURANCE COMPANY, Plaintiff,
v.
TROY MEECH; PEGGY MEECH; and SCOTT SELLERS, Defendants.
No. 22-CV-0454 (PJS/LIB)
United States District Court, D. Minnesota
April 25, 2023
Alexander V. Tibor and Kurt M. Zitzer, MEAGHER & GEER, P.L.L.P., for plaintiff.
Troy Meech and Peggy Meech, defendants pro se.
ORDER
PATRICK J. SCHILTZ, CHIEF JUDGE
Plaintiff Scottsdale Insurance Company (“Scottsdale”) brought this action seeking a declaration that it owes no duty to defend or indemnify its insureds, Troy and Peggy Meech, in a pending state-court personal-injury action. This matter is before the Court on Scottsdale’s motion for summary judgment. For the reasons stated on the record at the April 24, 2023, hearing, and briefly outlined below, Scottsdale’s motion is granted.[1]
The Meeches own and operate a ranch at which they host an annual event called the “Nimrod Bull Bash.” ECF No. 43 at 2. One of the activities during the event is a game of “Cowboy Softball,” id., during which participants play softball while bulls are present on the field. Defendant Scott Sellers is pursuing a state-court action against the Meeches for personal injuries that he suffered during a Cowboy Softball game in September 2021. See ECF No. 1-1 (state-court complaint).
The insurance policy that Scottsdale issued to the Meeches contains two exclusions relevant to this case: an exclusion for “Athletic or Sports Participants” and a “Special Event Participant Exclusion.” ECF No. 1-2 at 39, 69. The Meeches do not dispute that these exclusions preclude coverage for any injuries suffered by a participant in the Cowboy Softball game. The Meeches likewise do not dispute that Sellers in fact participated in the game. Instead, the Meeches contend that Sellers cannot be considered a participant because he was not authorized to play. The Meeches require all participants to register in advance and sign a waiver. ECF No. 43 at 1. Sellers did neither; instead, according to the Meeches, he entered the field without consent from the Meeches or any agent of the Meeches.
Unfortunately for the Meeches, however, coverage is precluded regardless of whether Sellers’s participation in the softball game was authorized. The language of the “Athletic or Sports Participants” exclusion precludes coverage for “‘bodily injury’ to any person arising out of practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” ECF No. 1-2 at 39. Similarly, the “Special Event Participant Exclusion” precludes coverage for “‘bodily injury . . . arising out of . . . [t]he practicing for or participation in any athletic event, contest, [or] game . . . covered by this policy.” ECF No. 1-2 at 69. The former exclusion does not define “participant”; the latter includes a broad definition of “participant,” which includes performers, volunteers, and “any other person taking part” in the activities covered by the exclusion. ECF No. 1-2 at 69. The language of these exclusions plainly covers any person who actually participated in the Cowboy Softball game regardless of whether the person was authorized to do so; there is no language that distinguishes between authorized and unauthorized participants. Accordingly, the Court grants Scottsdale’s motion for summary judgment.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Plaintiff’s motion for summary judgment [ECF No. 38] is GRANTED.
2. The Court DECLARES that, under Policy Number CPS7431908, effective from August 27, 2021 to August 27, 2022, plaintiff Scottsdale Insurance Company owes no duty to defend or indemnify defendants Scott Meech and Peggy Meech with respect to claims asserted against them by defendant Scott Sellers in Wadena County Case No. 80-CV-22-905.
4
LET JUDGMENT BE ENTERED ACCORDINGLY.
———
Notes:
[1]Defendant Scott Sellers did not respond to Scottsdale’s motion and did not appear at the hearing.
———
Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)
Posted: May 8, 2023 Filed under: Minnesota, Racing, Release (pre-injury contract not to sue) | Tags: Bang the Gong, Course Race, Federal Court of Appeals, Greater than Ordinary Negligence, Gross negligence, Jump, Minnesota, Mud Run, obstacle, Obstacle course racing, Obsticle Course, Ordinary Negligence, Platform, Release, Rugged Maniac, Spartan Race, Tough Mudder Leave a commentTo Read an Analysis of this decision see: Sloppy but still lucky? Obstacle course avoids lawsuit with release, however, it was close
Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)
42 F.4th 955
Jeanne ANDERSON, Plaintiff – Appellant
v.
RUGGED RACES, LLC; Dennis Raedeke, Inc., doing business as Wild Mountain Recreation Area, Defendants – Appellees
No. 20-3436
United States Court of Appeals, Eighth Circuit.
Submitted: February 16, 2022
Filed: August 2, 2022
Counsel who represented the appellant was L. Michael Hall, of Saint Cloud, MN and Mara Brust of Saint Cloud, MN.
Counsel who represented the appellee was John M. Bjorkman, of Saint Paul, MN, Mark A. Solheim, of Saint Paul, MN, Anthony James Novak, of Saint Paul, MN and Pat Henry O’Neill of Saint Paul, MN.
Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
LOKEN, Circuit Judge.
In September 2016, Jeanne Anderson shattered her heel bone participating in the Rugged Maniac Twin Cities 5k obstacle race at the Wild Mountain Recreation Area (“Wild Mountain”). In 2018, Anderson sued Rugged Races LLC (“Rugged Races”), the race promoter, and Dennis Raedeke, Inc., the owner of Wild Mountain, alleging that defendants were “grossly negligent” in failing to perform their duties to protect race participants from unreasonable risks of harm. She appeals the district court’s1 grant of summary judgment in favor of both defendants. The diversity action is governed by Minnesota state law. Reviewing the grant of summary judgment de novo , we affirm. See
Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 585-86 (8th Cir. 1998) (standard of review).
I. Background
Since 2010, Rugged Races has planned hundreds of obstacle races around the country, including Rugged Maniac Twin Cities. The events feature an obstacle course with a series of challenges involving barbed wire, fire, water, and mud, followed by a post-race party. When Anderson registered for the 2016 Twin Cities event, she signed a Race Participant Agreement (the Agreement). In Part III of the Agreement, titled Assumption of Inherent Risks , Anderson acknowledged:
I understand fully the inherent risks involved in the Event and assert that I am willingly and voluntarily participating in the Event. … (1) I understand the nature of the Event; (2) I understand the physical and mental demands that this activity will place upon me; and (3) I understand that I may be injured by participating in the Event. I hereby assert that I knowingly assume all of the inherent risks of the activity and take full responsibility for any and all damages, liabilities, losses or expenses that I incur as a result of participating in the Event.
In Part IV, titled Waiver of Liability for Ordinary Negligence, Anderson waived and discharged both Rugged Races and Wild Mountain “from any and all claims resulting from the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE of Rugged Races LLC (or other Released Parties).” Anderson again signed the Agreement when she checked in on race day.
After starting the race and completing the first seven obstacles, Anderson reached the “Bang the Gong” challenge. This obstacle required her to jump from a raised platform, attempt to slap a gong in midair, and land in a pit of muddy water. When Anderson landed in the pit her “left foot hit something hard.” She crawled from the pit, received medical attention, and learned she had shattered the calcaneus bone in her left heel. Of the more than 4000 participants in the 2016 race, four others were injured on the Bang the Gong obstacle, suffering injuries to their foot or ankle after landing in the pit.
Anderson’s Complaint alleged (i) that defendants had duties to design and construct a reasonably safe course, maintain the course in a safe condition, inspect the course for unreasonable risks of harm, warn race participants of unreasonable risks, supervise parties responsible for performing those duties, and operate and maintain the course to ensure participants were not exposed to unreasonable risks; and (ii) that defendants were grossly negligent in failing to perform each of these duties. After discovery, defendants moved for summary judgment. The summary judgment record includes deposition testimony from Anderson and Rugged Races employees, declarations from the other injured participants, reports by Anderson’s expert witnesses, and other documentary evidence.
The district court granted summary judgment in favor of both defendants. Anderson v. Rugged Races LLC, 496 F. Supp. 3d 1270 (D. Minn. 2020). The court concluded that the exculpatory clause in the Agreement barred any claims for ordinary negligence and that Anderson had failed to show “greater-than-ordinary negligence.” On appeal, Anderson argues (i) the exculpatory clause is unenforceable; (ii) if enforceable, it does not waive claims based on defendants’ alleged greater-than-ordinary negligence; and (iii) the summary judgment record includes evidence from which a reasonable jury could find greater-than-ordinary negligence. Defendants argue the district court properly granted summary judgment because there is insufficient evidence of greater-than-ordinary negligence. They further argue that Minnesota law does not recognize any claim other than the claims for ordinary negligence that Anderson waived in the Agreement.2
We will affirm the grant of summary judgment when the evidence viewed in the light most favorable to the nonmoving party presents “no genuine issue of material fact” from which “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis omitted); see Fed. R. Civ. P. 56(a). “A mere scintilla of evidence is insufficient to defeat summary judgment and if a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as to any element of the cause of action, then summary judgment is appropriate.” Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (quotations and citations omitted).
II. Analysis
On appeal, Anderson argues that her waiver of ordinary negligence claims in the Agreement is not enforceable and, alternatively, that it does not waive claims based on greater-than-ordinary negligence. Defendants counter that the exculpatory clause is valid and enforceable and bars all of Anderson’s claims. There is a considerable body of relevant Minnesota case law on these issues.
A. Under Minnesota law, there is no common law action for “gross negligence.” See Peet v. Roth Hotel Co., 191 Minn. 151, 253 N.W. 546, 548 (1934). However, the negligence standard governing particular claims may be varied by statute or by contract. See, e.g., State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480 (1946) (criminal negligence statute), overruled on other grounds, State v. Engle, 743 N.W.2d 592 (Minn. 2008). Under Minnesota law, as in most States, “ordinary negligence” is the “failure to exercise such care as persons of ordinary prudence usually exercise under such circumstances.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (quotation omitted). Gross negligence is “substantially and appreciably higher in magnitude than ordinary negligence … [and is] the absence of slight diligence, or the want of even scant care.” Bolsinger, 21 N.W.2d at 485.
In the Race Participant Agreement, Anderson waived all claims resulting from “the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE” of the defendants. Minnesota Courts call provisions of this type exculpatory clauses. In Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982), the Supreme Court of Minnesota dismissed a fitness spa member’s negligence action, based on the exculpatory clause in her membership agreement. The Court noted that prior cases had upheld exculpatory clauses in construction contracts and commercial leases:
Even though we have recognized the validity of exculpatory clauses in certain circumstances, they are not favored in the law. A clause exonerating a party from liability will be strictly construed against the benefited party. If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced .
Id. at 923 (emphasis added, citation omitted). Reversing the denial of summary judgment, the Court held:
that the exculpatory clause in Spa Petite’s membership contract was unambiguous and limited to exoneration from negligence; that there was not disparity of bargaining power; and that the clause was not void as against public policy.
Id. at 926.
In Beehner v. Cragun Corp., 636 N.W.2d 821 (Minn. Ct. App. 2001), the Minnesota Court of Appeals considered a riding stable’s exculpatory clause. Unlike the exculpatory clause in Schlobohm, which applied to “all acts of active or passive negligence,” 326 N.W.2d at 922, the clause in Beehner was limited to claims of “ordinary negligence” and expressly excluded claims based on “gross negligence and willful and wanton misconduct.” 636 N.W.2d at 825. Reversing the grant of summary judgment in favor of the riding stable, the Court held:
In a dispute over the applicability of an exculpatory clause, summary judgment is appropriate only when it is uncontested that the party benefited by the exculpatory clause has committed no greater-than-ordinary negligence . Thus, summary judgment is appropriate here only if Outback’s conduct does not, as a matter of law, rise to the level of gross negligence or wanton and willful misconduct .
Id. at 829 (emphasis added and citation omitted).
The district court treated Beehner as controlling Minnesota authority and applied the greater-than-ordinary negligence standard. Defendants argue Minnesota law does not recognize any claim other than the claims for ordinary negligence. We need not resolve that question in this case because, in granting summary judgment in favor of defendants, the district court adopted the view of this issue that is most favorable to Anderson, the non-moving party. Because we agree with the court that Anderson presented insufficient evidence of greater-than-ordinary negligence, we assume without deciding that this standard is consistent with controlling Minnesota law.
In addition to arguing that greater-than-ordinary negligence is the correct standard, Anderson argues that the exculpatory clause at issue is unenforceable because it is ambiguous in scope: Minnesota law imposes on defendants as the landowner and operator of a for-profit recreational activity a duty to exercise a “high degree of care” to ensure that invitees are not exposed to unreasonable risks of harm. Hanson v. Christensen, 275 Minn. 204, 145 N.W.2d 868, 873-74 (1966) ; see
Olmanson v. LeSueur Cty., 693 N.W.2d 876, 881 (Minn. 2005) ; Isler v. Burman, 305 Minn. 288, 232 N.W.2d 818, 821 (1975). This argument is without merit. First, the “ordinary negligence” clause in the Agreement is less, or at least no more ambiguous than the exculpatory clause held to be un ambiguous in Schlobohm, 326 N.W.2d at 922-23 (the term “all acts of active or passive negligence … specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only”), and Beehner, 636 N.W.2d at 827. Second, when the duty to exercise this high degree of care applies, it is an ordinary negligence duty to exercise “reasonable care, meaning care commensurate with the risks involved.” Hanson, 145 N.W.2d at 873. Thus, that the waiver of claims for “ordinary negligence” includes this type of duty for landowners and for-profit operators does not make the waiver ambiguous. We agree with the district court that the Agreement’s exculpatory clause is unambiguously limited to ordinary negligence. As in Beehner, Anderson was a voluntary participant in a recreational activity that does not “implicate[ ] a public or essential service.” 636 N.W.2d at 828.
B. Anderson claims defendants exhibited greater-than-ordinary negligence in the design, construction, supervision, and maintenance of the Bang the Gong obstacle. The district court properly rejected these claims.
On appeal Anderson first argues there was greater-than-ordinary negligence in the design of the Bang the Gong challenge based on expert testimony supporting her claim that a deeper level of water in the landing pit could have prevented her injury. However, Bang the Gong was not a new obstacle for the 2016 Rugged Maniac race. Rather it was tested, used in multiple previous events, and modeled on an earlier obstacle that was safely used for years. We agree with the district court that “[t]he fact that thousands of participants — many of whom undoubtedly outweighed Anderson — jumped into the landing pit without incident is compelling evidence that the water level was not unreasonably low.” Anderson, 496 F. Supp. 3d at 1285.
Anderson also argues the summary judgment record supports her claim of greater-than-ordinary negligence in the construction process for the 2016 event. Like the district court, we disagree. Rugged Races followed a detailed protocol when constructing Bang the Gong for this and other events, described in deposition testimony by Rugged Races’ Senior Vice President, Bradford Scudder, and a construction crew member from the 2016 race, Christian Melnik. The process involved digging a pit, removing debris, lining the pit with a tarp, filling it with water, and then constructing the platform participants would use to jump into the pit. The protocol requires crew members to inspect the pit three separate times before it is filled to ensure no rocks, roots, or other debris are present. They conduct two subsequent visual inspections after the pit is filled, including on the morning of the race. Although there was no supporting documentation, Melnik testified that he was not aware that the construction crew ever deviated from this protocol before, during, or after the 2016 race. Anderson, 496 F. Supp. 3d at 1274. The district court properly concluded that such evidence would be admissible as evidence of Rugged Races’ routine. See Fed. R. Evid. 406 (court may admit evidence of routine practice “regardless of whether it is corroborated or whether there was an eyewitness”).
Anderson concedes the admissibility of the Rule 406 evidence, but argues such “self-serving assertion[s]” are not dispositive. True enough. But this testimony by persons familiar with and involved in the process was strong evidence that Rugged Races complied with its established routine of carefully constructing and inspecting the obstacle before the race. Anderson’s disputed evidence of a submerged rock3 was insufficient to create a material issue of fact that would meet her burden to prove that defendants were liable for greater-than-ordinary negligence. Anderson, 496 F. Supp. 3d at 1280. We agree with the district court that Anderson offered “little more than speculation” supporting her contentions that the rock was present before the pit was filled and would have been discovered had the construction crew not acted with greater-than-ordinary negligence. Id. at 1284. To avoid summary judgment, the nonmoving party must provide “sufficient probative evidence” based on “more than mere speculation [or] conjecture.” Ball v. City of Lincoln, 870 F.3d 722, 727 (8th Cir. 2017) (quotation omitted).
We further agree with the district court that Anderson submitted insufficient evidence to establish that defendants acted with greater-than-ordinary negligence during or after the race. The district court estimated that Anderson was injured at approximately 1:00 pm.4 The court carefully reviewed when defendants would have learned that four other participants reported similar injuries before concluding that the record did not support Anderson’s contention that Rugged Races knew or should have known of a rock in the landing pit in time to take preventive action. 496 F. Supp. 3d at 1278-80. Anderson argues prior notice is irrelevant because Rugged Races created the danger. Rugged Races constructed the obstacle, but there is no evidence that Rugged Races placed a dangerous rock in the pit, only circumstantial evidence that it failed to discover a hidden danger. Under Minnesota law, landowners are not “insurers of safety of their patrons.” Hanson, 145 N.W.2d at 873. “Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition.” Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. Ct. App. 2000).
Here, the first two injuries were similar to Anderson’s and occurred earlier, but neither injury report mentioned a rock in the pit, only that the injured participant “landed wrong” or “jumped into … uneven terrain.” The other three injuries, including Anderson’s, occurred between 1:00-1:30pm. The injury reports reported there was a rock in the pit, but Rugged Races was not made aware of these reports in time to put it on notice that preventive action might be needed. See
Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 195 N.W.2d 432, 433 (1972) (no actual or constructive notice when hazard only present for 20 minutes). Because “an act or omission is not negligent unless the actor had knowledge or notice that it involves danger to another,” Rugged Races’ failure to remove the rock from the landing pit before Anderson’s injury is not a sufficient showing of greater-than-ordinary negligence. Rue v. Wendland, 226 Minn. 449, 33 N.W.2d 593, 595 (1948). And given the nature of the obstacle and the evidence of Rugged Races’ careful inspection procedures when creating the obstacle, the record does not provide sufficient evidence that any uneven terrain in the landing pit was the product of greater-than-ordinary negligence.
Finally, Anderson argues that Rugged Races failed to maintain the water level in the Bang the Gong pit to the depth required by its protocol, a further example of greater-than-ordinary negligence. The district court declined to consider this issue because Anderson first raised it at the summary judgment hearing. 496 F. Supp. 3d at 1285 n.11. As Anderson “did not sufficiently present [the] argument” to the district court, we will not consider it on appeal. Cole v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 533 F.3d 932, 936 (8th Cir. 2008).
III. Conclusion
In summary, our careful review of the record confirms the district court did not err in concluding Anderson failed to establish greater-than-ordinary negligence as a matter of law. Accordingly, her negligence claims are waived by the valid and enforceable exculpatory clause in the Race Participant Agreement. The judgment of the district court is affirmed.
——–
Notes:
1 The Honorable Patrick J. Schiltz, now Chief Judge of the United States District Court for the District of Minnesota
2 Defendants also argue (i) Anderson waived any claim based on greater-than-ordinary negligence by alleging only gross negligence in her Complaint; and (ii) Anderson’s claims are barred by the Minnesota doctrine of primary assumption of the risk. Given our resolution of Anderson’s appeal, we need not consider these issues.
3 Though there was no physical evidence of a submerged rock in the landing pit, Anderson and the other injured participants described “feeling a rock or similar object” when they landed. In ruling on defendants’ motion for summary judgment, the district court properly concluded it “therefore must assume that a rock was present in the landing pit of Bang the Gong.” Anderson, 496 F. Supp. 3d at 1278 n.7.
4 The district court estimated 1:00pm “based on the fact that Anderson did not report her injury until 1:15 pm, after she had hurt her foot, crawled out of the pit, reported her need for medical attention, waited for a medic to arrive, and been transported to the medical tent.” Anderson, 496 F. Supp. 3d at 1275 n.4.
@2023 Summit Magic Publishing, LLC
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Sloppy but still lucky? Obstacle course avoids lawsuit with release, however, it was close
Posted: May 8, 2023 Filed under: Minnesota, Racing, Release (pre-injury contract not to sue) | Tags: Assumption of Risk Doctrine, assumption of the risk, Minnesota, Obstacle Course, Obstacle course racing, Reasonably Safe Course, Release, Unreasonable Risk of Harm, Waiver Leave a commentWhen the defendant learned of a problem was a critical part of winning this case.
Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)
State: Minnesota; United States Court of Appeals, Eighth Circuit
Plaintiff: Jeanne Anderson
Defendant: Rugged Races, LLC; Dennis Raedeke, Inc., doing business as Wild Mountain Recreation Area
Plaintiff Claims: (i) that defendants had duties to design and construct a reasonably safe course, maintain the course in a safe condition, inspect the course for unreasonable risks of harm, warn race participants of unreasonable risks, supervise parties responsible for performing those duties, and operate and maintain the course to ensure participants were not exposed to unreasonable risks; and (ii) that defendants were grossly negligent in failing to perform each of these duties.
Defendant Defenses: Release, Assumption of the Risk
Holding: For the Defendant
Year: 2022
Summary
A release signed by a participant in an obstacle course race was sufficient to defeat her claim that the defendant builder and operator of the race were negligent. Minnesota does not allow claims for greater than ordinary negligence; however, whether the defendant was guilty of such acts was also examined.
Facts
Since 2010, Rugged Races has planned hundreds of obstacle races around the country, including Rugged Maniac Twin Cities. The events feature an obstacle course with a series of challenges involving barbed wire, fire, water, and mud, followed by a post-race party. When Anderson registered for the 2016 Twin Cities event, she signed a Race Participant Agreement (the Agreement). In Part III of the Agreement, titled Assumption of Inherent Risks , Anderson acknowledged:
I understand fully the inherent risks involved in the Event and assert that I am willingly and voluntarily participating in the Event. … (1) I understand the nature of the Event; (2) I understand the physical and mental demands that this activity will place upon me; and (3) I understand that I may be injured by participating in the Event. I hereby assert that I knowingly assume all of the inherent risks of the activity and take full responsibility for any and all damages, liabilities, losses or expenses that I incur as a result of participating in the Event.
In Part IV, titled Waiver of Liability for Ordinary Negligence , Anderson waived and discharged both Rugged Races and Wild Mountain “from any and all claims resulting from the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE of Rugged Races LLC (or other Released Parties).” Anderson again signed the Agreement when she checked in on race day.
After starting the race and completing the first seven obstacles, Anderson reached the “Bang the Gong” challenge. This obstacle required her to jump from a raised platform, attempt to slap a gong in midair, and land in a pit of muddy water. When Anderson landed in the pit her “left foot hit something hard.” She crawled from the pit, received medical attention, and learned she had shattered the calcaneus bone in her left heel. Of the more than 4000 participants in the 2016 race, four others were injured on the Bang the Gong obstacle, suffering injuries to their foot or ankle after landing in the pit.
Anderson’s Complaint alleged (i) that defendants had duties to design and construct a reasonably safe course, maintain the course in a safe condition, inspect the course for unreasonable risks of harm, warn race participants of unreasonable risks, supervise parties responsible for performing those duties, and operate and maintain the course to ensure participants were not exposed to unreasonable risks; and (ii) that defendants were grossly negligent in failing to perform each of these duties. After discovery, defendants moved for summary judgment. The summary judgment record includes deposition testimony from Anderson and Rugged Races employees, declarations from the other injured participants, reports by Anderson’s expert witnesses, and other documentary evidence.
Analysis: making sense of the law based on these facts.
This was an obstacle race. The defendant reached “Bang the Gong” where she climbed up a man-made platform and jumped into a muddy pit of water. Her foot hit something shattering her heel. She sued. The federal district court granted the defendant’s motion for summary judgment, and this was the appeal of that judgment.
Minnesota does not recognize gross negligence. Meaning if you sue there is no hierarchy of types of negligence that void releases or get you additional damages. According to Minnesota law, negligence is defined as:
…ordinary negligence” is the “failure to exercise such care as persons of ordinary prudence usually exercise under such circumstances.” Gross negligence is “substantially and appreciably higher in magnitude than ordinary negligence … [and is] the absence of slight diligence, or the want of even scant care.”
Minnesota law imposes on defendants as the landowner and operator of a for-profit recreational activity a duty to exercise a “high degree of care” to ensure that invitees are not exposed to unreasonable risks of harm.
This was an issue because the plaintiff argued the defendant had participated in greater than ordinary negligence in the construction of the Bong the Gong. Even though Minnesota does not recognize greater than ordinary negligence, the appellate court found the standard of care to be applied in this case was based on greater than ordinary negligence.
First, the “ordinary negligence” clause in the Agreement is less, or at least no more ambiguous than the exculpatory clause held to be un ambiguous (the term “all acts of active or passive negligence … specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only”). Second, when the duty to exercise this high degree of care applies, it is an ordinary negligence duty to exercise “reasonable care, meaning care commensurate with the risks involved.” Thus, that the waiver of claims for “ordinary negligence” includes this type of duty for landowners and for-profit operators does not make the waiver ambiguous. We agree with the district court that the Agreement’s exculpatory clause is unambiguously limited to ordinary negligence. As in Beehner, Anderson was a voluntary participant in a recreational activity that does not “implicate[ ] a public or essential service.”
Then the appellate court started dissecting the arguments. The Bong the Gong structure was not a new structure; it had been used in races for several years. The plaintiff also argued the landing pit needed to be deeper so the plaintiff would not strike the bottom. Because a thousand of participants in this race and thousands more in other races had not been injured the court did not buy into this argument.
However, Bang the Gong was not a new obstacle for the 2016 Rugged Maniac race. Rather it was tested, used in multiple previous events, and modeled on an earlier obstacle that was safely used for years. We agree with the district court that “[t]he fact that thousands of participants — many of whom undoubtedly outweighed Anderson — jumped into the landing pit without incident is compelling evidence that the water level was not unreasonably low.”
The defendant had a detailed protocol for building the structure and digging the pit which it had followed in this race.
Rugged Races followed a detailed protocol when constructing Bang the Gong for this and other events, described in deposition testimony by Rugged Races’ Senior Vice President, Bradford Scudder, and a construction crew member from the 2016 race, Christian Melnik. The process involved digging a pit, removing debris, lining the pit with a tarp, filling it with water, and then constructing the platform participants would use to jump into the pit. The protocol requires crew members to inspect the pit three separate times before it is filled to ensure no rocks, roots, or other debris are present. They conduct two subsequent visual inspections after the pit is filled, including on the morning of the race.
This proved that the defendant had followed its established routine in creating the obstacle, which could have been introduced at trial.
The court then agreed with the district court that the plaintiff had failed to introduce evidence to prove actions on the part of the defendant were anything but ordinary negligence.
We further agree with the district court that Anderson submitted insufficient evidence to establish that defendants acted with greater-than-ordinary negligence during or after the race. The district court estimated that Anderson was injured at approximately 1:00 pm.4 The court carefully reviewed when defendants would have learned that four other participants reported similar injuries before concluding that the record did not support Anderson’s contention that Rugged Races knew or should have known of a rock in the landing pit in time to take preventive action.
Because the injuries that occurred prior to the plaintiff’s injuries were not described in a way that would have put the defendant on notice of a problem that the plaintiff suffered and the injuries that occurred after the time the plaintiff was injured would not have mattered, the court found the plaintiff had failed to prove the defendant acted in any way that would give rise to more than ordinary negligence.
Here, the first two injuries were similar to Anderson’s and occurred earlier, but neither injury report mentioned a rock in the pit, only that the injured participant “landed wrong” or “jumped into … uneven terrain.” The other three injuries, including Anderson’s, occurred between 1:00-1:30pm. The injury reports reported there was a rock in the pit, but Rugged Races was not made aware of these reports in time to put it on notice that preventive action might be needed.
Applying the standard of care of a landowner under Minnesota law, landowners are not insurers of the safety of their patrons, (parties on their land), unless the dangerous condition resulted from the direct action of the landowner.
Under Minnesota law, landowners are not “insurers of safety of their patrons.” “Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition.”
Because the defendant had no knowledge of the issues until the plaintiff was injured, the defendant could not be held to a higher degree of negligence, negligence and thus the release stopped the plaintiff’s claims.
Because “an act or omission is not negligent unless the actor had knowledge or notice that it involves danger to another,” Rugged Races’ failure to remove the rock from the landing pit before Anderson’s injury is not a sufficient showing of greater-than-ordinary negligence.
So Now What?
This is a confusing case because Minnesota does not support claims for greater than ordinary negligence, but this court worked hard to make sure it was not an issue. What does come from the case is the general support that releases are valid in Minnesota.
Even though Minnesota has held that a parent could sign away a minor’s right to sue, the courts had also found ways to invalidate releases. See Minnesota decision upholds parent’s right to sign away a minor’s right to sue (Moore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299).
For other cases about Minnesota release law see:
Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Minnesota Appellate court upholds a release signed by a mother for a child’s injuries
Plaintiff argues under Minnesota law, the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area
For other states that allow a parent to sign away a minor’s right to sue see:
States that allow a parent to sign away a minor’s right to sue
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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States that allow a parent to sign away a minor’s right to sue.
Posted: April 21, 2023 Filed under: California, Colorado, Florida, Maryland, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Alaska, Arizona, California, Colorado, Florida, MARYLAND, Massachusetts, Minnesota, Minor, Nebraska, North Dakota, Parent can sign away Minor's Right to Sue, Release, Utah, Virginia, Waiver, Wisconsin Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
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#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, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,
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Minn. Stat. 184B.20 Inflatable Amusement Equipment (Minnesota Statutes (2022 Edition))
Posted: April 18, 2022 Filed under: Indoor Recreation Center, Minnesota | Tags: Commercial Use, Inflatable, Inflatable Amusement Equipment, Minnesota, Minor, Release, statute Leave a commentMinn. Stat. 184B.20 Inflatable Amusement Equipment (Minnesota Statutes (2022 Edition))
§ 184B.20. INFLATABLE AMUSEMENT EQUIPMENT
Subdivision 1. Definitions.
(a) For purposes of this section, the terms defined in this subdivision have the meanings given.
(b) “Commercial use” means regular use of an inflatable for profit by an owner at a permanently located facility:
(1) to which the general public is invited; or
(2) which the owner makes available at that facility for private parties or other events.
“Commercial use” does not include use of an inflatable (i) at a carnival, festival, fair, private party, or similar venue at a location other than the permanently located facility, or (ii) at a facility where the use of the inflatable is incidental to the primary use of the facility.
(c) “Inflatable” means an amusement device, used to bounce or otherwise play on, that incorporates a structural and mechanical system and employs a high-strength fabric or film that achieves its strength, shape, and stability by tensioning from internal air pressure.
(d) “Owner” means a person who owns, leases as lessee, or controls the operation of an inflatable for commercial use.
(e) “Person” has the meaning given in section 302A.011, subdivision 22.
(f) “Supervisor” means an individual stationed within close proximity to an inflatable during its use, for the purpose of supervising its safe use.
(g) “Trained” means that an individual has received instruction in how to supervise the safe use of inflatables in accordance with industry and ASTM standards.
Subd. 2. Prohibition.
No owner shall provide an inflatable for commercial use in this state by others unless the owner complies with this section.
Subd. 3. Protection against injuries from falls.
An inflatable that is in commercial use must be placed in a manner that complies with ASTM Standard F 2374.07, adopted by the American Society for Testing and Materials, including any future updates to that standard.
Subd. 4. Supervision by trained person required.
No owner of an inflatable shall allow commercial use of the inflatable unless a trained supervisor is present in close proximity to the inflatable and is actively supervising its use. The ratio of supervisors to inflatables must comply with ASTM Standard F 2374.07, as referenced under subdivision 3.
Subd. 5. Insurance required; waiver of liability limited.
(a) An owner of an inflatable that is subject to subdivision 2 shall maintain liability insurance covering liability for a death or injury resulting from commercial use of the inflatable with limits of no less than $1,000,000 per occurrence and $2,000,000 aggregate per year. The insurance shall also include medical payments coverage of no less than $5,000 per occurrence, which may be limited to injuries incurred while using an inflatable, including getting on or off of the inflatable. The insurance must be issued by an insurance company authorized to issue the coverage in this state by the commissioner of commerce, and must be kept in force during the entire period of registration. In the event of a policy cancellation, the insurer will send written notice to the commissioner of labor and industry at the same time that a cancellation request is received from or a notice is sent to the insured.
(b) A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.
Subd. 6. Registration required.
An owner of an inflatable that is subject to subdivision 2 must obtain and maintain a current registration with the commissioner of labor and industry. The registration information must include the name, address, telephone number, and e-mail address of the owner, the street address of each facility at which the owner regularly provides inflatables for commercial use in this state by others, and a current insurance certificate of coverage proving full compliance with subdivision 5. The commissioner shall issue and renew a certificate of registration only to owners who comply with this section. The commissioner shall charge a registration fee of $100 for a two-year registration designed to cover the cost of registration and enforcement. Fee receipts must be deposited in the state treasury and credited to the construction code fund. The registration certificate shall be issued and renewed for a two-year period. The registrant shall promptly notify the commissioner in writing of any changes in the registration information required in this subdivision.
Subd. 7. Enforcement.
The commissioner of labor and industry shall enforce this section and may use for that purpose section 326B.082 and any powers otherwise available to the commissioner for enforcement purposes, including suspension or revocation of the person’s registration and assessment of fines.
Source:
2010 c 347 art 3s 2
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States that allow a parent to sign away a minor’s right to sue.
Posted: March 12, 2019 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: #AZ, #FL, #OH, #Zivich, AK, Alaska, Arizona, Atkins, Bismark Park District, CA, California, Cascade Mountain, City Of Coral Gables, City of Newton, CO, Colorado, Equine, Equine Safety Act, Florida, Global Travel Marketing, Gonzalez, Hohe, MA, Massachusetts, McPhail, Mentor Soccer Club, Minnesota, Minnesota Baseball Instructional School, Minor, minors, MN, Moore, NC, ND, New York, North Carolina, North Dakota, Ohio, Osborn, Parent Signature, Right to Sue, San Diego, San Diego Unified School District, Sharon, Shea, Swimwest Family Fitness Center, UT, Utah, WI, Wisconsin Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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#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, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,
Act Now & Stop this Minnesota bill
Posted: February 13, 2019 Filed under: Minnesota, Release (pre-injury contract not to sue) | Tags: #AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #BicyclingLaw, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #OutsideLawyer, #Rec-Law, #RecLaw, #RecLawBlog, #RecLawyer, #Recreation-Lawcom, #RecreationalLawyer, #RecreationLawBlog, #RecreationLawcom, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #SkiLaw, #SummerCamp, #Tourism, #YouthCamps, #ZipLineLawyer, Backpacking, Camps, Hiking, JimMoss, Law, legislation, Minnesota, MN, Mountaineering, Negligence, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, Rec-LawBlog, Recreation-Law.com, RecreationLaw, releases, skiing, snowboarding, TravelLaw, waivers Leave a commentMinnesota Legislation is considering a bill that would eliminate releases (waivers) in Minnesota for recreational activities.
What the legislature does not understand is this bill will eliminate recreational activities in Minnesota.
Again, the Minnesota Senate and the House have introduced bills to ban releases in MN for recreational activities. Here is a copy of the Senate bill.
A bill for an act relating to civil actions; voiding a waiver of liability for ordinary negligence involving a consumer service; amending Minnesota Statutes 2018, section 604.055, subdivision 1.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2018, section 604.055, subdivision 1, is amended to read:
Subdivision 1.
Certain agreements are void and unenforceable.
An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes new text begin ordinary negligence or new text end greater than ordinary negligence is against public policy and void and unenforceable.
The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from deleted text begin conduct that constitutes ordinary negligence or for deleted text end risks that are inherent in a particular activity.
EFFECTIVE DATE.
This section is effective August 1, 2019, and applies to agreements first signed or accepted on or after that date.
Without the defenses supplied by releases in Minnesota:
- Insurance costs will skyrocket. After OR outlawed releases some premiums jumped 2.5 times.
- Insurance for many activities will be impossible to find.
- Either because of the costs or the lack of premium recreation business will close.
- The first group of recreation businesses to go will be those serving kids. They get hurt easy, and their parents sue easy.
- Minnesota courts will back log because the only defense available will be assumption of the risk. Assumption of the risk is determined in the vast majority of cases by the jury. Consequently, it will take years to get to trial and prove the injured plaintiff assumed the risk.
Do Something
Contact your Senator and Representative and tell them you are opposed to this bill. Do it by telephone and in writing.
Find other organizations, trade associations and the like and join with them to give them more power because they have more people they represent.
Explain the bill to your friends and neighbors, so they can voice their opinion. Encourage them to do so.
Become politically aware so you know what is going on with the legislature and how to fight bills like this.
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
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
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Mobile Site: http://m.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,
States that allow a parent to sign away a minor’s right to sue
Posted: June 7, 2017 Filed under: Alaska, California, Colorado, Florida, Maryland, Massachusetts, Minnesota, Minors, Youth, Children, North Dakota, Release (pre-injury contract not to sue) | Tags: #AZ, #FL, #OH, #Zivich, AK, Alaska, Arizona, Atkins, Bismark Park District, CA, California, Cascade Mountain, City Of Coral Gables, City of Newton, CO, Colorado, Equine, Equine Safety Act, Florida, Global Travel Marketing, Gonzalez, Hohe, MA, Massachusetts, McPhail, Mentor Soccer Club, Minnesota, Minnesota Baseball Instructional School, Minor, minors, MN, Moore, NC, ND, New York, North Carolina, North Dakota, Ohio, Osborn, Parent Signature, Release, Right to Sue, San Diego, San Diego Unified School District, Sharon, Shea, Swimwest Family Fitness Center, UT, Utah, WI, Wisconsin Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: http://www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#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, minor, release, Parent Signature, NC, North Carolina, Alaska, AK, AZ, Arizona, CO, Colorado, Florida, FL, CA, California, MA, Massachusetts, Minnesota, MN, ND, North Dakota, OH, Ohio, WI, Wisconsin, Hohe, San Diego, San Diego Unified School District, Global Travel Marketing, Shea, Gonzalez, City Of Coral Gables, Sharon, City of Newton, Moore, Minnesota Baseball Instructional School, McPhail, Bismark Park District, Zivich, Mentor Soccer Club, Osborn, Cascade Mountain, Atkins, Swimwest Family Fitness Center, Minor, Minors, Right to Sue, Utah, UT, Equine, Equine Safety Act, North Carolina, New York,
Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Posted: February 9, 2015 Filed under: Assumption of the Risk, Minnesota, Snow Tubing | Tags: Afton Alps Recreation Area, assumption of the risk, Minnesota, Primary Assumption of the Risk, Snow Tubing, Tubing Leave a commentCourt in its ruling referred to the language on the lift ticket as additional proof that plaintiff had knowledge of the risk.
Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047
State: Minnesota, Court of Appeals of Minnesota
Plaintiff: Donya L. Dawson
Defendant: Afton Alps Recreation Area
Plaintiff Claims: Negligence
Defendant Defenses: Assumption of Risk
Year: 2014
Holding: for the Defendant
The plaintiff went tubing at the defendant’s property. She failed to stop and collided with a fence at the end of the run. She had been tubing before in the past couple of years. She purchased a ticket to tube but did not read the disclaimer language on the back of the ticket before she affixed it to her jacket.
The language on the lift ticket was quite extensive and outlined the risks of tubing.
The plaintiff could see the fence which was behind a snow barrier when she was standing at the top of the tubing run. The plaintiff tubed for about 1.5 hours when she linked her tube with her boyfriends. At the end of the run the plaintiff “flipped out of her tube” hitting the fence injuring her leg.
The plaintiff sued, and the trial court granted the defendant’s motion for summary judgment stating the plaintiff’s claims were barred by the doctrine of primary assumption of the risk.
Analysis: making sense of the law based on these facts.
Primary assumption of the risk is a complete bar to a recovery by a plaintiff. Under Minnesota law, primary assumption of the risk is defined as:
Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .
In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.
The court also stated that in Minnesota for a person to assume the risk, they must:
The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.”
The knowledge required when knowing the risk is actual knowledge of the risk. That means the plaintiff could not be held to know the risk of tubing and hitting the fence if she had not seen the fence. Actual knowledge that there was a fence at the end of the run is required, not just the knowledge that you can be hurt tubing.
The court then broke down the requirements and discussed each component of the steps necessary to prove assumption of the risk. The first is, was there a duty of care owed by the defendant to the plaintiff. Under Minnesota law, a person operating a place of amusement owes a duty to make the amusement reasonable safe.
(holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.
The court found that the plaintiff had the opportunity to discover the risks of tubing, knew about those risks thus she accepted the risks of tubing.
Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.
Next the court looked at whether the plaintiff had knowledge and appreciated of the risk. Knowledge must be “Actual knowledge of a sport’s risks may be inferred from experience in the sport.”
The plaintiff argued she did not know she could be hurt hitting the fence.
The court basically did not buy it. The plaintiff knew she could be injured if she hit other objects or other tubers. The plaintiff knew the hill was icy that night and knew she was unable to control the tube as it went down the hill. The plaintiff knew the activity was not safe and wore a ticket that stated it was not safe.
The court concluded that if the plaintiff wanted to avoid the risks, she could have not gone tubing that evening.
So Now What?
I found this statement in the decision to be quite interesting. “Snowtubing is a sport, like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” This might be interesting and provide help either direction in a skiing case in Minnesota.
Assumption of the risk is the second defense available to most outdoor recreation providers. However, proving assumption of the risk is difficult. Here it was a lot easier because the plaintiff had gone tubing before and had been tubing for an hour and half the nigh to the incident as well as saw the risk before encountering it.
Keep track of who visits your operation. Repeat visitors may tell you of the dozens of times they have stopped by in the past and then on the stand say it was a first time for them. Assumption of the risk is hard to prove without prior experience, videos or proof the persons assumed the risk in writing.
What do you think? Leave a comment.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
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Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047
Posted: February 8, 2015 Filed under: Assumption of the Risk, Legal Case, Minnesota, Snow Tubing | Tags: Afton Alps Recreation Area, assumption of the risk, Minnesota, Primary Assumption of the Risk, Snow Tubing, Tubing Leave a commentTo Read an Analysis of this decision see
Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Dawson v. Afton Alps Recreation Area, 2014 Minn. App. Unpub. LEXIS 1047
Donya L. Dawson, Appellant, vs. Afton Alps Recreation Area, Respondent.
A14-0194
COURT OF APPEALS OF MINNESOTA
2014 Minn. App. Unpub. LEXIS 1047
September 22, 2014, Filed
NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.
SUBSEQUENT HISTORY: Review denied by Dawson v. Afton Alps Rec. Area, 2014 Minn. LEXIS 685 (Minn., Dec. 16, 2014)
PRIOR HISTORY: [*1] Washington County District Court File No. 82-CV-13-224.
DISPOSITION: Affirmed.
CORE TERMS: snowtubing, fence, ticket, colliding, tube, barrier, pillow, well-known, incidental, snowtuber, skiing, sport, summary judgment, review denied, collision, snowtubed, speed, record supports, actual knowledge, genuine, icy, snowboarding, snowtube, descent, jacket, tubing, linked, user, hit, matter of law
COUNSEL: For Appellant: James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, Minnesota.
For Respondent: Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota.
JUDGES: Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Willis, Judge*.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
OPINION BY: WILLIS
OPINION
UNPUBLISHED OPINION
WILLIS, Judge
Appellant sustained injuries from colliding with a fence while snowtubing and brought a negligence action against the owner and operator of the snowtubing business. The district court entered summary judgment in favor of the owner, concluding that the doctrine of primary assumption of the risk barred appellant’s claim. We affirm.
FACTS
In January 2012, appellant Donya Dawson went snowtubing at respondent Afton Alps Recreation Area with a group of friends. Dawson, who was 41 years old, had snowtubed at least once in the preceding two years. A friend of Dawson’s signed a release in order to get Dawson’s ticket; Dawson affixed the ticket to her jacket. The ticket contained the following language:
The [*2] purchaser or user of this ticket agrees and understands that skiing, snowboarding, and tubing can be hazardous. Trail conditions vary constantly because of weather changes and individual use. Ice, variations in terrain, moguls, forest growth, rocks and debris, lift towers and other obstacles and hazards, including other skiers, snowboarders and tubers may exist throughout the area. Be aware that snowmaking and snowgrooming may be in progress at any time. Always stay in control.
In using the ticket and skiing, snowboarding or tubing at the area, such dangers are recognized and accepted whether they are marked or unmarked. Ski, snowboard and tube on slopes of your ability and read trail maps.
The user realizes that falls and collisions do occur and injuries may result and therefore assumes the burdens of skiing, snowboarding and tubing under control at all times.
. . . .
The user of this ticket assumes all risk of personal injury or loss or damage to property.
While Dawson did not read the fine print of the ticket, she testified that she had read similar language on a ticket when she snowtubed previously.
Standing at the top of the hill, Dawson saw that there was a fence directly behind a [*3] pillow barrier at the foot of the hill. The pillow barrier was composed of several large, foam-filled pads that were tied together with thick rope and that in turn were tied to the fence. Dawson testified that the conditions on the hill were icy and that she had no control over the speed or direction of travel of her tube during the descent. On her first run, Dawson snowtubed down the hill with five of her friends. All six linked their tubes together. When Dawson reached the bottom of the hill, she “flipped upside down” as she hit the pillow barrier. An Afton Alps employee told her that the facility allowed only two snowtubers to go down the hill together because linking tubes increases the speed of descent. Dawson testified that she continued to snowtube down the hill linked with a friend’s tube, and she hit the pillow barrier “very hard” each time. After snowtubing for approximately an hour and a half, Dawson and her boyfriend snowtubed down the hill with their tubes linked together. At the end of the run, Dawson flipped off her tube and her body hit the fence, injuring her left leg.
Dawson asserts that her bodily injury was directly and proximately caused by Afton Alps’s negligence. [*4] The district court granted Afton Alps’s motion for summary judgment, concluding that Dawson’s claims were barred by the doctrine of primary assumption of the risk. This appeal follows.
DECISION
“On appeal from summary judgment, we must review the record to determine whether there is any genuine issue of material fact and whether the district court erred in its application of the law.” Dahlin v. Kroening, 796 N.W.2d 503, 504-05 (Minn. 2011). “[T]he applicability of primary assumption of the risk may be decided by the court as a matter of law when reasonable people can draw only one conclusion from undisputed facts. . . . [A]n appellate court reviews that decision de novo.” Grady v. Green Acres, Inc., 826 N.W.2d 547, 549-50 (Minn. App. 2013) (alterations in original).
Primary assumption of the risk acts as a complete bar to a plaintiff’s recovery. Armstrong v. Mailand, 284 N.W.2d 343, 348 (Minn. 1979). Minnesota courts have applied primary assumption of the risk to cases involving participants in inherently dangerous sporting activities. See Wagner v. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986) (rollerskating); see also Grisim v TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874, 876 (Minn. 1987) (golf); Moe v. Steenberg, 275 Minn. 448, 450-51, 147 N.W.2d 587, 589 (1966) (ice skating); Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn. App. 2007) (skiing), review denied (Minn. Aug. 21, 2007); Schneider ex rel. Schneider v. Erickson, 654 N.W.2d 144, 152 (Minn. App. 2002) (paintball); Snilsberg v. Lake Wash. Club, 614 N.W.2d 738, 746-47 (Minn. App. 2000) (diving), review denied (Minn. Oct. 17, 2000); Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn. App. 1996), (snowmobile racing), review denied (Minn. Jan. 29, 1997); Swagger v. City of Crystal, 379 N.W.2d 183, 184-85 (Minn. App. 1985) (softball), review denied (Minn. Feb. 19, 1986). In Grady, this court recently held that primary assumption of [*5] the risk applies to adult snowtubers because it is an inherently dangerous sport. 826 N.W.2d at 552.
Here, the doctrine of primary assumption of the risk relates to Afton Alps’s legal duty to protect Dawson, a snowtuber, from the risk of harm.
Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .
In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.
Id. at 550.
“The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.” Id. at 551 (citing Peterson, 733 N.W.2d at 792). “Application of the doctrine requires actual, rather than constructive, knowledge.” Snilsberg, 614 N.W.2d at 746.
A. Duty of Care
“The first step in determining whether primary [*6] assumption of the risk applies is to determine whether the defendant owed a duty to the plaintiff.” Grady, 826 N.W.2d at 550. Afton Alps acknowledges that it owed Dawson the duty of reasonable care. See Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59 (Minn. App. 1989) (holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.” Snilsberg, 614 N.W.2d at 744.
Dawson argues that Afton Alps breached its duty because it failed to warn her that she could be injured by colliding with the fence, and Afton Alps should have either removed or properly cushioned the fence. But Dawson offers no evidence other than her own argument that such measures would have lessened the inherent risks associated with snowtubing. See Grady, 826 N.W.2d at 550 (dismissing appellant’s assertion that respondent was negligent in reducing risk of collision with another snowtuber when it failed to provide numerous safety measures on the course).
A well-known, incidental risk of snowtubing is the possibility of colliding with a fixed object. Snowtubing is a sport, [*7] like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” Id. Even if Afton Alps had a duty to warn, it met that duty when it informed Dawson of the risk of possibly colliding into a fixed object, such as the fence. Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.”
B. Knowledge and appreciation of the risk
Actual knowledge of a sport’s risks may be inferred from experience in the sport. Grady, 826 N.W.2d at 551; see also Snilsberg, 614 N.W.2d at 746 (concluding that appellant’s actual knowledge of the danger of diving into the lake from the dock was established by her general knowledge as an experienced swimmer and diver and specific knowledge of the shallow water at the dock).
Dawson argues that she did not have actual knowledge that she could suffer severe harm from colliding with the fence while snowtubing. But the record supports the district court’s determination that Dawson had such actual knowledge. Dawson testified that she had general knowledge [*8] of snowtubing because she had done it at least once before. Dawson also had specific knowledge that she could collide with the fence while snowtubing–she saw that the fence was located directly behind the pillow barrier at the foot of the hill. Dawson knew of the icy conditions on the hill that evening and that she was unable to control her tube as it went down the hill. An Afton Alps employee told Dawson after her first run that linking tubes increases the speed of descent. Despite her knowledge of these risks, she continued to snowtube down the hill.
The record also supports the district court’s conclusion that Dawson appreciated the risk of being injured by colliding with the fence. Dawson wore a ticket on her jacket stating that she acknowledged that “obstacles and hazards . . . may exist throughout the area” and “collisions do occur and injuries may result,” and that she “recognized and accepted those dangers” and “assume[d] all risk of personal injury.”
Although Dawson insisted that she was unaware that she could be injured by colliding with the fence, she testified that it was possible that she could collide with other persons or objects while snowtubing and that snowtubing is a sport [*9] that cannot be made completely safe. The record supports the district court’s conclusion that Dawson knew and appreciated the risk of a collision with the fence.
The district court also properly concluded that Dawson had a chance to avoid the risk. See Grady, 826 N.W.2d at 552 (concluding appellant had the chance to avoid the risk of colliding with another snowtuber by not going down the hill). Dawson could have avoided the risk by not snowtubing that evening. The district court noted that when Dawson stood at the top of the hill, “she could see and appreciate the conditions then existing” and that she “was aware from her previous trips down the hill that the hill was icy and that she would in all likelihood run into the [pillow barrier], and possibly the fence, at the end of her run.” The record supports the district court’s conclusion.
C. Expert testimony
Dawson argues that primary assumption of the risk is inapplicable here because her liability expert testified that the fence was not a well-known risk incidental to snowtubing. But colliding with a fixed object is a well-known risk of snowtubing, and here the fence was an obvious fixed object. No genuine issue for trial exists when “the record taken as a [*10] whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). No genuine issue of fact exists here because the evidence is conclusive, and there is no fact issue for a jury to decide. See Snilsberg, 614 N.W.2d at 744 (holding that applicability of primary assumption of the risk is “[g]enerally a question for the jury” but that it “may be decided as a matter of law” when the evidence is conclusive).
The record supports the district court’s determination that Dawson’s injuries resulted from the inherent risks of snowtubing, and it did not err by granting Afton Alps’s motion for summary judgment.
Affirmed.
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Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576
Posted: October 23, 2014 Filed under: Legal Case, Minnesota, Zip Line | Tags: Appeal, Camp Shamineau, challenge course, Linda Timmer, Minneapolis, Minnesota, Minnesota Court of Appeals, Minnesota Supreme Court, Platform, Ropes course, Shamineau Adventures, Trial court, zip line Leave a commentTimmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576
Linda Timmer, et al., Respondents, vs. Shamineau Adventures, Appellant.
A04-2458
COURT OF APPEALS OF MINNESOTA
2005 Minn. App. Unpub. LEXIS 576
December 13, 2005, Filed
NOTICE: [*1] THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.
SUBSEQUENT HISTORY: Review denied by Timmer v. Shamineau Adventures, 2006 Minn. LEXIS 73 (2006)
Subsequent appeal at, Remanded by Timmer v. Shamineau Adventures, 2007 Minn. App. Unpub. LEXIS 351 (2007)
PRIOR HISTORY: Morrison County District Court. File No. CX-03-261. Hon. John H. Scherer.
DISPOSITION: Affirmed.
COUNSEL: For Appellant: Robert G. Haugen, Jason M. Hill, Johnson & Lindberg, P.A., Minneapolis, MN.
For Respondent: Luke M. Seifert, Michael, T. Milligan, Heidi N. Thoennes, Quinlivan & Hughes, P.A., St. Cloud, MN.
JUDGES: Considered and decided by Willis, Presiding Judge, Randall, Judge, and Huspeni, Judge. 1
1 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
OPINION BY: RANDALL
OPINION
UNPUBLISHED OPINION
RANDALL, Judge
This is an appeal from the district court order denying a motion for JNOV but granting a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering. After respondents accepted the conditional remittitur, appellant brought this appeal contending: (a) it is entitled to a Schwartz hearing based on a juror’s allegations of misconduct in reaching the verdict; (b) it is entitled to an unconditional new trial because of juror misconduct on the face of the special [*2] verdict form; (c) it is entitled to a new trial on liability due to the erroneous admission into evidence of an unqualified expert’s opinions; and (d) the court erred in allowing respondent’s expert to testify to opinions undisclosed prior to trial and denying appellant’s request for a continuance. Respondents filed a notice of review arguing that the conditional remittitur was unsupported by the evidence. We affirm on all issues.
FACTS
This appeal stems from a tort action brought by respondents Linda Timmer and her husband Jere Timmer (collectively “respondents”) against appellant Shamineau Adventures. Appellant is one of five subdivisions that are collectively referred to as “Shamineau Ministries.” Appellant’s subdivision consists of a ropes course that includes various elements and obstacle courses. One of the elements of the ropes course is a zip line that consists of a 300-foot cable that is secured to a tower structure on a hill, traverses a valley, and ends at a tree located at a lower point on the opposite side. The cable drapes across the valley, and gradually rises as it nears the landing area in front of the tree to which it is attached. The cable is threaded through [*3] a pulley system and a lanyard rope is attached to the pulley. At the end of the lanyard is a carabiner that has a hinged gate on one side that is spring loaded. A zip line rider is specially body-harnessed by camp personnel, and connected to another carabiner clip attached to the harness. Both carabiners are equipped with screw-lock devices and spring tension hinges that prevent them from opening accidentally.
To ride the zip line, the rider’s harness carabiner is attached to the zip line carabiner. The rider then steps from the higher end platform, gliding down the cable across the valley. The rider slows as the calibrated slack in the cable and the resulting incline brings the rider to a slow landing on the gradual upslope of the lower end hill. The harness carabiner is then disconnected from the zip line by an assistant stationed at the lower end of the hill, and the pulley and lanyard assembly is walked back up to the higher end platform by the rider using a tow-rope attached to the lanyard.
In October 2001, a group of students and teachers from the Little Falls School District went to Camp Shamineau. Included in the group was Timmer, a special education teacher in the Little [*4] Falls School District. On October 11, while “roving” the ropes course and generally supervising her students, Timmer was approached by Troy Zakariasen, the ropes course director. Zakariasen asked Timmer if she would be willing to help uncouple students at the receiving end of the zip line while he briefly attended to other duties. Timmer agreed, and Matthew Stanghelle, a Shamineau staff member, showed Timmer how to unhook the zip line riders. Stanghelle spent approximately five minutes with Timmer, showing her the procedure by demonstrating on incoming zip line riders. Stanghelle then left the landing area to assist other students, teachers, and staff. Although Timmer had been to Camp Shamineau three or four times prior to October 11, she had never attended any training relative to the ropes course, which typically includes two to three weeks of training riders.
After Stanghelle left, the next rider on the zip line was 14-year old Tracie Boser. When Boser arrived at the landing area, Timmer grabbed Boser and tried to unhook her from the harness. As Timmer tried to unscrew the safety harness, Boser began drifting backwards. Timmer instinctively grabbed onto Boser to prevent her from [*5] coasting back to the sender, but Timmer was unable to maintain her footing. Boser then glided back toward the middle of the zip line with Timmer hanging onto Boser’s harness. When they reached the mid-point, approximately 25 feet above the valley, Timmer was unable to maintain her grip on the harness, and she fell to the ground, sustaining serious injuries. Timmer brought this tort action alleging negligence on the part of Shamineau Adventures. Jere Timmer filed a claim for loss of consortium.
Four days prior to the commencement of trial, respondents served upon appellant a memorandum issued by Richard Gauger, an engineer retained by respondents to serve as an expert witness. Gauger’s memorandum concluded that, in his opinion, the landing area of the zip line was unsafe, and that the landing area should involve one or more trained persons working together to assist the rider in arriving safely. Appellants moved for an order excluding Gauger’s new opinions, or, in the alternative, for a continuance due to the untimely disclosure of the new evidence. The district court denied the motion, holding that the issue of the landing area could reasonably have been anticipated in light of the [*6] nature of the case.
A jury trial was held from June 21, 2004, through June 29, 2004. At trial, Gauger testified that he has a bachelor’s degree in industrial engineering, and that he is a consulting engineer licensed as a professional engineer. Gauger also testified that his work history included assisting with design and development of construction projects, and some investigative work with regard to recreational activities. Appellant objected to Gauger’s testimony on the basis that he was unqualified as an expert witness. The district court overruled the objection, and Gauger testified in accordance with his June 17 memorandum, that the zip line was dangerous because the slope exceeded the American with Disabilities Act (ADA) standards for ramps and other standards typically used on construction projects.
The jury heard extensive testimony concerning Timmer’s injuries and her present physical condition. Dr. Joseph Nessler testified that as a result of her accident, Timmer suffered “multiple injuries, including pelvic fractures, sacral or tailbone fractures, spinal fracture, left femur fracture, left tibia fracture, and right calcaneus fracture.” Dr. Nessler, Dr. Jeffrey Gerdes, [*7] and Dr. Gregory Schlosser all testified that Timmer suffers from various permanent disabilities as a result of the accident, and all agreed she will have problems lifting, bending, stooping, twisting, and standing. Timmer testified that she is medically disabled and was forced to retire from teaching as a result of the fall.
On the verdict form, the jury determined that appellant was 60% at fault and Timmer was 40% at fault. The jury awarded appellant damages in excess of $ 4.5 million, and after applying the mathematical formula called for by the jury allocation of fault, the net verdict to respondents was $ 2,783,949. Shortly thereafter, James Albrecht, a juror in the case, sent a letter to the district court and the attorneys for both parties. Albrecht stated that the jury had made a mistake in selecting the damages. According to Albrecht, the jury had selected the damages believing that respondents would recover 20% of the damages awarded; deriving this figure by taking appellant’s 60% fault and subtracting respondent’s 40% fault. Appellant subsequently moved the district court for a Schwartz 2 hearing based on Albrecht’s letter. The district court first ruled the letter [*8] inadmissible, and then denied the motion for a Schwartz hearing.
2 See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).
Following the district court’s order denying the request for a Schwartz hearing, appellant moved for a new trial and JNOV. The district court denied the motion for JNOV, but granted a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering, reducing the amount of the recoverable verdict from $ 3,000,000 to $ 1,650,000. Respondents accepted the conditional remittitur. Shamineau appealed. Respondents then served and filed their own notice of review objecting to the remittitur.
DECISION
I.
Appellant argues that it is entitled to a Schwartz hearing based on Albrecht’s letter stating that the jury had made a mistake in selecting the damages. [HN1] “The standard of review for denial of a Schwartz hearing is abuse of discretion.” State v. Church, 577 N.W.2d 715, 721 (Minn. 1998). [*9]
In Schwartz, the supreme court established a method for inquiring into allegations of juror misconduct. 258 Minn. at 328, 104 N.W.2d at 303. A Schwartz hearing may also be conducted to correct a clerical error in a jury verdict. Erickson by Erickson v. Hammermeister, 458 N.W.2d 172, 175 (1990), review denied (Minn. Sept. 20, 1990).
[HN2] Although trial courts are urged to be fairly lenient in the granting of Schwartz hearings, their purpose is to determine juror misconduct, such as outside influence improperly brought to bear on jurors. The purpose of a Schwartz hearing does not include the correction of a miscomprehension by a juror or jurors. The assertion that the jury was confused and did not understand the effect of the verdict has been rejected as a basis for a Schwartz hearing. Jurors may not impeach their verdict on the basis that they did not understand the legal effect of that verdict.
Senf v. Bolluyt, 419 N.W.2d 645, 647 (Minn. App. 1988) (quoting Frank v. Frank, 409 N.W.2d 70, 72-73 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987)), review denied (Minn. Apr. 15, 1988).
[*10] Here, the district court reviewed the letter for purposes of the Schwartz hearing motion, and concluded that:
There has been no evidence of juror misconduct in this matter. The evidence received did not relate to actions outside of the deliberations that would constitute misconduct. On the contrary, the evidence reveals that during deliberations the jury may have misunderstood or misapplied the law as presented in the jury instructions. However, under Minnesota cases, this does not constitute juror misconduct such that a Schwartz hearing must be held.
The record supports the district court’s conclusion that there were no clerical errors and no evidence of jury misconduct. Albrecht’s letter fails to demonstrate evidence of juror misconduct, but, instead, indicates that the jury may have misapplied the law. The district court properly denied appellant’s request for a Schwartz hearing. See Senf, 419 N.W.2d at 648.
For purposes of the motion, appellant concedes that even if Albrecht is correct and that the jury misunderstood the instructions regarding comparative fault, that “misunderstanding” is not grounds for a new trial. Instead, appellant [*11] argues that the letter is evidence of a “compromise verdict,” and that a compromise verdict is grounds for a new trial. Appellant argues that because a compromise verdict constitutes juror misconduct, it is entitled to a Schwartz hearing.
[HN3] A “compromise” verdict occurs when the jury awards an amount that reflects a compromise between liability and proven damages. See Schore v. Mueller, 290 Minn. 186, 190, 186 N.W.2d 699, 702 (1971). When there is an indication that inadequate damages were awarded because the jury compromised between the right of recovery and the amount of damages, a new trial on damages is appropriate. Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn. 1981).
We agree with the district court that [HN4] just a claim that the jury misapplied jury instructions in apportioning damages does not equate to a compromised verdict. Case law uniformly revolves around allegations by plaintiffs that damages were compromised too low based on proven liability. See, e.g., Vermes v. American Dist. Tele. Co., 312 Minn. 33, 44, 251 N.W.2d 101, 106-07 (Minn. 1977) (holding that because the jury simply misunderstood proof of damages and gave [*12] an inadequate award, it was not a compromise verdict);Schore, 290 Minn. at 190, 186 N.W.2d at 702 (remanding for a new trial because the jury’s award of damages was not supported by the evidence in light of the plaintiff’s proven damages and represented a compromise verdict); Kloos v. Soo Line R.R., 286 Minn. 172, 177-78, 176 N.W.2d 274, 278 (1970) (ordering a new trial on the basis that the jury’s award of inadequate damages constituted a compromise verdict). This case is novel. Appellant does not argue that the damages were inadequate, but rather argues that the damages awarded were in excess of the jury’s intent. We conclude that even if the jury did not fully grasp the mathematics of comparative negligence (an unfortunate but true syndrome that goes back decades to the origins of comparative negligence), plaintiffs and defendants have understood for all those years that if even after careful argument by attorneys in their closing arguments, juries do not exactly “get” comparative negligence. It is not “misconduct” and does not call for a Schwartz hearing.
Appellant next argues that in light of Albrecht’s letter indicating that the jury made [*13] a mistake in apportioning damages, its due process rights to a fair trial were violated. Appellant argues that except for purposes of the Schwartz hearing motion, the district court held that under Minn. R. Evid. 606(b), 3 the letter was inadmissible for purposes relative to other post-trial motions, such as a motion for a new trial, remittitur, or JNOV. Appellant argues that it cannot be granted a new trial for juror misconduct without the excluded evidence, and a Schwartz hearing is only available when admissible evidence of juror misconduct is already in the record to justify the proceeding. Thus, appellant contends that the district court’s ruling of inadmissibility under Rule 606(b) denied it the opportunity to prove jury misconduct through a Schwartz hearing, thereby depriving appellant of the opportunity to develop a record supporting its right to a new trial.
3 Minn. R. Evid. 606(b) states:
[HN5] Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or to dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
[*14] [HN6] The Minnesota Supreme Court set forth the rationale for the exclusion of juror testimony about a verdict or the deliberation process. See State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000). In Pederson, the supreme court explained: “The rationale for the exclusion of juror testimony about a verdict or the deliberation process is to protect juror deliberations and thought processes from governmental and public scrutiny and to ensure the finality and certainty of verdicts.” Id. The court further explained the rationale of rule 606(b) by noting the concern that jurors be protected from harassment by counsel after the verdict. Id. These are legitimate public policy concerns that support Minn. R. Evid. 606(b). The accepted fact that from time to time juries make mathematical mistakes in rendering their verdict does not rise to the constitutional level of a due process violation of a party’s right to a fair trial. In essence, this second argument of appellant is a remake of the first argument that there was a compromise verdict. Since we conclude there was not a compromise verdict, the judge properly did not order a Schwartz hearing based on either theory.
[*15] II.
Appellant argues that it is entitled to an unconditional new trial due to evidence of juror misconduct on the face of the special verdict form. Appellant argues that the special verdict form is evidence of misconduct because, appellant claims, certain listed damages are irreconcilable. Specifically, appellant points out that: (1) the jury awarded Linda Timmer $ 3,000,000 in future pain and suffering, but only $ 150,000 in past pain and suffering; and (2) Linda Timmer’s award of $ 150,000 for past pain and suffering is the same as Jere Timmer’s past loss of consortium. Appellant asserts that the only logical explanation for the jury’s irrational damages awards is that the jury carefully attempted to engineer respondents’ net recovery, which constitutes misconduct.
[HN7] Anew trial may be granted when, among other things, the verdict is not supported by the evidence, errors of law occurred at the trial, or the damages awarded are excessive. Minn. R. Civ. P. 59.01. The district court has the discretion to grant a new trial and this court will not disturb its decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). [*16] An appellate court will uphold the denial of a motion for a new trial unless the verdict “is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).
The district court did take note of the difference between future and past pain and granted appellant’s motion for a new trial on the issue of future pain and suffering if respondents declined the court’s remittitur reducing that portion of the verdict from $ 3,000,000 to $ 1,650,000. However, respondents accepted the court’s remittitur, and that benefited appellants in the amount of $ 1,350,000. As an appellate court on review, we cannot now conclude that the remaining verdict is too high as a matter of law. Appellant is not entitled to a new trial based on its allegation that jury misconduct in calculating damages denied it of its right to a fair trial.
III.
Appellant argues that under the Frye-Mack, Daubert, and Kumho standards for expert testimony, it is entitled to a new trial because the district court erroneously admitted Gauger’s expert [*17] testimony. 4 [HN8] The decision to admit expert opinion testimony is within the broad discretion of the district court. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977). To obtain a new trial based on evidentiary error, a claimant must show not only that the ruling was erroneous, but also that it resulted in prejudice. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).
4 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn. 1980); Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
[HN9] Recently, the Minnesota Supreme Court reaffirmed its adherence to the Frye-Mack standard. See Goeb v. Tharaldson, 615 N.W.2d 800, 813-14 (Minn. 2000). 5 Under the Frye-Mack standard, a novel scientific theory may be admitted if two requirements are satisfied. [*18] Id. at 814. But if the expert’s opinions do not relate to “novel scientific methods,” a Frye-Mack analysis is not necessary. See State v. DeShay, 645 N.W.2d 185, 191 (Minn. App. 2002) (holding that a Frye/Mack analysis was not necessary where expert testimony based on the ten-point gang-identification criteria did not constitute novel scientific evidence), aff’d 669 N.W.2d 878 (Minn. 2003).
5 The court in Goeb also refused to adopt the principals of Daubert and its progeny, and, therefore, appellant’s reliance on the Daubert is misguided. 615 N.W.2d at 814-15.
Based on the scope of Gauger’s testimony, his opinions related to the safety of the zip line landing site, not the actual zip line itself, as claimed by appellant. An expert opinion as to whether the zip line landing area was unsafe, and whether there is something in the condition of the work site that is inherently dangerous does not involve a novel scientific theory. [*19] Gauger’s expert opinion testimony did not constitute “novel scientific testimony” and a complete Frye/Mack analysis was not necessary.
Although a Frye/Mack analysis was not necessary to be admissible, Gauger’s testimony must at least meet the requirements of Minn. R. Evid. 702. This rule provides [HN10] “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702.
Appellant contends that the district court abused its discretion by admitting Gauger’s testimony, claiming Gauger was not qualified to be an expert witness. We affirm the district court. The district court found that: (1) Gauger is a professional engineer and has completed investigative work involving recreational facilities; (2) Gauger has reviewed hundreds of sites for safety purposes; and (3) Gauger has a background and familiarity with work sites and recreational facilities such as playgrounds and the Camp Snoopy amusement park at the Mall of America. The record [*20] reflects that Gauger visited the accident site on more than one occasion and viewed the zip line and landing area in use. The record reflects that Gauger reviewed a manual from the camp and criteria developed by the Association of Challenge Course Technology. Gauger testified extensively as to his opinion that the landing area was unsafe, and explained his reasoning. We find there was proper foundation for Gauger’s expert opinions, and the district court properly admitted his testimony.
IV.
Appellant argues that it is entitled to a new trial because the district court failed to grant appellant’s motion for a continuance after respondents’ late disclosure of Gauger’s opinion testimony. [HN11] When a district court denies a continuance at trial, this court reviews the ruling for a clear abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). Denial of a continuance shall be reversed only if the decision prejudiced the outcome of the trial. Chahla v. City of St. Paul, 507 N.W.2d 29, 31-32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).
The record shows that, four days prior to the commencement of trial, respondents served [*21] upon appellant a memorandum issued by Gauger stating his opinions that the landing area was unsafe. In denying appellant’s motion for a new trial on the basis of the district court’s refusal to grant a continuance, the district court stated that “the late or new disclosures regarding Mr. Gauger’s testimony were really nothing more that a re-disclosure of what had previously been disclosed.” The court further noted that:
Previous disclosures indicated that Mr. Gauger felt that the workplace or landing site was unsafe because Linda Timmer was required to stand on a slope. This opinion did not change. The only disclosure that appeared to be at all new and different was a reference to the ADA slope percentage recommendations, and that Mr. Gauger adopted this slope percentage as a reasonable standard.
In addressing appellant’s claim that it could not respond to the new information because of the fact that its expert had already been deposed and the testimony was established, the court stated:
the fact of the matter is that [appellant’s] expert simply expressed the opinion that the zip line was safe and reasonable, and that the design of the landing area was necessary for [*22] the zip line to function properly. He did not offer any opinion as to what would have been a safe grade for the landing area of the zip line. If there had been a disagreement as to the actual percentage of slope or the standard to be applied, then there may be some basis for the argument. However, that is clearly not the situation at hand. Additionally, [appellant] was aware that the slope grade of the landing area was a basis for the negligence claim prior to the deposition of its expert witness, Bart Broderson. [Appellant] had the opportunity to ask Mr. Broderson his opinion relative to the degree or percentage slope of the landing area. No inquiry was made. [Appellant] cannot later claim prejudice when the subsequent disclosure differed little from the prior disclosure.
The record supports the district court’s decision. We conclude the district court properly denied appellant’s motion for a continuance.
V.
As is their right, even though respondents agreed to the conditional remittitur, once appellant challenged the verdict, respondents cross-reviewed on the issue of the remittitur. Respondents argue that the district court abused its discretion by granting a conditional [*23] remittitur of the damages awarded for future pain and suffering. The district court did reduce the amount of recoverable damages by approximately $ 1,350,000. Respondents argue that reduction was uncalled for in light of the medical testimony.
[HN12] Generally, a district court has broad discretion in determining if damages are excessive and whether the cure is a remittitur. Hanson v. Chicago, Rock Island & Pac. R. Co., 345 N.W.2d 736, 739 (Minn. 1984). When a district court has examined the jury’s verdict and outlined the reasons for its decision on a motion for remittitur, an appellate court is unlikely to tamper with that decision absent an abuse of discretion. Sorenson v. Kruse, 293 N.W.2d 56, 62-63 (Minn. 1980).
In ordering the conditional remittitur, the district court explained that:
The jury awarded $ 150,000 for past pain and suffering. Approximately 2.7 years had transpired from the date of the injury to the date of trial. Therefore, the $ 150,000 award equates to $ 55,555.56 per year for her past pain and suffering. On the other hand, the jury was advised that Linda Timmer had a 29-year life expectancy. The award of $ 3,000,000 for future [*24] pain and suffering, divided among those 29 years, would result in an annual award of damages for future pain and suffering in the amount of $ 103,448.28.
The district court addressed all the of the doctors’ expert testimony on future pain and suffering, and concluded that “although the medical testimony spoke of the need for future care or treatment, and the possibility of some degeneration, there was no specific testimony regarding future pain and suffering associated with any future surgery, care, or degeneration. Thus, the district court concluded that the drastic difference between the annual damages for past pain and suffering and future pain and suffering were not supported by the record.
In support of their claim that the remittitur was an abuse of discretion, respondents cited an exhaustive list of problems or potential problems and potential problems that Timmer will experience as a direct result of the accident. Respondents present a good argument. The record does not jump out on appellate review, as a record where a lack of a remittitur would be a miscarriage of justice. But, as noted, the decision to grant or deny a conditional remittitur is a highly discretionary [*25] decision within the purview of the district judge’s examination and weighing of the evidence. We conclude the district court’s conditional remittitur was reasoned and supported by the record.
Affirmed.
New Minnesota statute attempted to eliminate releases and thankfully, might have made release law in MN better
Posted: July 2, 2014 Filed under: Minnesota, Release (pre-injury contract not to sue) | Tags: Greater than Ordinary Negligence, Gross, Intentional Negligence, Minnesota, Minor, Negligence, parent, Release, Right to Sue, Wanton, Wilful Leave a commentThankfully, law does not change anything and to some extent, helps to reinforce releases in Minnesota and releases for minors.
Several attempts were made this year to eliminate releases in Minnesota. The statute specifically includes recreational activities in its language. The result signed into law prevents releases from relieving liability for greater than ordinary negligence.
Even if the language is in the release the language is severable, which means it does not void the release, just the specific language.
However, the law does not change anything because greater than ordinary negligence, gross, will, wanton or intentional negligence, have never been covered by a release.
Here is the new statute.
JUDICIAL PROOF
CHAPTER 604. CIVIL LIABILITY
ACTIONS INVOLVING FAULT GENERALLY
Minn. Stat. § 604.055 (2014)
604.055 WAIVER OF LIABILITY FOR NEGLIGENT CONDUCT
Subdivision 1. Certain agreements are void and unenforceable. –An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence is against public policy and void and unenforceable.
The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from conduct that constitutes ordinary negligence or for risks that are inherent in a particular activity.
Subd. 2. Party or parties. –For the purposes of this section, “party” or “parties” includes a person, agent, servant, or employee of that party or parties, and includes a minor or another who is authorized to sign or accept the agreement on behalf of the minor.
Subd. 3. Other void and unenforceable agreements. –This section does not prevent a court from finding that an agreement is void and unenforceable as against public policy on other grounds or under other law.
Subd. 4. Nonapplication to certain claims. –This section does not apply to claims against the state pursuant to section 3.736 or a municipality pursuant to section 466.02.
HISTORY: 2013 c 118 s 1
NOTES:
The good news is the definition of a party to the release includes a “…minor or another who is authorized to sign or accept the agreement on behalf of the minor.” That adds more support to Minnesota law, which has allowed a parent to sign away a minor’s right to sue. See Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Greater interest is the rest of the definition of a party. “…accept the agreement on behalf of the minor.” Can a Scoutmaster or Little League coach who has been told by the minor’s parents you can sign stuff for my kid, release someone from liability? Legally, it seems like a stretch, but this is the best argument I’ve ever seen for such actions.
The bill appears to be a compromise from an attempt to eliminate releases totally and after the arguments, this was the result. Thank heavens!
This does one thing; it legislatively states that releases are OK. You can’t argue now, that releases are void in Minnesota for any legislative reason. And maybe someone other than a parent can sign away a minor’s right to sue.
What do you think? Leave a comment.
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Wisconsin decision has left the status of release law in Wisconsin in jeopardy. Decision also brought in new defenses to releases in the state
Posted: April 28, 2014 Filed under: Health Club, Release (pre-injury contract not to sue), Swimming, Wisconsin | Tags: Fitness Center, Legal guardian, Minnesota, Release, swimming, Swimwest Family Fitness Center, Waiver, Wisconsin 1 CommentThis decision worked hard to defeat not only this release, but all releases in Wisconsin, even though the dissent laid out great arguments why the majority’s decision was not based on any business principle. Even a concurring opinion thought the majority decision was too broad.
Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2
Date of the Decision: January 19, 2005
Plaintiff: Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem
Defendant: Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company
Plaintiff Claims:
Defendant Defenses: Release
Holding: for the Plaintiff
In this decision, the Wisconsin Supreme Court set release law back in the state. The decision, Atkins v. Swimwest violated a release on numerous grounds that would not hold up in other states. In a decision that may invalidate all releases in Wisconsin, the Court ruled that a release used by a swim club in conjunction with the registration statement was invalid as against public policy.
The plaintiff was the only surviving heir of the deceased and a minor. Consequently, the plaintiff was represented by a guardian ad litem. This is a person appointed by the court to represent the minor. The guardian ad litem may or may not be an attorney.
The decedent went to the defendant’s swimming pool for physical therapy. She entered the pool that day and was observed swimming a sidestroke up and down the length of the pool. Soon thereafter she was observed at the bottom of the pool. She was rescued, and CPR was started. She was transported to a hospital where she died the next day.
The decedent was not a member of the swim club, so she was required to sign a guest registration/release form. The form was titled “Guest Registration.” The form was a five 1/2 inch by five 1/2 inch card with release language that the court characterized as standardized. The card also required written personal information. The waiver information was below the registration information. The waiver language was:
I agree to assume all liability for myself without regard to fault, while at Swimwest Family Fitness Center. I further agree to hold harmless Swimwest Fitness Center, or any of its employees for any conditions or injury that may result to myself while at the Swimwest Fitness Center. I have read the foregoing and understand its contents.
The trial court dismissed the case based on the release. The appellate court certified the case to the Supreme Court of Wisconsin. Certified means they passed the case on up without a decision.
Summary of the case
The court first had a problem with the term fault. The term was described as overly broad. The court explained the term was not defined enough to indicate to the parties (the deceased) the exact legal claims that would be barred by the release. The court found the term fault could also cover intentional acts which the court specifically stated would violate public policy and consequently, void the release.
The court stated, “We have consistently held that “only if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” From this, statement appears the court wants the specific possible risks to be enumerated; however, that is an impossible job for most recreational activities.
The Supreme Court then looked at the Public Policy issues. The court called the public policy test a balancing test. The court required a balancing of the needs of the parties to contract versus the needs of the community to protect its members. No other court has balanced the issue of a release for a recreational activity this way. No other decision has surmised that the needs of the community include protecting individual members from freedom to contract. The court did not even consider the issue that the purpose of swimming by the decedent was for medical care: her physical therapy which might have had some public policy basis.
The court examined the release’s language in a two-step process. “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” The court stated the release served two purposes: (1) as a sign-in sheet for the facility and (2) as a release and therefore, did not meet the test they created.
In another statement the court stated, there was nothing conspicuous about the release language in the form. While other courts across the nation have continuously berated release writers about hiding the release language, wanting them to make sure the language was not hidden. Here the court goes one step further and wants the release language to be quite apparent and pointed out to the reader.
In one of the wildest statements in a court decision, the Supreme Court of Wisconsin stated that the decedent did not contemplate drowning.
…Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.
Although you might look at slipping on the wet deck or stubbing your toe as you entered the water, what other possible risks exist in swimming other than drowning?
The next major blow to releases in general was the bargaining argument. The court stated the release was void because there was no opportunity for the decedent to bargain over the release language.
We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form.
We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain.
The term bargain means the court wants possible signors of releases to be able to negotiate the exculpatory language out of the release. As argued by the dissent, (judge who disagrees with the majority opinion) this would require every firm to hire an attorney to negotiate each release with each patron. As a condition of insurance, most providers of recreational insurance and/or health club insurances are requiring that every participant sign a release. If a participant does not sign a release and the release is a policy condition, there will be no insurance available to defend a claim.
Even if you could purchase insurance without using a release, at what cost would not having a release be worth? Based on two cases that have occurred, the person who is injured is the person who did not sign the release. So the cost of not have a patron sign a release is equal to their possible claims. If you want to join the health club and sign a release the cost is $79.00 per month with a $100 membership fee. If you want to join without signing a release, the cost is $89.00 a month with a $5 million-dollar membership fee.
The failure bargain to remove the release language was a violation of public policy. How? The court does not enumerate, nor do the concurrence and the dissent provide much additional information; however, both the concurrence and the dissent recognize the fallacy of the bargain requirement.
In the one point of illumination, court summed up their decision in the last paragraph:
In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.
The dissent is a well-thought-out argument about what is good and bad about the release and what is very bad about the majority’s opinion; however, the dissent, a minority of one, has no real value.
So Now What?
The solution to this issue is to use the word negligence. Negligence has a specific legal definition and specifically/legally defines the parameter of the release. The only specific statement from the decision that could be considered directional in writing releases was the statement that the word release should have been used in the form.
Why not? Why risk having your release thrown out because you failed to put in one additional sentence.
The next problem was the release was part of a registration form. The court included this as a reason the release did not meet its public policy test. This problem would have been resolved if the release was on a separate sheet of paper and clearly marked with a heading and/or notice above the signature line that the document was a release.
The court then went on in this vein and stated the exculpatory language in the release should have been highlighted or been more visible to someone signing the release.
From this decision, in Wisconsin you must!
1. Your release must be on a separate and distinct piece of paper.
2. You release must be identified and clearly state it is a release.
3. The release must use the magic word “negligence” to be valid.
4. You need to list all of the possible injuries or risks that can befall the signor of the release.
5. Your release must be read by the parties and there should be a notice in the release that the signor read, understood and signed the release with the intention to give up their right to sue for injuries or death.
If you can, you should see if you can provide:
6. The opportunity for your patron to buy their way out of the release.
7. References to other competitors where a guest may be able to go to have a similar opportunity without signing a release.
8. 8. Make sure your insurance is up to date and adequate for the value of your business and your risk.
Always in any business.
9. Make sure your corporate records are up to date. If you are not incorporated or an LLC get incorporated now!
10. 10. Look into separating assets from operations in separate corporations or LLC’s and divide your business into separate, smaller entities to protect the business.
11. 11. Look into asset protection planning for your personal assets.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Moore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
Posted: February 20, 2014 Filed under: Legal Case, Minnesota, Minors, Youth, Children, Release (pre-injury contract not to sue), Sports | Tags: Baseball, Minneapolis, Minnesota, Minnesota Baseball Instructional School, Minor, parent, Release Leave a commentMoore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
Terry Moore, as father and natural guardian for minor, Thaddeus J. Moore, Appellant, vs. Minnesota Baseball Instructional School, Respondent.
A08-0845
2009 Minn. App. Unpub. LEXIS 299
March 31, 2009, Filed
NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.
PRIOR HISTORY: [*1]
Hennepin County District Court File No. 27-CV-07-11022.
DISPOSITION: Affirmed.
COUNSEL: For Appellant: Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN; and Stuart L. Goldenberg, Goldenberg & Johnson, Minneapolis, MN.
For Respondent: Marianne Settano, Theresa Bofferding, Law Office of Settano & Van Cleave, Bloomington, MN.
JUDGES: Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Connolly, Judge.
OPINION BY: CONNOLLY
OPINION
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant Terry Moore initiated this negligence action in district court on behalf of his minor son, T.J., following an incident in which T.J.’s eye was permanently injured while T.J. was participating in a baseball camp operated by respondent Minnesota Baseball Instructional School. The district court granted summary judgment to respondent. Because appellant had signed a valid agreement releasing respondent from liability for T.J.’s injury prior to enrolling in the camp, we affirm.
FACTS
Respondent operates summer baseball-instructional camps for students of varying ages. T.J. participated in one of respondent’s camps during June 2005. The camp was located on the grounds of the University of Minnesota. On the camp’s final day, students walked from Siebert baseball [*2] stadium to Sanford residence hall to have lunch. When the students were done eating lunch, they were given the option of going to a television lounge in the residence hall or going to the residence hall’s courtyard. T.J. and a number of other students went to the courtyard to play. While in the courtyard, students began throwing woodchips at each other. T.J. sustained a permanent eye injury when he was struck by a woodchip thrown by another student.
After T.J.’s father initiated suit, respondent moved the district court for summary judgment, arguing that an exculpatory clause contained in the camp’s registration materials insulated it from liability. The district court agreed with respondent and granted summary judgment. Appellant contends that the district court erred because there are material facts in dispute. Specifically, appellant argues that there are fact issues as to whether T.J.’s mother signed the emergency medical information form in question and whether the form contained the exculpatory clause as it is described by respondent. Appellant also contends that, if it does exist, then the district court erred in interpreting and upholding the exculpatory clause in the release. [*3] This appeal follows.
DECISION
[HN1] “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
I. It is not in dispute that T.J.’s mother signed the assumption-of-risk-and-release agreement.
Respondent was unable to produce the assumption-of-risk agreement and release signed by T.J.’s mother. Appellant contends that, because of this, there is a material factual dispute about whether T.J.’s mother signed the agreement.
Lee Swanson is respondent’s director. In his deposition, Swanson was asked about the method through which participants sign up for respondent’s camp. He explained that parents have the option of enrolling their children [*4] online, and that T.J.’s mother used this process to enroll her son. In order to enroll her son, T.J.’s mother first went to the camp’s website and filled out the enrollment form online. After filling out the form online, T.J.’s mother clicked on a link that submitted the enrollment form. Respondent has been able to produce a document generated from the camp’s archives as confirmation that T.J.’s mother filled out the enrollment form. Swanson testified that this document was based on information that is sent to the camp electronically upon the completion of a student’s enrollment form. Swanson testified that the camp does not receive the actual completed enrollment form.
Respondent has also produced a spreadsheet containing the roster of students who participated in the June 2005 camp that lists T.J. as a camp participant. Respondents were unable to produce a copy of the online enrollment form that T.J.’s mother filled out; however, they were able to produce a 2007 version of the enrollment form, and Swanson testified it was the same as the 2005 version that T.J.’s mother would have filled out:
ATTORNEY: I’m showing you what has been purported to in your interrogatory answers to be the [*5] summer camp enrollment [form] of ’07 which was the same — there’s a little note that says same as ’05; is that correct?
SWANSON: That’s correct.
ATTORNEY: That’s Exhibit Number 5? 1
SWANSON: Correct.
ATTORNEY: Do you recall anything different about this particular enrollment form from the one that existed in ’05?
SWANSON: That is the same.
1 Exhibit 5 is a copy of the 2007 summer enrollment form.
Swanson was next questioned about an emergency medical form that a student’s parent must sign before that student is allowed to participate in the camp:
ATTORNEY: This is Exhibit Number 7, can you identify what that is for us, please?
SWANSON: This is our emergency medical information form that a parent or guardian has to fill out, it gives specific information about primary contacts, about medical histories, about emergency contacts, it also gives information provided for policy numbers, insurance in case we have to ship the kid to the emergency room for some problem. Also it has a Recognition and Assumption of Risk Agreement that the parent or guardian has to sign along with the camper’s signature.
ATTORNEY: Is this something that’s on-line or is this sent to the parents to sign?
SWANSON: It is available [*6] on-line, but every kid that registers gets an e-mail sent, an attachment with this.
ATTORNEY: Do you have a specific copy of this that the Moores actually signed?
SWANSON: We were not able to retrieve it. Generally I have to destroy these because of valuable information or personal information on these.
ATTORNEY: Okay.
. . . .
ATTORNEY: Do you know for certain that this form was in place as of June of ’05?
SWANSON: Yes.
ATTORNEY: What happens if you don’t get a copy of this form
SWANSON: Kid cannot participate in camp.
ATTORNEY: So it is fair to say that your testimony is going to be that even though you couldn’t find a copy of this if he showed up to camp without his parents signing it he would not be allowed to participant
SWANSON: Correct.
ATTORNEY: So is it fair to say that you can make that assumption then that they did sign this agreement?
SWANSON: Yes.
ATTORNEY Okay. That’s Exhibit Number Seven?
SWANSON: Yes.
(Emphasis added.)
Exhibit seven contains the assumption-of-risk agreement that is at the heart of this appeal. It, under the headline “RECOGNITION & ASSUMPTION OF RISK AGREEMENT,” reads:
I, the undersigned parent/legal guardian of , authorize said child’s participation in the Minnesota [*7] Baseball Instructional School (MBIS) camp. It is my understanding that participation in the activities that make up MBIS is not without some inherent risk of injury. As such, in consideration of my child’s participation in the MBIS camp, I hereby release, waive, discharge, and covenant not to sue the MBIS and any and all Directors, Officers, and Instructors and the Regents of the University of Minnesota and its Directors, Officers, or Employee from any and all liability, claims, demands, action, and causes of action whatsoever arising out of or related to any loss, damage, or injury including death, that may be sustained by my child, whether caused by the negligence of the releases, or otherwise while participating in such activity, or while in, or upon the premises where the activity is being conducted.
The following colloquy occurred when respondent’s attorney questioned T.J.’s mother about the assumption-of-risk agreement:
QUESTION: Okay. I’m showing you what’s been marked Deposition Exhibit No. 2. Do you recognize that document?
ANSWER: I don’t recall it specifically.
QUESTION: Do you recall that that is an emergency medical information — or should I say — let me rephrase that. Do [*8] you recall filling out a health information form and emergency medical form for T.J. to attend the Minnesota Baseball Instructional School in either 2004 or 2005?
ANSWER: I don’t recall.
QUESTION: Okay. Do you deny having filled out an emergency form for T.J.?
ANSWER: I must have.
QUESTION: Okay. I’m going to ask you to look at both pages of that form and see if you recognize that form.
ANSWER: I don’t recall the form.
QUESTION: Okay. I’d like you specifically to read the second page of the form, recognition and assumption of risk agreement, and I’d like you to read that to yourself and tell me if you recognize that.
ANSWER: I don’t recall the form.
QUESTION: Do you deny having filled it out
ANSWER: I do not deny it, I just don’t recall.
(Emphasis added.)
Based on the above deposition testimony, there is no material fact in dispute that T.J.’s mother signed the emergency medical form containing the assumption of risk agreement. Swanson testified that the 2007 enrollment form he produced was the same as the 2005 version that T.J.’s mother would have used. He was able to produce a document generated from archived enrollment data that indicates T.J. enrolled in the camp. He was also able to produce [*9] a roster, containing T.J.’s name, of children who participated in the 2005 camp. Finally, he produced a copy of an emergency medical form that is e-mailed to parents upon completion of the enrollment form. He testified that this was the same version of the emergency medical form that was in place in 2005. He testified that a student would not be allowed to participate in the camp unless the emergency medical form was signed and returned to respondent. The emergency medical form contained the assumption-of-risk agreement with the release language.
T.J.’s mother does not deny filling out the emergency medical form containing the assumption-of-risk agreement. She only states that she does not recall filling it out but admits that she must have filled it out. Because she does not claim that she did not fill out the emergency medical form, and because Swanson testified that she did fill out the form, it is simply not in dispute that T.J.’s mother filled out the form. Appellant argues, in essence, that the district court made a credibility determination in giving greater weight to Swanson’s testimony than to T.J.’s mother. This is not the case because Swanson’s testimony and T.J.’s mother’s [*10] testimony are not in conflict. Swanson testified that T.J.’s mother filled out the emergency medical form. T.J.’s mother’s testimony does not contradict Swanson’s testimony; she only states that she does not remember filling it out, but that she must have filled it out, and that she does not deny doing so.
Finally, the text of the assumption-of-risk agreement is not in dispute. Swanson produced the 2007 version of the agreement and testified that the 2007 version is the same as the 2005 version. Appellant disputes this in his brief, but points to no evidence that contradicts this testimony. T.J.’s father did not present any evidence that the emergency medical form produced by respondent was different from the 2005 agreement that she “must have” filled out. In sum, there are no material facts in dispute. The district court did not make any credibility determinations and did not weigh the evidence. It simply applied the law to undisputed facts.
II. The exculpatory clause releases respondent from liability for any damage resulting from T.J.’s injury.
[HN2] “The interpretation of a contract is a question of law if no ambiguity exists, but if ambiguous, it is a question of fact . . . .” City of Va. v. Northland Office Props. Ltd. P’ship, 465 N.W.2d 424, 427 (Minn. App. 1991), [*11] review denied (Minn. Apr. 18, 1991).
[HN3] It is settled Minnesota law that, under certain circumstances, “parties to a contract may, without violation of public policy, protect themselves against liability resulting from their own negligence.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982). The “public interest in freedom of contract is preserved by recognizing [release and exculpatory] clauses as valid.” Id. at 923. (citing N. Pac. Ry. v. Thornton Bros., 206 Minn. 193, 196, 288 N.W. 226, 227 (1939)). But releases of liability are not favored by the law and are strictly construed against the benefited party. Id. “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id.
Appellant contends the district court erred in interpreting the exculpatory clause contained in the assumption-of-risk-and-release agreement because the events leading to T.J.’s injury were not covered by the exculpatory clause, and because T.J.’s injuries occurred on premises not covered by the exculpatory clause.
Regarding appellant’s first contention, the district court did not err in concluding [*12] that the events that resulted in T.J.’s injuries were covered by the exculpatory clause. Appellant’s argument on this point is that woodchip throwing is not an inherent risk of playing baseball. While this may be true, it is not dispositive in this case. As respondent noted, the “inherent risk” language found in the assumption-of-risk-and-release agreement is extraneous to the exculpatory clause because the sentence containing the “inherent risk” language precedes the exculpatory language. However, more important to the resolution of this appeal is determining what actions are covered by the term “activities” as it is used in the exculpatory clause. Appellant attempts to define the term “activities” narrowly, to mean only activities directly related to the game of baseball. This is contrary to a plain reading of the assumption-of-risk-and-release agreement. The first time “activities” occurs in the agreement, it is used to describe “the activities that make up the MBIS.” It is not limited to the activity of playing baseball; instead, it covers all of the activities encompassed by the respondent’s camp. Lunch-break activities were part of respondent’s camp. T.J. was injured during the [*13] lunch break. As such, the exculpatory clause, under a plain reading, does cover T.J.’s injury.
Regarding appellant’s second contention, the district court did not err in concluding that T.J.’s injuries occurred on premises covered by the exculpatory clause. Appellant argues that the residence hall courtyard, in which the injury occurred, is not part of the “premises” used for specific baseball instructional activities. As explained above, appellant’s definition is too narrow. As used in the assumption-of-risk-and-release agreement, “activities” refers to all of the activities that are part of the camp, rather than just activities directly related to baseball. Because lunch-break activities are part of the camp, those activities are covered by the assumption-of-risk-and-release agreement. As a result, the premises where lunch-break activities occurred are covered by the exculpatory clause.
III. The exculpatory clause does not violate public policy.
Finally, the district court was correct in concluding that the exculpatory clause did not violate public policy. 2
2 Appellant does not contend that T.J. was injured as a result of respondent’s intentional conduct.
[HN4] Even if a release clause is [*14] unambiguous in scope and is limited only to negligence, courts must still ascertain whether its enforcement will contravene public policy. On this issue, a two-prong test is applied:
Before enforcing an exculpatory clause, both prongs of the test are examined, to-wit: (1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision) . . . and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).
Id. (citations omitted).
The two-prong test describes what is generally known as a “contract of adhesion.” Anderson v. McOskar Enters., 712 N.W.2d 796, 800 (Minn. App. 2006). As explained in Schlobohm, [HN5] a contract of adhesion is
a contract generally not bargained for, but which is imposed on the public for necessary service on a ‘take it or leave it’ basis. Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly [*15] disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.
326 N.W.2d at 924-25.
Here, it is not in dispute that the exculpatory clause was part of a take-it-or-leave-it agreement. Neither appellant nor respondent argues that T.J.’s mother had the ability to negotiate the agreement. What the parties do dispute is the nature of the services being offered by respondent. Appellant argues that instructional baseball training is an educational activity and, thus, an essential public service. We disagree. Instructional baseball training is not a service that is either of great importance to the public, or a practical necessity for some members of the public. Furthermore, the services provided by respondent are not essential because there are other avenues to obtain instructional baseball training for children. See id. at 926 ( [HN6] “[I]n the determination of whether the enforcement of an exculpatory clause would be against public policy, the courts consider whether the party seeking exoneration offered services of great importance to the public, which were a practical necessity for some members of the public.”).
Because the [*16] district court did not err (1) in concluding that there was no material fact in dispute; (2) in interpreting the exculpatory clause; and (3) determining that the exculpatory clause did not violate public policy, we affirm.
Affirmed.
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Minnesota Sales Representative
Posted: March 17, 2013 Filed under: Minnesota | Tags: Commission (remuneration), IC, Independent Sales Rep, Minnesota, Payment, Rep, Sales, Wage Leave a commentLABOR, INDUSTRY
CHAPTER 181. EMPLOYMENT
PAYMENT OF WAGES
GO TO MINNESOTA STATUTES ARCHIVE DIRECTORY
Minn. Stat. § 181.13 (2012)
181.13 PENALTY FOR FAILURE TO PAY WAGES PROMPTLY
(a) When any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee. If the employee’s earned wages and commissions are not paid within 24 hours after demand, whether the employment was by the day, hour, week, month, or piece or by commissions, the employer is in default. The discharged employee may charge and collect the amount of the employee’s average daily earnings at the rate agreed upon in the contract of employment, for each day up to 15 days, that the employer is in default, until full payment or other settlement, satisfactory to the discharged employee, is made. In the case of a public employer where approval of expenditures by a governing board is required, the 24-hour period for payment does not commence until the date of the first regular or special meeting of the governing board following discharge of the employee.
(b) The wages and commissions must be paid at the usual place of payment unless the employee requests that the wages and commissions be sent through the mails. If, in accordance with a request by the employee, the employee’s wages and commissions are sent to the employee through the mail, the wages and commissions are paid as of the date of their postmark.
181.14 PAYMENT TO EMPLOYEES WHO QUIT OR RESIGN; SETTLEMENT OF DISPUTES
Subdivision 1. Prompt payment required.
(a) When any such employee quits or resigns employment, the wages or commissions earned and unpaid at the time the employee quits or resigns shall be paid in full not later than the first regularly scheduled payday following the employee’s final day of employment, unless an employee is subject to a collective bargaining agreement with a different provision. If the first regularly scheduled payday is less than five calendar days following the employee’s final day of employment, full payment may be delayed until the second regularly scheduled payday but shall not exceed a total of 20 calendar days following the employee’s final day of employment.
(b) Notwithstanding the provisions of paragraph (a), in the case of migrant workers, as defined in section 181.85, the wages or commissions earned and unpaid at the time the employee quits or resigns shall become due and payable within five days thereafter.
Subd. 2. Nonprompt payment. –Wages or commissions not paid within the required time period shall become immediately payable upon the demand of the employee. If the employee’s earned wages or commissions are not paid within 24 hours after the demand, the employer shall be liable to the employee for an additional sum equal to the amount of the employee’s average daily earnings provided in the contract of employment, for every day, not exceeding 15 days in all, until such payment or other settlement satisfactory to the employee is made.
Subd. 3. Settlement of disputes. –If the employer disputes the amount of wages or commissions claimed by the employee under the provisions of this section or section 181.13, and the employer makes a legal tender of the amount which the employer in good faith claims to be due, the employer shall not be liable for any sum greater than the amount so tendered and interest thereon at the legal rate, unless, in an action brought in a court having jurisdiction, the employee recovers a greater sum than the amount so tendered with interest thereon; and if, in the suit, the employee fails to recover a greater sum than that so tendered, with interest, the employee shall pay the cost of the suit, otherwise the cost shall be paid by the employer.
Subd. 4. Employees entrusted with money or property. –In cases where the discharged or quitting employee was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer shall have ten calendar days after the termination of the employment to audit and adjust the accounts of the employee before the employee’s wages or commissions shall be paid as provided in this section, and the penalty herein provided shall apply in such case only from the date of demand made after the expiration of the period allowed for payment of the employee’s wages or commissions. If, upon such audit and adjustment of the accounts of the employee, it is found that any money or property entrusted to the employee by the employer has not been properly accounted for or paid over to the employer, as provided by the terms of the contract of employment, the employee shall not be entitled to the benefit of sections 181.13 to 181.171, but the claim for unpaid wages or commissions of such employee, if any, shall be disposed of as provided by existing law.
Subd. 5. Place of payment. –Wages and commissions paid under this section shall be paid at the usual place of payment unless the employee requests that the wages and commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee’s wages and commissions are sent to the employee through the mail, the wages and commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section.
181.145 PROMPT PAYMENT OF COMMISSIONS TO COMMISSION SALESPEOPLE
Subdivision 1. Definitions. –For the purposes of this section, “commission salesperson” means a person who is paid on the basis of commissions for sales and who is not covered by sections 181.13 and 181.14 because the person is an independent contractor. For the purposes of this section, the phrase “commissions earned through the last day of employment” means commissions due for services or merchandise which have actually been delivered to and accepted by the customer by the final day of the salesperson’s employment.
Subd. 2. Prompt payment required.
(a) When any person, firm, company, association, or corporation employing a commission salesperson in this state terminates the salesperson, or when the salesperson resigns that position, the employer shall promptly pay the salesperson, at the usual place of payment, commissions earned through the last day of employment or be liable to the salesperson for the penalty provided under subdivision 3 in addition to any earned commissions unless the employee requests that the commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee’s commissions are sent to the employee through the mail, the commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section.
(b) If the employer terminates the salesperson or if the salesperson resigns giving at least five days’ written notice, the employer shall pay the salesperson’s commissions earned through the last day of employment on demand no later than three working days after the salesperson’s last day of work.
(c) If the salesperson resigns without giving at least five days’ written notice, the employer shall pay the sales-person’s commissions earned through the last day of employment on demand no later than six working days after the salesperson’s last day of work.
(d) Notwithstanding the provisions of paragraphs (b) and (c), if the terminated or resigning salesperson was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer has ten working days after the termination of employment to audit and adjust the accounts of the salesperson before the salesperson can demand commissions earned through the last day of employment. In such cases, the penalty provided in subdivision 3 shall apply only from the date of demand made after the expiration of the ten working day audit period.
Subd. 3. Penalty for nonprompt payment. –If the employer fails to pay the salesperson commissions earned through the last day of employment on demand within the applicable period as provided under subdivision 2, the employer shall be liable to the salesperson, in addition to earned commissions, for a penalty for each day, not exceeding 15 days, which the employer is late in making full payment or satisfactory settlement to the salesperson for the commissions earned through the last day of employment. The daily penalty shall be in an amount equal to 1/15 of the salesperson’s commissions earned through the last day of employment which are still unpaid at the time that the penalty will be assessed.
Subd. 4. Amount of commission disputed.
(a) When there is a dispute concerning the amount of the salesperson’s commissions earned through the last day of employment or whether the employer has properly audited and adjusted the salesperson’s account, the penalty provided in subdivision 3 shall not apply if the employer pays the amount it in good faith believes is owed the salesperson for commissions earned through the last day of employment within the applicable period as provided under subdivision 2; except that, if the dispute is later adjudicated and it is determined that the salesperson’s commissions earned through the last day of employment were greater than the amount paid by the employer, the penalty provided in subdivision 3 shall apply.
(b) If a dispute under this subdivision is later adjudicated and it is determined that the salesperson was not promptly paid commissions earned through the last day of employment as provided under subdivision 2, the employer shall pay reasonable attorney’s fees incurred by the salesperson.
Subd. 5. Commissions earned after last day of employment. –Nothing in this section shall be construed to impair a commission salesperson from collecting commissions on merchandise ordered prior to the last day of employment but delivered and accepted after termination of employment. However, the penalties prescribed in subdivision 3 apply only with respect to the payment of commissions earned through the last day of employment.
181.171 COURT ACTIONS; PRIVATE PARTY CIVIL ACTIONS
Subdivision 1. Civil action; damages. –A person may bring a civil action seeking redress for violations of sections 181.02, 181.03, 181.031, 181.032, 181.08, 181.09, 181.10, 181.101, 181.11, 181.12, 181.13, 181.14, 181.145, and 181.15 directly to district court. An employer who is found to have violated the above sections is liable to the aggrieved party for the civil penalties or damages provided for in the section violated. An employer who is found to have violated the above sections shall also be liable for compensatory damages and other appropriate relief including but not limited to injunctive relief.
Subd. 2. District court jurisdiction. –An action brought under subdivision 1 may be filed in the district court of the county wherein a violation is alleged to have been committed, where the respondent resides or has a principal place of business, or any other court of competent jurisdiction.
Subd. 3. Attorney fees and costs. –In an action brought under subdivision 1, the court shall order an employer who is found to have committed a violation to pay to the aggrieved party reasonable costs, disbursements, witness fees, and attorney fees.
Subd. 4. Employer; definition. –“Employer” means any person having one or more employees in Minnesota and includes the state and any political subdivision of the state. This definition applies to this section and sections 181.02, 181.03, 181.031, 181.032, 181.06, 181.063, 181.10, 181.101, 181.13, 181.14, and 181.16.
WordPress Tags: Minnesota,Sales,Representative,Statutes,LABOR,INDUSTRY,CHAPTER,EMPLOYMENT,PAYMENT,WAGES,ARCHIVE,DIRECTORY,Minn,Stat,FAILURE,employer,employee,hours,hour,earnings,settlement,approval,expenditures,accordance,EMPLOYEES,QUIT,RESIGN,DISPUTES,Subdivision,Prompt,agreement,provision,calendar,paragraph,workers,Subd,Nonprompt,faith,action,jurisdiction,cost,money,collection,disbursement,termination,expiration,adjustment,Place,purposes,COMMISSIONS,COMMISSION,SALESPEOPLE,Definitions,salesperson,person,basis,contractor,customer,association,corporation,addition,paragraphs,account,attorney,penalties,COURT,ACTIONS,PRIVATE,CIVIL,violations,district,relief,violation,respondent,disbursements,definition,upon,whether,five,thereon
States that allow a parent to sign away a minor’s right to sue
Posted: November 23, 2011 Filed under: Uncategorized | Tags: Alaska, Arizona, California, Colorado, Florida, Massachusetts, Minnesota, Minor, North Dakota, Wisconsin Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
|
State |
By Statute |
Restrictions |
| Alaska | Alaska: Sec. 09.65.292 | Sec. 05.45.120 does not allow using a release by ski areas for ski injuries |
| Arizona | ARS § 12-553 | Limited to Equine Activities |
| Colorado | C.R.S. §§13-22-107 | Some commentators consider the statute a little weak |
| Florida | Florida Statute § 744.301 (3) | |
|
By Case Law |
||
| California | Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990) | |
| Florida | Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 | Allows a release signed by a parent to require arbitration of the minor’s claims |
| Florida | Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 | Release can be used for volunteer activities and by government entities |
| Massachusetts | Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384 | |
| Minnesota | Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299 | |
| North Dakota | McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 | |
| Ohio | Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) | Maybe only for non-profits |
| Wisconsin | Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 | However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 voided all releases in the state |
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On the Edge, but not enough to really rely on |
||
| North Carolina | Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 | Ruling is by the Federal District Court and only a preliminary motion |
What do you think? Leave a comment.
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Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Posted: February 21, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Baseball, Baseball Camp, Child, Coach, JimMoss, Minnesota, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Summer Camp Leave a commentCase was a baseball camp where the minor was injured during horseplay.
Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
This is a pretty simple case. The defendants operated a baseball camp on the campus of the University of Minnesota. The plaintiff’s mother had signed her son up for the camp, online or electronically. On the last day after lunch a group of students went to the courtyard. The plaintiff sustained a permanent eye injury when they started throwing woodchips from the courtyard at each other.
The father sued on behalf of his son. The trial court, a district court in the opinion, granted the defendant’s motion for summary judgment. The father on his and his son behalf appealed.
The plaintiff first argued that the release, or assumption of the risk agreement as it was termed in the decision, should be “thrown out” because it could not be produced. Because the mother had signed online there was no signed document. On top of that, the system used by the defendant did not produce any document indicating who had signed what documents.
However, the defendant was able to show that the mother had signed other documents just like the release. A roster of those kids that had attended the camp that summer, with the injured minor’s name on it was produced. The camp through a director, also testified that if the mother had not signed the release, the minor would not have been allowed to attend the camp.
The mother’s deposition was also introduced. She could not deny filing out the forms online even though she did not remember the forms.
The plaintiff’s then argued that the language of the release did not cover the injury the minor sustained. The language only spoke to baseball and as such the release only covered injuries that the minor could have received playing baseball. Horsing around during free time therefore, was not covered by the release. The plaintiff also argued the language that excluded the claims; the release sentence was separate from the sentence that identified the risks. As such the release should be very narrowly construed.
Neither argument was accepted by the court. The court found that the release covered more than just baseball, and the release had to be read as a whole so the risk was incorporated into the exculpatory sentence.
The plaintiff then argued the exculpatory clause violated public policy. The court dismissed this argument. The court found that the baseball camp was not educational in nature. The training could be found through other sources and playing baseball was not essential or of great importance to members of the public.
So?
The rules of evidence have a procedure for admitting into trial documents that have been lost. The rule is based on procedure. The procedure to be allowed to go to a baseball camp required a parent to sign many documents. The child would not have been allowed at amp without signing all of the documents. A procedure was set up to show the mother had to have signed the release because her son was at the camp.
You should create a procedure for your business, camp or program. The best one I’ve seen for whitewater rafting was created by Mountain Waters Rafting. Guests were given their PFD’s (life jackets) when they handed in their releases. If a guest had on a PFD, the guest had signed a release.
The more you can identify a procedure that you used the same way every time, the easier to introduce a lost piece of paper.
Electronically, there can be several ways to make sure you can prove a person read and signed the release online. I first suggest you always tie a release into a credit card. The credit card company knows more about the holder of a credit card then you ever will. If the credit is accepted to pay for something on line, and the name on the release matches the name on the credit card you can prove the release was signed. If the trip or camp was paid for a release was signed.
You should also have a system that you are notified that each person has signed the documents. Create a way to download the information, name, address, etc. date and exact time the release was signed to your business computer and do so regularly. That information can be matched up, name, date and time to the credit card and payment used. Match this with your receipt of payment from the credit card company and you should have proof.
Make sure your release is written to cover all the risks of your program, business or activity. Here the language was broad enough the baseball program was covered for horseplay. How often do you feed guests, transport guests, and have guests just walking around that could be a chance to be injured. Your release needs to stop litigation, all types of litigation, not just what you face what you are selling to the public.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
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