Push a release too far, in a state that is not sure Releases should be valid, and you provide the court with the opportunity to void releases and indemnification in the state.

Non-mother brought a group of kids to climbing gym and signed release for the kids. One was hurt, and the climbing wall sued the non-mother for indemnification in the release for the damages of the injured child.

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

State: Connecticut; Superior Court of Connecticut

Plaintiff: Cindy Cannon PPA Emma Cannon (minor)

Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy

Defendant Third Party Plaintiffs: Kate Licata, Indemnifier

Plaintiff Claims: negligent in supervising the rock climbing activities

Defendant Defenses: release and indemnification

Holding: For the Defendant Third Party Plaintiff, Indemnifier

Year: 2020

Summary

When litigating a case, you don’t look to the future effects of what you are doing. You look at winning. That is the only thing, your client and the client’s insurance company want. That is the only thing as an attorney you are allowed to do. You must represent the client and win.

In this case, the defendant used every argument they could to try to win, and not only lost the case, but voided releases for recreation in the state an eliminated any value the indemnification clause might have had in a release.

Facts

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019. The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The defendant argued on appeal that:

Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis.

It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition.

Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

These three arguments made by the defendant are critical in how the court viewed the situation and more importantly the realities of using this type of document in a recreation case.

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

The court first set out the requirements to win a motion for summary judgment. In doing so it defined the term “a material fact.” “A material fact is a fact that will make a difference in the result of the case….”

“[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.

Summary judgment will not be granted if there is a material fact in question. So knowing the definition is important since most summary judgement claims revolve around whether there is a material fact that must be adjudicated.

The court then looked at the indemnification clause in the release; contractual indemnification. Under Connecticut law, indemnification is defined as:

Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification

Indemnification agreements are contracts and as such construed under the principles of contract law.

The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation

Additionally, for a contract to be valid, there must be mutual assent between the parties to create a contract and the parties to the contract must be reasonably clear.

The court then looked at the indemnification language in the release in this case.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The court did point out, but did not act upon the issue that release was not signed by anyone at the gym.

The court then looked at release law in Connecticut. The Supreme Court of Connecticut set forth three requirements for a release in a recreational activity to be valid.

(1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis.

The court then found that the release in this case violated public policy in Connecticut.

We conclude that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Meaning, a release cannot be used to protect the provider of a recreational activity that is open to the public and requires skill because there is a general expectation that those activities are safe. On top of that, the plaintiff lacked any knowledge, experience or skill to determine if the defendants’ facility were in good working order or safe.

To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.

The court looked at the statements from the guest’s point of view and found it illogical that the guest could make those judgements.

As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

The defendant also argued the release was an adhesion contract.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.

Because the plaintiff could not negotiate the release provisions, and her only option was not to participate, because of that, the court concluded the contract was an adhesion contract.

The court circled back to the knowledge and skill of the guest by looking at the facts, that the guests and injured child did not bring any equipment or provided any training, guidance and/or supervision to the children under the third party plaintiff’s care.

Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children.

Because the third party plaintiff had no knowledge or skill concerning climbing, she could not have been supervising the children while climbing, it does not matter whether or not she was “adequately supervising” the children because she could not. This created another whole in the indemnification argument and another issue that must be decided by the trial court.

This brought the court back to the indemnification issue.

To hold a third party liable to indemnify one tortfeasor for damages awarded against it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”

The definition in Connecticut basically ruled out the third party plaintiff as a possible indemnifier for the gym.

“Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.”

Since the third party defendant did not have any control over the situation because she lacked the knowledge, experience and skill to climb or supervise anyone else climbing and because she, and the children went to the gym because of the gym’s knowledge, skill, ability to see risks and the gym had the needed equipment, there could not be indemnification.

On top of that, because the court found the climbing gym had done such a poor job of prosecuting it’s indemnification claim the court found the claim had been abandoned.

The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”

That means the indemnification claim could not be brought back up at trial.

So Now What?

There is a dozen interesting statements found in this release that when brought to the light of reality will cause or should cause concern for the way some releases are written. Not legal as much as how the assumptions on how the law would work when applied to the facts which the court rejected.

  1. Having signor of the release accept the equipment and facility as is or to be in good shape, was determined to be a joke. The signor was coming to the facility for their expertise and had no expertise to make that determination on their own.

You don’t want to have your release thrown out because a clause in the release, no matter who it protects is false.

  1. Having the signor of the release agree that they are in control of the children they bring to the gym was found ridiculous for the same reasons.
  2. The Indemnification clause was not written to follow Connecticut law and as such was found to be worthless.
    1. Worse when argued by the defendant gyms, it was found the language, and their arguments were so futile as to be abandoned.
  3. The release placed so many burdens, which the signor could not get around; the release was found to be void because it violated public policy.

I have yet to read a case where an indemnification clause has been upheld in a release, unless the circumstances were very odd and the parties knowledgeable about what they were agreeing too.

Are there situations where there is a need, and you can properly write an indemnification clause in a release. Yes. However, the injured part will be indemnifying you not for your losses, but for the losses you incur when their actions involve a third party.

An example might be you are billed for the cost of search and rescue under your permit or concession agreement to find the lost guest. A well-written indemnification clause can be used to recover for the costs of these expenses, because the defendant did not cause the loss and is not trying to recover for its losses, only the losses the guest has made the defendant liable for.

The three arguments made by the defendant set forth in the summary will soon be present in many third party defenses I predict. They are simple yet set forth the reality of the people signing the indemnification clauses. Uniformly, the courts have struck down indemnification clauses when used to recover money for a plaintiff’s claim.

For more articles on Indemnification Clauses see:

Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook.

New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky-diving case.

Indemnification agreements? What are you signing?

One case where an indemnification agreement was upheld:

A federal district court in Massachusetts upholds indemnification clause in a release.

This case will have far reaching effect in other states.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Jim@Rec-Law.US

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

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How Long Should I hold onto Releases/Assumption of the risk Forms

There are several factors you need to find out before you can identify the exact number of years to hold on to contracts, assumption of the risk forms and releases. However, with modern technology, it does not matter anymore, hold onto them forever.

The old method

When boxes of releases were common, we used to calculate how long you should hold onto documents. The calculation relied on two major factors: The statute of limitations for a tort in your state and the age of the participant or person signing the document.

In most states, the statute of limitations for torts is two or three years. For an adult, you would hold on to a release for the statute of limitations plus one year. That plus one year is ” in case” (also translated meaning lawyer paranoia). That means in Colorado three years after an event, trip or whatever had ended you can shred the documents.

If the person was a minor, no matter if the minor signed it or their parent, you hold onto the document for the number of years until the minor turns eighteen (19 in Mississippi and 21 in Nebraska). (See The age that minors become adults.) You add those years to the statute of limitations.

As an example

Statute of Limitations in Colorado is two years for a tort.    2

Minor was 14 at the time of his injury: 18-14 =    4

One year just in case.    1

You would hold onto that release for seven years.    7

The reason for this is the minor can sue once he reaches the age of 18, until the statute of limitations runs. 99% of lawsuits for minors are started immediately, but you never know when a minor might decide that mom, and dad missed the boat when college tuition is needed.

However, sorting releases and assumption of the risk agreements signed by minors from those signed by adults was time consuming so the length of time to hold onto a release became forever. It was easier to collect and store the files then it was to sort them.

New Method = Forever, but a lot faster and easier

Scan the releases into a PDF file and store them on several hard drivers, thumb drives or in the cloud forever. You DO NOT need to sort them by name or separate them out into individual files. Just store them by date.

So, everyone who went Whitewater rafting on June 2, 2019 would be in the PDF dated 6.2.19. If you needed the release, you can just pull up the file and search or do a manual scan for the right release. Since a copy of the original is as good as the original, you do not need to keep the original. Colorado Rules of Evidence 1002; Federal Rules of Evidence 1002.

The exception to this rule would be if you know that someone was injured. You then need to go through a multi-step process.

  1. Scan the releases, including the one signed by the injured party and store them like all other releases. You do this with all the participants on the trip or program. You may need to contact the other parties as witnesses and having them in the same group as the injured party makes the other people at the event or on the boat easy to find.
  2. Collect all other necessary data that may be important years later. Examples of this might include:
    1. A roster of participants at the event
    2. A roster of staff attending the event
    3. All witness lists.
    4. All information and marketing material used to promote the event.
    5. Copy of the Weather report, water level, snow report, etc. for the day
    6. Program, Handouts, Agenda’s etc.
    7. Maintenance logs for equipment used in the event.
    8. Training, certifications, etc., of all staff for the activity
    9. Any photographs/videos of the activity
      1. Any photographs/videos from before the activity
      2. Any photographs/videos from after the activity
    10. Map of the area, as current as possible
    11. Etc.
  3. Take this information you have collected and scan it all into an electronic format.
    1. Send copies to your attorney(s)
    2. Send copies to your insurance company

      Tell them it is for safe keeping.

  4. Make paper copies of all paper and send a complete set of copies to your insurance company and attorney. Ask both what to do with the originals.
    1. Keep one good set of copies for yourself if you are told to send the originals to the insurance company or attorney, if not keep the originals.

For paper files, I suggest using a file or folder color that will attract attention, so they are not thrown out by accident. Red, Orange or Yellow good colors of files or folder colors to use. Keep the paperwork in a closed folder or envelope. Put everything in and seal it shut so nothing can fall out and the store this file somewhere so everyone knows where it is and why. If you find more information after you have sealed the first envelope or folder, create a second one, and write 1 of 2 and 2 of 2 on them. Put a large rubber band around both or secure them some way, so they do not get separated. Always right the last name of the injured party and the date on the outside so they don’t have to be opened to determine what files they contain.

After 10 years, you can shred these files.

Instead of having a warehouse full of releases or a back wall of your office with an additional 12 inches of insulation, you can have a hard drive of all the necessary documents needed in case of litigation.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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:
www.recreation-law.com

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,



E.M. v. House of Boom Ky., LLC (In re Miller), 2019 Ky. LEXIS 211, 2019 WL 2462697

E.M. v. House of Boom Ky., LLC (In re Miller), 2019 Ky. LEXIS 211, 2019 WL 2462697

In Re: Kathy Miller, as Next Friend of Her Minor Child, E.M.

v.

House of Boom Kentucky, LLC

No. 2018-SC-000625-CL

Supreme Court of Kentucky

June 13, 2019

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION CASE NO. 3:16-CV-332-CRS

COUNSEL FOR APPELLANT: Grover Simpson Cox Grover S. Cox Law Office Vanessa Lynn Armstrong U.S. District Court

COUNSEL FOR APPELLEE: Anthony M. Pernice Reminger Co., LPA

COUNSEL FOR AMICUS CURIAE KENTUCKY JUSTICE ASSOCIATION: Kevin Crosby Burke Jamie Kristin Neal Burke Neal PLLC

OPINION

VANMETER, JUSTICE

By order entered February 14, 2019, this Court granted the United States District Court, Western District of Kentucky’s request for certification of law on the following issue:

Is a pre-injury liability waiver signed by a parent on behalf of a minor child enforceable under Kentucky law?

After careful consideration, we hold that such a waiver is unenforceable under the specific facts of this case.

I. Factual and Procedural Background.

House of Boom, LLC (“House of Boom”) is a for-profit trampoline park located in Louisville, Kentucky. The park is a collection of trampoline and acrobatic stunt attractions. On August 6, 2015, Kathy Miller purchased tickets for her 11-year-old daughter, E.M., and her daughter’s friends to go play at House of Boom. Before purchasing the tickets, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability. The waiver reads:

(1) RELEASE OF LIABILITY: Despite all known and unknown risks including b[u]t not limite[d] to serious bodily injury, permanent disability, paralysis and loss of life, I, on behalf of myself, and/or on behalf of my spouse, minor child(ren)/ward(s) hereby expressly and volun[]tarily remise, release, acquit, satisfy and forever discharge and agree not to sue HOUSE OF BOOM, including its suppliers, designers, installers, manufacturers of any trampoline equipment, foam pit material, or such other material and equipment in HOUSE OF BOOM’S facility (all hereinafter referred to as “EQUIPMENT SUPPLIERS”) and agree to hold said parties harmless of and from any and all manner of actions or omission(s), causes of action, suits, sums of money, controversies, damages, judgments, executions, claims and demands whatsoever, in law or in equity, including, but no[t] limited to, any and all claim[s] which allege negligent acts and/or omissions committed by HOUSE OF BOOM or any EQUIPMENT SUPPLIERS, whether the action arises out of any damage, loss, personal injury, or death to me or my spouse, minor child(ren)/ward(s), while participating in or as a result of participating in any of the ACTIVITIES in or about the premises. This Release of Liability, is effective and valid regardless of whether the damage, loss or death is a result of any act or omission on the part of HOUSE OF BOOM and/or any EQUIPMENT SUPPLIERS.

The agreement goes on to state:

1. By signing this document, I understand that I may be found by a court of law to have forever waived my and my spouse and/or child(ren)/ward(s) right to maintain any action against HOUSE OF BOOM on the basis of any claim from which I have released HOUSE OF BOOM and any released party herein and that I have assumed all risk of damage, loss, personal injury, or death to myself, my spouse and/or my minor child(ren)/wards(s) and agreed to indemnify and hold harmless HOUSE OF BOOM and all EQUIPMENT SUPPLIERS from and against any all losses, liabilities, claims, obligations, costs, damages and/or expenses whatsoever paid, incurred and/or suffered by HOUSE OF BOOM and all EQUIPMENT SUPPLIERS as a result of the participation in ACTIVITIES in or about the facility by myself, my spouse and/or child(ren)/ward(s) and/or claims asserted by myself, my spouse and/or child(ren)/ward(s) against HOUSE OF BOOM and all EQUIPMENT SUPPLIERS related to such participation in ACTIVITIES. I have had a reasonable and sufficient opportunity to read and understand this entire document and consult with legal counsel, or have voluntarily waived my right to do so. I knowingly and voluntarily agree to be bound by all terms and conditions set forth herein.

The above waiver includes language that, if enforceable, would release all claims by (1) the individual who checked the box, (2) her spouse, (3) her minor child, or (4) her ward against House of Boom. Once Miller checked the box, E.M. participated in activities at House of Boom. She was injured when another girl jumped off a three-foot ledge and landed on E.M’s ankle, causing it to break. Miller, as next friend of her daughter, sued House of Boom for the injury. House of Boom, relying on Miller’s legal power to waive the rights of her daughter via the release, moved for summary judgment. The Western District of Kentucky concluded that House of Boom’s motion for summary judgment involved a novel issue of state law and requested Certification from this Court which we granted. Both parties have briefed the issue and the matter is now ripe for Certification.

II. Analysis.

The question before this Court is whether a parent has the authority to sign a pre-injury exculpatory agreement on behalf of her child, thus terminating the child’s potential right to compensation for an injury occurring while participating in activities sponsored by a for-profit company. Although an issue of first impression in the Commonwealth, the enforceability of a pre-injury waiver signed by a parent on behalf of a child has been heavily litigated in a multitude of jurisdictions. House of Boom categorizes these decisions in as those that enforced the waiver and those that did not, but the decisions of those jurisdictions more accurately fall into four distinct categories: (1) jurisdictions that have enforced a waiver between a parent and a for-profit entity;[1] (2) jurisdictions that have enforced waivers between a parent and a non-profit entity;[2] (3) jurisdictions that have declared a waiver between a parent and a for-profit entity unenforceable;[3] and (4) jurisdictions that have declared a waiver between a parent and a non-profit entity unenforceable.[4]House of Boom is a for-profit trampoline park, and eleven out of twelve jurisdictions that have analyzed similar waivers between parents and for-profit entities have adhered to the common law and held such waivers to be unenforceable.[5]

Pre-injury release waivers are not per se invalid in the Commonwealth but are generally “disfavored and are strictly construed against the parties relying on them.” Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005) (citation omitted). We analyze these agreements for violations of public policy. See Cobb v. Gulf Refining Co., 284 Ky. 523, 528, 145 S.W.2d 96, 99 (1940) (citing Restatement of Contracts § 575). The relevant public policy here is whether a parent has the authority to enter into an exculpatory agreement on their child’s behalf, negating any opportunity for a tort claim-a child’s property right-if House of Boom’s negligence causes injury to the child.

The general common law rule in Kentucky is that “parents ha[ve] no right to compromise or settle” their child’s cause of action as that “right exist[s] in the child alone,” and parents have no right to enter into contracts on behalf of their children absent special circumstances. Meyer’s Adm’r v. Zoll, 119 Ky. 480, 486, 84 S.W. 543, 544 (1905); see also Wilson v. Wilson, 251 Ky. 522, 525, 65 S.W.2d 694, 695 (1933) (“[W]hile the mother might enter into a contract regarding her rights, she could not contract away the rights of her unborn child[]”);GGNSC Stanford, LLC v. Rome, 388 S.W.3d 117, 123 (Ky. App. 2012) (“In light of the limited authority granted to custodians by KRS[6] 405.020 and KRS 387.280, we cannot conclude they are permitted to contractually bind their wards without formal appointment as guardians[]”). Thus, we must determine whether Kentucky public policy supports a change in the common law that would protect for-profit entities from liability by enforcing pre-injury liability waivers signed by parents on behalf of their children. First, KRS 405.020 provides that “[t]he father and mother shall have the joint custody, nurture, and education of their children who are under the age of eighteen (18).” However, this grant of custody and a parent’s right to raise their child, choose the child’s educational path, and make healthcare decisions on a child’s behalf has never abrogated the traditional common law view that parents have no authority to enter into contracts on behalf of their child when dealing with a child’s property rights, prior to being appointed guardian by a district court. Scott v. Montgomery Traders Bank & Trust Co., 956 S.W.2d 902, 904 (Ky. 1997).

In Scott, the parent at issue attempted to settle her child’s tort claim and fund a trust with the settlement funds without being appointed guardian by a district court. Id. This Court held that

[i]t is fundamental legal knowledge in this state that District Court has exclusive jurisdiction “. . . for the appointment and removal of guardians . . . and for the management and settlement of their accounts” and that a person must be appointed as guardian by the Court in order to legally receive settlements in excess of $10, 000.00.

Id. (quoting KRS 387.020(1), KRS 387.125(b)) (emphasis added). Additionally, our precedent dictates that even when acting as next friend, a minor’s parent has no right to compromise or settle a minor’s claim without court approval or collect the proceeds of a minor’s claim.[7] Metzger Bros. v. Watson’s Guardian, 251 Ky. 446, 450, 65 S.W.2d 460, 462 (1933). Thus, finding no inherent right on the part of a parent to contract on behalf of their child, the remaining question is whether public policy demands enforcement of these contracts within the Commonwealth.

House of Boom’s initial public policy argument is that a parent’s fundamental liberty interest “in the care and custody of their children” supports enforcing a for-profit entity’s pre-injury liability waiver signed by a parent on behalf of a minor child. Morgan v. Getter, 441 S.W.3d 94, 112 (Ky. 2014) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (“The liberty interest … of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court[]”). Although this Court recognizes a parent’s fundamental liberty interest in the rearing of one’s child, this right is not absolute, and the Commonwealth may step in as parens patraie[8] to protect the best interests of the child. See Hojnowski, 901 A.2d at 390 (“the question whether a parent may release a minor’s future tort claims implicates wider public policy concerns and the parens patriae duty to protect the best interests of children[]”); see also Cooper, 48 P.3d at 1235 n. 11 (parental release of child’s right to sue for negligence is “not of the same character and quality as those rights recognized as implicating parents’ fundamental liberty interest in the ‘care, custody and control’ of their children[]”). House of Boom argues that the parens patriae doctrine “is difficult to defend in a post-Troxel world.” However, if Troxel is read to grant parents the decision to enter into pre-injury liability waivers, then, logically, our court-appointed guardian statutes and statutes restricting a parent’s ability to settle claims post-injury would also infringe upon a parent’s fundamental liberty interest. As litigation restrictions upon parents have remained a vital piece of our Commonwealth’s civil practice and procedure, we do not recognize a parent’s fundamental liberty interest to quash their child’s potential tort claim.

House of Boom next argues that public policy concerns surrounding post-injury settlements between parents and defendants are not present when a parent is signing a pre-injury release waiver (signing in the present case being checking a box on an I phone), and therefore, the state only needs to step in to protect the child post-injury, not pre-injury. First, we note that since Meyer’s Adm’r and Metzger Bros., this Court and the legislature have protected minor’s rights to civil claims. See KRS 387.280. Indeed, “children deserve as much protection from the improvident compromise of their rights before an injury occurs [as our common law and statutory schemes] afford[] them after the injury.” Hojnowski, 901 A.2d at 387. As summarized in Hawkins, 37 P.3d at 1066,

[w]e see little reason to base the validity of a parent’s contractual release of a minor’s claim on the timing of an injury. Indeed, the law generally treats preinjury releases or indemnity provisions with greater suspicion than postinjury releases. See Shell Oil Co. v. Brinkerhoff-Signal Drilling Co., 658 P.2d 1187, 1189 (Utah 1983). An exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, however, relates to negligence that has already taken place and is subject to measurable damages. Such releases involve actual negotiations concerning ascertained rights and liabilities. Thus, if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario.

The public policy reasons for protecting a child’s civil claim pre-injury are no less present than they are post-injury, and we are unpersuaded by House of Boom’s arguments to the contrary.

Lastly, House of Boom argues that enforcing a waiver signed by a parent on behalf of a child to enter a for-profit trampoline park furthers the public policy of encouraging affordable recreational activities. In making this argument, House of Boom relies on the decisions of states that have enforced these waivers between a parent and a non-commercial entity. Granted, this Commonwealth has similar public policy to these jurisdictions to “encourage wholesome recreation for boys and girls” and to limit liability for those volunteering, in a variety of ways, to increase recreational and community activities across the Commonwealth. Wilson v. Graves Cty. Bd. Of Educ, 307 Ky. 203, 206, 210 S.W.2d 350, 351 (1948); see also KRS 162.055 (granting limited immunity to school districts for allowing the public to use school grounds for “recreation, sport, academic, literary, artistic, or community uses”); KRS 411.190(2) (“[t]he purpose of this section is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes[]”). However, the same public policy implications that apply when dealing with the voluntary opening of private property or a school district’s limited immunity allowing community use of school property do not apply when dealing with a commercial entity.

A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions. A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment. “If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.” Kirton, 997 So.2d at 358. Accordingly, no public policy exists to support House of Boom’s affordable recreational activities argument in the context of a commercial activity.[9]

HI. Conclusion.

Under the common law of this Commonwealth, absent special circumstances, a parent has no authority to enter into contracts on a child’s behalf. Based upon our extensive research and review of the relevant policy in this Commonwealth and the nation as a whole, we find no relevant public policy to justify abrogating the common law to enforce an exculpatory agreement between a for-profit entity and a parent on behalf of her minor child.[10] Simply put, the statutes of the General Assembly and decisions of this Court reflect no public policy shielding the operators of for-profit trampoline parks from liability.

All sitting. All concur.

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Notes:

[1] Maryland’s highest court is the only judicial body to enforce these waivers when one of the parties is a for-profit entity. However, Maryland’s court rules allow parents to “make decisions to terminate tort claims” without “judicial interference.” BJ’s Wholesale Club Inc. v. Rosen, 80 A.3d 345, 356-57 (Md. 2013) (citing Md. Code Ann. § 6-205). Kentucky does not have a similar provision in our court rules, statutes, or judicial decisions.

[2] See Kelly v. United States, 809 F.Supp.2d 429, 437 (E.D. N.C. 2011) (waiver enforceable as it allowed plaintiff to “participate in a school-sponsored enrichment program that was extracurricular and voluntary[]”); Hohe v. San Diego Unified Sch. Dist, 274 Cal.Rptr. 647, 649-50 (Cal.Ct.App. 1990) (upholding a pre-injury release executed by a father on behalf of his minor child which waived claims resulting from an injury during a school sponsored activity); Sharon v. City of Newton, 769 N.E.2d 738, 747 (Mass. 2002) (upholding a public school extracurricular sports activities waiver signed by a parent on behalf of a minor); Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 205 (Ohio 1998) (holding that public policy supporting limiting liability of volunteer coaches and landowners who open their land to the public “justified] giving parents authority to enter into [pre-injury liability waivers] on behalf of their minor children!]”).

[3] See In re Complaint of Royal Caribbean Cruises Ltd., 403 F.Supp.2d 1168, 1172-73 (S.D. Fla. 2005) (where “a release of liability is signed on behalf of a minor child for an activity run by a for-profit business, outside of a school or community setting, the release is typically unenforceable against the minor[]”); Simmons v. Parkette Nat’l Gymnastic Training Ctr., 670 F.Supp. 140, 144 (E.D. Pa. 1987) (invalidating a pre-injury release waiver signed by a parent in adherence with the “common law rule that minors, with certain exceptions, may disaffirm their contracts [based on] the public policy concern that minors should not be bound by mistakes resulting from their immaturity or the overbearance of unscrupulous adults[]”); Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002) (“[T]o allow a parent to release a child’s possible future claims for injury caused by negligence may as a practical matter leave the minor in an unacceptably precarious position with no recourse, no parental support, and no method to support himself or care for his injury[]”), superseded by statute, Colo. Rev. Stat. § 13-22-107(3)); Kirton v. Fields, 997 So.2d 349, 358 (Fla. 2008) (invalidating agreement between parent and for-profit ATV park, but limiting the holding to “injuries resulting from participation in a commercial activity[]”); Meyer v. Naperville Manner, Inc., 634 N.E.2d 411, 414 (111. 1994) (invalidating waiver between parent and for-profit horse riding stable); Woodman ex. rel Woodman v. Kera LLC, 785 N.W.2d 1, 16 (Mich. 2010) (holding, in a case against a for-profit inflatable play area, that state common law indicated that enforcement of a waiver signed by parent was “contrary to the established public policy of this state” and that the legislature is better equipped for such a change in the common law); Hojnowski v. Vans Skate Park, 901 A.2d 381, 386 (N.J. 2006) (“the public policy of New Jersey prohibits a parent of a minor child from releasing a minor child’s potential tort claims arising out of the use of a commercial recreational facility[]”); Ohio Cas. Ins. Co. v. Mallison, 354 P.2d 800, 802 (Or. 1960) (invalidating an indemnity provision in a settlement agreement-after settlement the child sustained further injury-in part because a parent’s duty to act “for the benefit of his child [is] not fully discharged where the parent enters into a bargain which gives rise to conflicting interests[]”); Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 651 (Tenn. Ct. App. 2017) (in holding a parent-signed waiver unenforceable, the court held that Tennessee had no public policy supporting the “desire to shield the operators of for-profit trampoline parks from liability[]”); Munoz u. IUaz Inc., 863 S.W.2d 207, 210 (Tex. App. 1993) (“in light of this state’s long-standing policy to protect minor children, the language, ‘decisions of substantial legal significance’in section 12.04(7) of the Family Code cannot be interpreted as empowering the parents to waive the rights of a minor child to sue for personal injuries[]”); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding that “a parent does not have the authority to release a child’s claims before an injury”); Scott v. Pac. W. Mountain Resort, 834 P.2d 6, 11-12 (Wash. 1992) (“Since a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury[]”).

[4] See Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 143 A.2d 466, 468-69 (Conn. 1958) (invalidating a waiver signed by a child’s parents allowing the child to attend Boy Scout camp); Galloway v. State, 790 N.W.2d 252, 259 (Iowa 2010) (invalidating a pre-injury release waiver signed by a parent on behalf of a child attending a school sponsored field trip because of Iowa’s “strong public policy favoring the protection of children’s legal rights”).

[5] While a slight majority of jurisdictions support enforceability in the context of a non-profit recreational activity, non-profits and volunteer youth sports raise different public policy concerns which we need not address in this opinion today.

[6] Kentucky Revised Statutes.

[7] The legislature has sought fit to slightly change this portion of the common law and has authorized parents to receive funds less than $10, 000, but those settlements must be approved by a court before the funds may be paid to a parent in custody of a child. KRS 387.280. Thus, a parent, based merely on custody, still maintains no right to negotiate a settlement on behalf of their child.

[8] See Parens Patriae, Black’s Law Dictionary (10th. ed 2014) (“The state regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves”); see also KRS 600.010(2)(a) (the Commonwealth should “direct its efforts to promoting protection of children”); Giuliani v. Gutter, 951 S.W.2d 318, 319 (Ky. 1997) (relevant public policy existed to support the enlargement of children’s legal rights under the common law derived from KRS 600.010(2)(a)’s directive to protect children).

[9] As previously noted, the question of whether public policy exists to require enforcement of parent-signed, pre-injury waivers in a non-commercial context is not before this Court today, and thus we make no determination on the issue.

[10] House of Boom retains the ability to urge change in the common law by petitioning the General Assembly to enact a statute that supports a parent’s ability to waive their child’s legal rights. See Alaska Stat. § 09.65.292 (2004) (“a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent[]); Colo. Rev. Stat. § 13-22-107(3) (2003) (“A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence[]”).

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Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U

Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U

Michael Marino, an infant under the age of 18, by his Mother and Natural Guardian, Elena Marino, and Elena Marino, Individually, Plaintiffs,

v.

Richard Morrison, Jr, Carmela Morrison and Richard Bedrosian, Defendants.

No. 2016-31876

Index No. 10-11831

CAL. No. 15-00738OT

Supreme Court, Suffolk County

September 8, 2016

Unpublished Opinion

MOTION DATE 9-15-15

ADJ. DATE 3-1-16

SURIS & ASSOCIATES, P.C. Attorney for Plaintiffs.

JOHN T. McCARRON, PC Attorney for Defendant C. Morrison.

PENINO & MOYNIHAN, LLP Attorney for Defendant Bedrosian.

PRESENT: Hon. PETER H. MAYER, Justice

PETER H. MAYER, J.S.C.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by defendant Carmela Morrison, dated August 19, 2015, and supporting papers; (2) Notice of Cross Motion by defendant Richard Bedrosian, dated August 19, 2015, and supporting papers; (3) Affirmation in Opposition by plaintiffs, dated December 1, 2015, and supporting papers; (4) Reply Affirmations by defendants, dated February 28, 2016 and January 4, 2016, and supporting papers; (and after hearing counsels’ oral arguments in support of and opposed to the motion); and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. 001) by defendant Carmela Morrison and the motion (seq, 002) by defendant Richard Bedrosian are consolidated for purposes of this determination; and it is

ORDERED that the motion by defendant Carmela Morrison for summary judgment dismissing the complaint against her is granted; and it is further

ORDERED that the motion by defendant Richard Bedrosian for summary judgment dismissing the complaint against him is granted.

This action was commenced by plaintiff to recover damages for injuries infant plaintiff Michael Marino allegedly sustained as a result of an accident involving an all-terrain vehicle (ATV) on July 28. 2009. The complaint alleges that Mr. Marino was a passenger on the rear seat of the ATV, that he was caused to be ejected from the ATV, and that the accident took place on property located behind the address known as 29 Buckingham Drive, Dix Hills, New York. Elena Marino individually asserts a derivative claim for loss of love, services, companionship, and household support. Defendant Richard Bedrosian asserts cross claims against defendant Richard Morrison, Jr., who has tailed to appear in this action.

Defendant Carmela Morrison now moves for summary judgment in her favor on the grounds that she is exempt from liability pursuant to General Obligations Law §9-103. that Mr. Marino assumed the risk inherent in the activity, and that plaintiffs lack knowledge as to the location of the alleged accident or the manner in which it occurred. In support of her motion, Ms. Morrison submits copies of the pleadings and transcripts of the deposition testimony of Michael Marino, Richard Bedrosian, and herself.

Defendant Richard Bedrosian also moves for summary judgment in his favor on the grounds that he is exempt from liability pursuant to General Obligations Law § 9-103, plaintiffs lack knowledge as to the location of the alleged accident or die maimer in which it occurred, and he had no knowledge that Mr. Marino was present on his property, and Mr. Marino assumed the risk inherent in the activity. In support of his motion, he submits copies of the pleadings and transcripts of the deposition testimony of himself and Michael Marino.

At his deposition, infant plaintiff Michael Marino testified that, on the date in question, he was 15 years old and was spending time at the house of his school friend, Richie Morrison. Mr. Marino indicated that Mr. Morrison’s father purchased an ATV for Mr. Morrison “a few years” prior, which was parked on the premises next to a shed. Mr. Marino explained that he, Mr. Morrison, and Mr. Morrison’s cousin were waiting for a few friends to arrive at Morrison’s house. Mr. Marino testified that at some point, after it had gotten dark outside and when Mr. Morrison’s parents were not home, Mr. Morrison and his cousin began drinking liquor they had stolen from Mr. Morrison’s parents’ liquor cabinet, Mr. Marino explained that the young men had been playing video games in Mr. Morrison’s basement for a number of hours, but eventually went into the backyard, at which time Mr. Morrison and Mr. Morrison’s cousin began driving the ATV in question around the backyard of the premises. Mr. Marino, upon being offered a ride on the ATV, stated that he climbed aboard and sat behind Mr. Morrison and that neither one of them wore a helmet. Mr. Marino testified that after he sat down on the ATV, Mr. Morrison began driving it on the premises and the next thing he remembers is waking up in a basement with people “picking branches out of [his] head.” He stated that although they started out riding the ATV in Mr. Morrison’s backyard, due to his losing consciousness he is unable to identify exactly where the accident took place. Mr. Marino testified that he later came to learn from “mutual friends” that the accident occurred due to the ATV’s brakes failing, the ATV hitting something, and he and Mr. Morrison being thrown off the ATV. Mr. Marino further testified that he was later informed by his friend, Peter Frisina, that he, too, was injured in a similar way on that same ATV.

Regarding his experience with ATVs. Mr. Marino testified that his father owned one and he had both driven it and been a passenger on it “since [he] was young, ” Mr. Marino stated that neither Carmela Morrison nor Richard Bedrosian ever gave him permission to ride on Mr. Morrison’s ATV, and that neither parent was aware of any alcohol consumption by the young men.

At her deposition, Carmela Morrison testified that her partner, Richard Bedrosian, owns the subject premises. She further testified that she was not home at the time of the alleged ATV accident, but was told by various parties that, contrary to plaintiffs’ allegations, Mr. Marino had been the driver of the ATV and that her son was the rear passenger. Ms. Morrison indicated that she had taken her son and Mr. Marino to the beach earlier in the day with Mr. Marino’s mother’s permission. She stated that at approximately 6:00 p.m., after they all had returned to the subject premises, she left the house in order to attend a networking event. She explained that she asked Mr, Marino if his mother was coming to pick him up and he said “yes.” She informed him that he was welcome to stay to eat some pizza that she had recently ordered. She testified that she then left the young men at the premises with Mr. Morrison’s 20-year-old sister, Kristina, who was preparing to go out and was not present at the time of the accident. Carmela Morrison indicated that at approximately 8:00 p.m. she received a call saying that there had been an accident at the premises and she went home immediately. When asked whether her son obtained permission from her to use the ATV on the date in question, she replied “[a]bsolutely not.” Regarding prior accidents involving the ATV, Ms. Morrison testified that a few months prior to the date in question, Mr. Morrison’s friend, Peter, was driving it, fell off of it, and sustained scratch to his face. She further testified that after Peter’s fall, she “took the key and gave it to Bedrosian and said T don’t want this ATV used at alt.'”

At his deposition, Richard Bedrosian testified that he is the owner of the subject premises, but does not know exactly where the accident in question occurred, although he was told by his girlfriend, Carmela Morrison, that it happened “off property, ” on state land behind his backyard. He stated that his property is approximately 1.9 acres in size, completely fenced, with the backyard consuming % of that land. Of that backyard, he explained, Vi of it is ungroomed woods. Regarding the ATV in question, Mr. Bedrosian testified that it was a Christmas gift from Mr. Morrison’s biological father, defendant Richard Morrison, Jr., to Mr. Morrison, which he received approximately seven months before the accident. Mr. Bedrosian testified that he strongly disapproved of the ATV being on his property, but was told by Mr. Morrison’s father that he had no place to store it. Mr. Bedrosian indicated that Mr. Morrison would occasionally drive it around the backyard in circles or into the wooded area, but that Mr. Morrison’s father promised Mr. Bedrosian that he would take Mr. Morrison to off-premises locations to ride it and, based on that proviso, Mr. Bedrosian allowed the ATV to be stored on his property. Mr. Bedrosian testified that Mr. Morrison was forbidden from operating it if he or Carmela Morrison were not home.

Regarding the date in question, Mr. Bedrosian testified that he was told by Carmela Morrison, Mr. Morrison, and Tony Yacende that Mr. Marino was the driver of the ATV at the time and that Mr. Morrison was the passenger. Also, Mr. Bedrosian explained that no one was permitted to operate the ATV on the date in question because he had taken its only key and put it in a desk in his home office- a location that was “off limits to everybody.”

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 19 N.Y.S.3d 488 [2015]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Nomura, supra; see also Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (Daliendo v Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 [2d Dept 1989]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]).

It is axiomatic that for a plaintiff to recover against a defendant in a negligence action, plaintiff must prove defendant owed plaintiff a duty and that the breach of that duty resulted in the injuries sustained by plaintiff (see Lugo v Brentwood Union Free School Dist, 212 A.D.2d 582, 622 N.Y.S.2d 553 [2d Dept 1995]; Kimbar v.Estis, 1 N.Y.2d 399, 153 N.Y.S.2d 197 [1956]).

“The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of die sport generally and flow from such participation” (Shivers v Elwood Union Free Sch. Dist, 109 A.D.3d 977, 978 [2d Dept 2013] [internal quotation omitted]; see Trupia v Lake George Cent. School Dist, 14 N.Y.3d 392, 901 N.Y.S.2d 127 [2010]; Morgan v State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421 [1997]). “A plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law” (id at 978; see Leslie v. Splish Splash at Adventureland, 1 A.D.3d 320, 766 N.Y.S.2d 599 [2d Dept 2003]; Morgan v State of New York, supra). “It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Cruz v Longwood Cent Sch. Dist., 110 A.D.3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013] [internal quotation omitted]).

“There is … a duty by a parent to protect third parties from harm resulting from [his or her] infant child’s improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware of and capable of controlling its use” (Nolechek vGesuale, 46 N.Y.2d 332, 336, 413 N.Y.S.2d 340 [1978]), “Parents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments” (id. at 339). “In order for a third-party claim of this kind against a parent or guardian . . . negligence must be alleged and pleaded with some reasonable specificity, beyond mere generalities” (LaTorre v Genesee Mgmt, 90 N.Y.2d 576, 584, 665 N.Y.S.2d 1 [1997]).

Defendants Carmela Morrison and Richard Bedrosian, both relying on nearly identical arguments in support of their motions, have established a prima facie case of entitlement to summary judgment by offering sufficient proof that Mr. Marino voluntarily assumed die risks inherent in riding an ATV (see Shivers v Elwood Union Free Sch. Dist., supra; see generally Alvarez v Prospect Hosp., supra). Moving defendants proved that Mr. Marino voluntarily boarded the ATV, either as a driver or a passenger, having possessed significant prior experience with such machines. Further, there is nothing in the record indicating that Mr. Marino did not have full awareness of Mr. Morrison’s consumption of alcohol, if true, the weather and lighting conditions, and the landscaping of the backyard prior to riding on the ATV. Even if the Court were to assume, for the purposes of this decision, that Mr. Morrison’s consumption of alcohol, or some other factor, exceeded the level of risk Mr. Marino can be said to have assumed, plaintiffs have not proven the manner in which Mr. Marino allegedly sustained his injuries or even that Mr. Marino’s injuries were sustained on Mr. Bedrosian’s property. Accordingly, moving defendants, having established their entitlement to summary judgment on the ground of Mr. Marino’s primary assumption of the risk, the Court need not reach defendants’ other arguments.

Defendant having established a prima facie case entitlement to summary judgment, the burden shifted to plaintiff to raise an issue of fact necessitating a trial (see Alvarez v Prospect Hosp., supra). Plaintiffs argue that: (1) General Obligations Law § 9-103 does not apply to the facts of this case; (2) that enhanced risks were present at the time of Mr. Marino’s alleged injury, which he cannot be expected to assume; and (3) defendants owed a duty of care to Mr. Marino and failed to supervise him properly. In opposition, plaintiffs submit a copy of the Bill of Particulars and Michael Marino’s own affidavit.

Generally, “a plaintiff who suffers from amnesia as the result of the defendant’s conduct is not held to as high a degree of proof in establishing [his or her] right to recover for [his or her] injuries as a plaintiff who can describe the events in question” (Menekou v Crean, 222 A.D.2d 418, 419, 634 N.Y.S.2d 532 [2d Dept 1995]; Sawyer v Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 502 N.Y.S.2d 696 [1986]; Santiago v Quattrociocchi, 91 A.D.3d 747, 937 N.Y.S.2d 119 [2d Dept 2012]). However, in order to invoke that lower burden of proof, plaintiff must not only make a prima facie case, but must also submit an expert’s affidavit demonstrating the amnesia through clear and convincing evidence (Menekou v Crean, supra). Plaintiffs have failed to meet that burden here. Therefore, plaintiffs’ attempts to raise triable issues will be evaluated in the usual manner (see Alvarez v Prospect Hosp., supra).

As Richie Morrison, Tony Yacende, and Peter Frisina have not been deposed, the Court must decide this matter solely on the three deposition transcripts and single affidavit submitted by the parties herein. The undisputed facts can be summarized as follows: (I) Mr. Bedrosian owned the subject premises, but was unaware of Mr. Marino’s presence there at the time of the incident; (2) Mr. Marino, Mr. Morrison, and Mr. Yacende were unsupervised for a period of time on the evening in question; (3) Mr. Marino voluntarily rode on an ATV while not wearing protective equipment; (4) Mr. Marino was knocked unconscious at some point in the evening and awoke in a basement surrounded by friends and his father; (5) Mr. Marino was transported to the hospital via ambulance; (6) Peter Frisina sustained an injury while riding the subject ATV on an occasion prior to plaintiffs alleged injuries; and (7) Ms. Morrison and Mr. Bedrosian took the keys for the ATV away from Mr. Morrison and forbade Mr, Morrison using the ATV after Peter Frisina’s injury.

Here, plaintiffs rely almost entirely on hearsay not subject to any exception, in an attempt to raise triable issues. Any reference by plaintiffs’ counsel to “defective” brakes is unfounded and speculative (see Daliendo v Johnson, supra). Further, plaintiffs have failed to provide any proof as to the mechanism of Mr. Marino’s alleged injury (see Passaro v Bouquio, 79 A.D.3d 1114, 914 N.Y.S.2d 905 [2d Dept 2010]}. Based upon the admissible, non-hearsay evidence submitted, it is just as likely that Mr. Marino jumped from the moving ATV; took an uneventful ride on the ATV, then attempted to climb a tree and fell to the ground; or was hit in the head by some unknown object, causing him to become unconscious, as it is that the ATV crashed and he was thrown from it. Furthermore, the “dangerous instrument” exception is inapplicable here, as plaintiffs have not submitted evidence that movants gave Mr. Morrison permission to use the ATV or supplied him with access to it (see Nolechek v Gesuale, supra). Instead, uncontroverted evidence has been submitted that movants took affirmative steps to deny use of the ATV to Richie Morrison.

Accordingly, the motions by defendants Carmela Morrison and Richard Bedrosian for summary judgment in their favor dismissing the complaint against them is granted.


Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495

Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495

Thomas A Lynam, III and Antoinette M. Lynam, as Parents and Natural Guardians of Thomas A. Lynam, IV, a minor,

v.

Blue Diamond LLC and Parkway Gravel Inc. and Houghton’s Amusement Park, LLC

C.A. No. N14C-11-121 RRC

Superior Court of Delaware, New Castle

October 4, 2016

Submitted: July 6, 2016

On Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s Motion for Judgment on the Pleadings.

Tabatha L. Castro, Esquire The Castro Firm, Inc. Attorney for Plaintiffs

Leonard G. Villari, Esquire Villari, Lentz & Lynam, LLC Attorney Pro Hac Vice for Plaintiffs

Marc S. Casarino, Esquire Dana Spring Monzo, Esquire Nicholas Wynn, Esquire White and Williams, LLP Attorneys for Defendants Blue Diamond LLC and Parkway Gravel, Inc.

Dear Counsel:

I. INTRODUCTION

Pending before this Court is Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s (“Defendants”)[1] Motion for Judgment on the Pleadings. In their complaint, Plaintiffs allege that minor Thomas Lynam, IV (“Tommy”) was riding his motocross bicycle on Defendants’ motocross track. After riding off a jump, Tommy landed, lost control of his motocross bicycle, and collided with a metal shipping container near the track. Tommy apparently sustained serious injuries. Plaintiffs’ complaint raises one count of “negligence” as a theory for liability.[2]Although not listed as a separate count in their complaint, Plaintiffs allude in their general “negligence” claim to a theory of reckless conduct by Defendants in connection with the operation of the motocross track.

In their motion, Defendants assert that their alleged behavior was, as a matter of fact and law, neither negligent nor reckless. Alternatively, Defendants raise an affirmative defense that they are released from any liability for negligent or reckless conduct due to a release agreement (the “Release”) signed by the Plaintiffs. Additionally, Defendants raise the doctrine of assumption of the risk as a separate affirmative defense as a bar to recovery.

Plaintiffs agree that they released Defendants from liability for Defendants’ own “negligence.” However, Plaintiffs contend that Defendants’ conduct amounted to recklessness, and that Plaintiffs never released Defendants from liability for their allegedly reckless conduct. In response to Defendants’ claim that Plaintiffs assumed the risk of injury, Plaintiffs contend that the risk of a collision with a metal shipping container was not contemplated at either the signing of the Release or when Tommy began using the facilities.

This Court concludes that the Release was not specifically tailored so as to release Defendants from liability for their allegedly reckless conduct. The Court also finds that the factual record is insufficiently developed to make a legal determination of whether Defendants’ conduct as a matter of law amounted to recklessness. Finally, the Court concludes that it is premature at this juncture to consider Defendant’s affirmative defense. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings.

II.FACTUAL AND PROCEDURAL HISTORY

On January 6, 2013, Tommy, then thirteen years old, was riding a motocross bicycle at Blue Diamond Motocross near New Castle. Plaintiffs allege that the track was advertised as being composed of “safe jumps.”[3] While riding, Tommy rode off a jump, made a hard landing, and was unable to stop in time before colliding with a large metal shipping container.

Prior to granting Tommy admission to the Blue Diamond facilities to ride his motocross bicycle, Blue Diamond required Tommy’s father to sign a release agreement. The Release, entitled “Parental Consent, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement, ” stated that Plaintiffs understood the “risks and dangers of serious bodily injury” posed by motocross and relieved Defendants from liability for their own negligence.[4] The Release also released Defendants from liability for injuries suffered by Plaintiffs through their own negligence.[5]

In their complaint, Plaintiffs allege that Defendants negligently allowed the container to remain on the premises at an unsafe distance from the motocross track.[6] While Plaintiffs do not specifically allege recklessness as a separate claim for recovery, but rather include it in a single count of “Negligence, ” Plaintiffs’ complaint references reckless conduct as another potential theory of recovery.[7]Plaintiffs, however, now agree that their claims of negligence are barred by the Release.[8] But Plaintiffs assert that the Release did not specifically address or contemplate potential claims against Defendants for “reckless” behavior.[9]

III. ANALYSIS

A. Standard of Review

Under Superior Court Civil Rule 12(c), a party may move for judgment on the pleadings after the pleadings are closed.[10] The standard of review in the context of a motion for judgment on the pleadings requires a court to “accept all the complaint’s well-pleaded facts as true and construe all reasonable inferences in favor of the non-moving party.”[11] “The motion will be granted when no material issues of fact exist, and the moving party is entitled to judgment as a matter of law.”[12] “The standard for a motion for judgment on the pleadings is almost identical to the standard for a motion to dismiss.”[13]

B. The Parties Agree that the Release Bars Plaintiffs’ Recovery Against Defendants for Any Negligence

Defendants contend that the executed Release bars recovery for negligence. At oral argument on this motion, Plaintiffs agreed (Plaintiffs’ filings were not explicit on this point) that the Release bars recovery for injuries resulting from Defendants’ allegedly negligent conduct.[14] Although Plaintiffs are residents of Pennsylvania, the parties agree that Delaware law applies to the present motion, as Defendants are Delaware businesses and the incident giving rise to the case at bar occurred in Delaware.

Under Delaware law, parties may enter into an agreement that relieves a business owner of liability for injuries to business invitees that result from the owner’s negligent conduct.[15] However, the release must be unambiguous, not unconscionable, and not against public policy. [16] Further, the release must be “‘crystal clear and unequivocal’ to insulate a party from liability for possible future negligence.”[17]

In Ketler v. PFPA, LLC, the Delaware Supreme Court recently determined the validity of a release waiving liability for negligence.[18] The release in Ketler provided:

‘I understand and voluntarily accept this risk and agree that [the defendant] . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendant] or anyone on [the defendant’s] behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge [the defendant] from any and all claims, demands, injuries, damages, actions, or causes of action.'[19]

The Delaware Supreme Court held that the release was sufficiently clear and unequivocal, and that it expressly released the defendant from any and all causes of actions relating to the defendant’s own negligence.[20] Defendants rely heavily on this case, asserting that it applies to claims of reckless conduct.[21]

The Release that Plaintiffs executed in this case is also sufficiently “clear and unequivocal.” The Release provides:

3. I consent to the Minor’s participation in the Event(s) and/or entry into restricted areas and HEREBY ACCEPT AND ASSUME ALL SUCH RISKS, KNOWN AND UNKNOWN, AND ASSUME ALL RESPONSIBILITY FOR THE LOSSES, COSTS, AND/OR DAMAGES FOLLOWING SUCH INJURY, DISABILITY, PARALYSIS OR DEATH, EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE “RELEASEES” NAMED BELOW.

4. I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s) . . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . . . FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED . . . BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.[22]

Similar to the language at issue in Ketler, the Release expressly states that the signor assumes responsibility for injuries caused by Defendants’ own negligent conduct. The release also expressly states that the Defendants are released from any and all causes of action that may arise from Defendants’ negligent conduct. Accordingly, this Court agrees with the parties that the Release validly exculpates Defendants from liability for their own negligence.

Defendants also rely on Lafate v. New Castle County[23] and Devecchio v. Delaware Enduro Riders, Inc.[24] to support their position that the Release waives claims of reckless conduct. Both Lafate and Devecchio concern agreements that released the tortfeasors from liability for their own negligent conduct. Both cases also discussed whether the language of the releases was sufficiently tailored to release the tortfeasor’s negligent conduct. In Lafate, this Court refused to grant the defendant’s motion for summary judgment on grounds that the release did not clearly and unambiguously release the tortfeasor from claims that it was negligent.[25] In Devecchio, this Court granted the defendant’s motion for summary judgment because the plaintiff signed a valid covenant not to sue for injury resulting from the plaintiffs own negligence.[26]

Defendants’ reliance on these cases in light of Plaintiffs’ potential claim of reckless conduct is inapposite. Because the parties have agreed that Defendants are insulated from claims of negligence, the question of whether the release clearly and unambiguously insulates the defendants from liability for their own negligent conduct is moot. Neither the holding in Lafate nor in Devecchio relate to allegations of reckless conduct. Accordingly, because Plaintiffs now assert that Defendant’s conduct was reckless, Lafate and Devecchio are distinguishable from the case at bar.

Finally, the Court considers whether, for purposes of this motion, recklessness is subsumed in negligence, and is therefore barred as a form of negligence. Prosser and Keeton on Torts is particularly informative, providing that “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”[27] Adopting Prosser and Keeton’s interpretation, this Court finds that although the Release does insulate Defendants from liability for negligent conduct, it does not bar claims of “more extreme forms of negligence, ” such as “reckless” conduct.[28]

C. A Motion for Judgment on the Pleadings is Inappropriate at this Juncture in Light of any Undeveloped Claims of Reckless Conduct

Although Tommy’s father’s execution of the Release precludes recovery from Defendants on a theory of “negligence, ” Plaintiffs assert that the Defendants’ conduct was “reckless.” Plaintiffs did not explicitly allege in a separate count of the complaint that Defendant’s conduct was reckless, but Plaintiffs did make it apparent in the complaint that it was an intended theory of liability.[29] In their briefing and at oral argument, Plaintiffs suggested that Defendants, among other things, had been aware of previous collisions with the shipping container, and that their ignorance of these prior incidents amounts to reckless behavior.[30]Accordingly, the Court must determine whether the Release bars Plaintiffs from asserting claims resulting from injuries caused by Defendants’ reckless conduct.

Courts in Delaware have a strong preference for resolving cases on their merits, or at least allowing discovery to proceed such that additional evidence in support of the parties’ contentions can be developed.[31] While this preference is not outcome-determinative, the preference for resolving cases on the merits is a strong factor in determining whether to grant or deny a dispositive motion.

Plaintiffs, at oral argument and in their response to the motion, argue that they are entitled to recovery based on Defendants’ allegedly reckless conduct. The parties agree that this theory is separate from the one count of “negligence” listed in the complaint.[32] The operative language of the Release does not explicitly enumerate or contemplate recklessness as a theory of recovery barred by the Release. Under Delaware law, as provided in Ketler, a release must be “clear and unambiguous” in order to effectively release the business owner from liability.[33]

This Court finds that the language of the release is not “clear and unambiguous” with respect to Defendants’ liability for their own allegedly reckless conduct. In Ketler, the release at issue specifically used the word “negligence, ” and stated that Defendants “will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendants].” The Delaware Supreme Court held that this language satisfied the “clear and unequivocal” standard and upheld the language of the agreement.

Turning to the Release that Plaintiffs executed, this Court finds that the Release is silent as to claims of recklessness. The Release does not mention “reckless” conduct, and instead only expressly refers to injury caused by Defendants’ “negligence.” In the absence of such language, the Release does not clearly and unambiguously exculpate Defendants from liability for their own reckless conduct. Accordingly, the Release does not operate to bar Plaintiffs’ claim of recklessness.[34]

This Court holds that the Release does not bar claims of reckless conduct. This Court expresses no opinion at this juncture as to whether Plaintiffs ultimately can establish claims against for recklessness. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings, and will grant Plaintiffs leave to conduct further discovery with the option of potentially amending the complaint in support of their contention that Defendants’ conduct was “reckless.”[35]

D. The Court does Not Reach Defendant’s Argument under the Doctrine of Assumption of the Risk

Finally, Defendants’ contend that Plaintiffs assumed the risk of injury from Defendants’ alleged reckless conduct. However, the record has not been sufficiently developed to determine whether Defendants’ conduct was reckless or whether Plaintiffs assumed the risk of injury from Defendants’ allegedly reckless conduct.[36] Accordingly, the Court does not reach this contention at this stage of the litigation.

IV. CONCLUSION

Defendant’s Motion for Judgment on the Pleadings is DENIED. The Court has enclosed an Order establishing a Scheduling Conference in this case.

Very truly yours,

Richard R. Cooch Resident Judge

Notes:

[1] Defendant Houghton’s Amusement Park, LLC did not make an appearance in this case and had a default judgment taken against it on June 21, 2016.

[2]Compl. ¶¶ 79-87.

[3]Compl. ¶ 48.

[4]Defs.’ Mot. for J. on the Pleadings, Ex. A.

[5]Defs.’ Mot. for J. on the Pleadings, Ex. A. Tommy also signed an agreement, titled “Minor’s Assumption of the Risk Acknowledgment, ” that Defendants reference in their motion as another reason they are not liable for Plaintiffs’ injuries. However, it appears from the motion and subsequent filings that the release signed by Tommy is only mentioned in passing, and is not relied upon by Defendants. The release signed by Tommy’s father is the determinative release in the case at bar.

[6]Compl. ¶¶ 79-87.

[7]Compl. ¶¶ 49, 51, 77, 87. Specifically, the Complaint alleges that “Defendants’ failure to exercise reasonable care as alleged above comprised outrageous conduct under the circumstances, manifesting a wanton and reckless disregard of the rights of the Plaintiffs.” Compl. ¶ 87. The Complaint also alleges that Tommy’s injuries were caused by the “reckless indifference” of Defendants. Compl. ¶¶ 51, 77. Moreover, the Complaint alleges that the track was “reckless[ly] design[ed].” Compl. ¶ 49.

[8]At oral argument, Plaintiffs’ counsel answered in the affirmative when the Court asked “Am I understanding Plaintiffs’ position correctly when I read the papers to say that Plaintiffs are not alleging ordinary negligence, but rather recklessness?” Lynam et al. v. Blue Diamond LLC Motocross et al, C.A. No. N14C-11-121 RRC, at 6 (Del. Super. July 6, 2016) (TRANSCRIPT) [hereinafter Oral Arg. Tr.].

[9] Defs.’ Mot. for J. on the Pleadings, Ex. A.

[10] A judgment on the pleadings is based only upon a review of Plaintiffs’ complaint and Defendants’ answer. However, under Rule 12(c), “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment.” Super. Ct. Civ. R. 12(c). In the case at bar, Defendants introduced the two executed releases as exhibits to their motion. However, the releases were not a part of the pleadings. Nevertheless, the parties agree that this motion should be treated as a motion for judgment on the pleadings.

[11] Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Jan. 17, 2014) (quoting Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del. Super. Aug. 8, 2012)).

[12] Id. (quoting Velocity Exp., Inc. v. Office Depot, Inc., 2009 WL 406807, at *3 (Del. Super. Feb. 4, 2009).

[13] Id. (internal quotation marks omitted).

[14] See Oral Arg. Tr. at 6.

[15] Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016) (upholding “hold harmless” agreements and releases that relieve a proprietor from liability for its own negligent activities).

[16] Id. at 747-48.

[17] Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012) (internal quotation marks omitted) (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).

[18] Ketler, 132 A.3d at 747.

[19] Id.

[20] Id.

[21] Oral Arg. Tr. at 14-16.

[22] Defs.’ Mot. for J. on the Pleadings, Ex. A (emphasis added).

[23] 1999 WL 1241074 (Del. Super. Oct. 22, 1999).

[24] 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).

[25] The plaintiff in Lafate was injured by a metal bar used to divide a basketball court. This Court found that while the agreement did “speak[] of ‘any and all injuries which may be suffered by [players] during [their] participation, ‘” the absence of the word “negligence” insufficiently insulated the defendants from liability for their own negligent conduct. Lafate, 1999 WL 1241074, at *4.

[26] In Devecchio, the defendant owned a motorcycle race track that required riders to sign agreements releasing the defendant from liability for injuries resulting from both the riders and the defendant’s negligence. The release pertaining to the defendant’s negligence expressly used the word “negligence.” This Court found that the release using the word “negligence” was sufficiently clear and unambiguous, and therefore insulated the defendant from liability for its own negligent conduct. Devecchio v. Enduro Riders, Inc., 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).

[27] W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)). Delaware courts often rely on Prosser and Keeton on Torts in reaching their conclusions. See, e.g., Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991); Lafate v. New Castle County, 1999 WL 1241074 (Del. Super. Oct. 22, 1999); Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).

[28] Additionally, the Delaware Civil Pattern Jury Instructions for negligence and recklessness are substantially different. The Delaware Civil Pattern Jury Instruction for negligence provides:

This case involves claims of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. That standard is your guide. If a person’s conduct in a given circumstance doesn’t measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. On the other hand, if the person’s conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn’t negligent.

Del. Super. P.J.I. Civ. § 5.1 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. On the other hand, the Delaware Civil Pattern Jury Instruction for reckless conduct states:

Reckless conduct reflects a knowing disregard of a substantial and unjustifiable risk. It amounts to an “I don’t care” attitude. Recklessness occurs when a person, with no intent to cause harm, performs an act so unreasonable and so dangerous that he or she knows, or should know, that harm will probably result.

Del. Super. P.J.I. Civ. § 5.9 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. It is apparent from a comparison of the two different jury instructions that negligence conduct requires a departure from the ordinary standard of care exhibited by the reasonably prudent person, an objective standard. However, in contrast, it appears from the pattern jury instructions that reckless conduct requires a subjective “I don’t care” attitude that evidences an even greater departure from the ordinary standard of care, amounting to an unreasonable conscious disregard of a known risk.

[29] Compl. ¶¶ 49, 51, 77, 87. For example, Plaintiffs allege that “The reckless design of the track, which was intentionally constructed next to the pre-existing intermodal container, requires riders to land from a jump and immediately decelerate in order to execute a 90° right turn.” Compl. ¶ 49. Moreover, Plaintiffs allege that Tommy’s injuries were “a direct and proximate result of the negligence, carelessness and reckless indifference of Defendants.” Compl. ¶ 77.

[30] Pl.’s Suppl. Resp. in Opp’n to the Mot. for J. on the Pleadings, at 2.

[31] Keener v. Isken, 58 A.3d 407, 409 (Del. 2013); see also Wallace v. Wood, 2007 WL 3331530 (Del. Ch. Oct. 31, 2007); DeSantis v. Chilkotowsky, 2004 WL 2914314, at *2 (Del. Super. Nov. 18, 2004), Sup. Ct. Civ. R. 56.

[32] Plaintiffs did not plead any explicit claim of recklessness. See, e.g., J.L. v. Barnes, 33 A.3d 902, 916 n.77 (De. 2011) (treating recklessness and gross negligence as interchangeable and noting, “In order for a plaintiff to plead gross negligence with the requisite particularity, the plaintiff must articulate ‘facts that suggest a wide disparity between the process [] used . . . and that which would have been rational.'” J.L. states that a complaint pleading ten pages of facts to support a claim of gross negligence or recklessness was sufficient to meet the pleading standard). Defendants argue that Plaintiffs have not properly pleaded reckless conduct under Superior Court Civil Rule 9(b). However, the Court need not reach that issue since it will give Plaintiffs the opportunity to amend their complaint.

[33] Ketler, 132 A.3d at 747.

[34] Because the Court finds that Defendants’ release does not explicitly bar claims of “reckless” conduct, this Court does not reach the question of whether such a release is potentially permissible under Delaware law. However, this Court notes that other jurisdictions have differing perspectives on whether exculpatory agreements barring claims for recklessness, gross negligence, willful acts, or strict liability are enforceable. See Randy J. Sutton, Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). For example, in Barker v. Colo. Region-Sports Car Club of Am., the Colorado Court of Appeals held that exculpatory agreements can release a party only for simple negligence, and not from willful and wanton negligence. 532 P.2d 372, 377 (Colo.App. 1974). Similarly, in Wheelock v. Sport Kites, Inc., the United States District Court for the District of Hawaii held that a release was invalid with respect to claims of gross negligence and strict liability. 839 F.Supp. 730, 736 (D. Haw. 1993). The above annotation suggests that a common reason to not enforce such an agreement is because they are void against the state’s public policy.

Alternatively, other jurisdictions have upheld agreements that exculpate business owners for reckless conduct or strict liability. For example, in Murphy v. N. Am. River Runners, Inc., the West Virginia Supreme Court discussed the matter, stating:

Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is contrary to public policy. When such an express agreement is freely and fairly made, between two parties who are in equal bargaining position, and there is no public interest with which the agreement interferes, it will generally be upheld.

412 S.E.2d 504, 508-09 (W.Va. 1991).

[35]Delaware Courts have previously allowed such an amendment to be made. As this Court held in Guy v. Phillips, a party may amend a complaint following additional discovery when the amended count arises out of the same factual basis for the original complaint. 1997 WL 524124 (Del. Super. July 2, 1997).

[36] In support of this defense, the Court notes that Defendants rely solely on Deuley v. DynCorp Int’l, Inc., 2010 WL 704895 (Del. Super. Feb. 26, 2010). However, Deuley is distinguishable from the case at bar. In Deuley, surviving relatives of decedents killed by an improvised explosive device (“IED”) in Afghanistan filed a wrongful death action. As part of the employment agreement, the decedents signed an agreement that provided employees expressly assumed the risk of injury or death. In reaching its conclusion that the decedents assumed the risk of death, the Court found that “when [the decedents] signed the releases, even a poorly informed American had to have appreciated that working in Afghanistan involved the general risk of insurgent or terrorist attacking by an IED.” Deuley, 2010 WL 704895, at *4. “The complaint offers no reason to find that any plaintiff here was probably unaware of the general risk of being injured or killed by a bomb.” Id. In the case at bar, drawing inferences in the light most favorable to the Plaintiffs, it is unlikely that Plaintiffs were aware of the risk posed by the shipping container, since they allege that they were unable to inspect the track prior to Tommy using it. Accordingly, Defendants’ reliance on Deuley is inapposite since it could be determined that a collision with the metal shipping container was not contemplated by the Plaintiffs when they signed the Release.


New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly.

The arbitration agreement in this case did not state how long the agreement was valid for, so the court held it was only valid for the day it was signed.

Citation: Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

State: New Jersey: Superior Court of New Jersey, Appellate Division

Plaintiff: Lorianne Weed and Scott Trefero as parents and natural guardians of A.M., a minor,

Defendant: Sky NJ, LLC a/k/a and/or d/b/a Skyzone Moorestown and/or a/k/a and/or d/b/a Skyzone and David R. Agger

Plaintiff Claims: Contract failed to compel arbitration

Defendant Defenses: Arbitration

Holding: For the Plaintiff

Year: 2018

Summary

When a parent cannot sign a release for a minor, because the states don’t enforce them, one option may be a binding arbitration agreement. Arbitration usually does not allow massive damages, is cheaper and quicker than going to trial.

However, your arbitration agreement, like a release, must be written in a way to make sure it is effective. This one was not, and the plaintiff can proceed to trial.

Facts

Plaintiff visited the trampoline facility in July 2016. Entrance to the park is conditioned on all participants signing a “Conditional Access Agreement, Pre-Injury Waiver of Liability, and Agreement to Indemnity, Waiver of Trial, and Agreement to Arbitrate” (the Agreement). Weed executed the agreement on behalf of her son in July 2016.

Plaintiff returned to the facility with a friend in November 2016, and was injured while using the trampolines during a “Glow” event, which plaintiff submits used different and less lighting than was present at his earlier visit. Plaintiff entered the facility in November with an agreement signed by his friend’s mother on behalf of both her daughter and A.M.[2] In an affidavit submitted by Weed in opposition to the motion, she stated that she was unaware that her son was going to the facility at the time of the November visit.

After Weed filed suit on behalf of her son, defendants moved to compel arbitration pursuant to the agreement. Defendants argued that the agreements contained “straightforward, clear, and unequivocal” language that a participant was waiving their right to present claims before a jury in exchange for conditional access to the facility. They asserted that the first agreement signed by Weed remained in effect at the time of plaintiff’s subsequent visit in November as there was no indication that it was only valid for the one day of entry in July. Finally, defendants contended that any dispute as to a term of the agreement should be resolved in arbitration.

Plaintiff opposed the motion, asserting that nothing in the first agreement alerted Weed that it would remain in effect for either a certain or an indefinite period of time. To the contrary, defendants’ policy of requiring a new agreement to be signed each time a participant entered the park belied its argument that a prior agreement remained valid for a period of time.

On May 19, 2017, Judge Joseph L. Marczyk conducted oral argument and denied the motion in an oral decision issued the same day. The judge determined that the first agreement did not apply to the November visit because it did not contain any language that it would remain valid and applicable to all future visits. Therefore, there was no notice to the signor of the agreement that it would be in effect beyond that specific day of entry, and no “meeting of the minds” that the waiver and agreement to arbitrate pertained to all claims for any future injury.

As for the second agreement, the judge found that there was no precedent to support defendants’ contention that an unrelated person could bind plaintiff to an arbitration clause. This appeal followed.

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

In a state where there are no defenses except assumption of the risk for claims by minor’s arbitration can be a good way to speed up the process and limit damages. Each state has laws that encourage arbitration and, in most cases, create limits on what an arbitration panel (the people hearing the case) can award in damages. In man states, arbitration judges cannot award punitive damages.

You need to check your state laws on what if any benefits arbitration provides.

However, if you can use a release, the release is the best way to go because it cuts off all damages. Many times, in arbitration damages are awarded, they are just less.

To determine which states do not 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.

The best way of dealing with minor claims is the defense of assumption of the risk. However, this takes more time on the front end in making sure the minor participants understand the risk before embarking on the activity.

There were two issues before the appellate court: Whether the first agreement signed by the mother of the injured plaintiff extended beyond the day it was signed. The second issue was whether a second agreement signed by a friend, not a parent, legal guardian or someone acting under a power of attorney had any legal validity.

The first agreement was silent as to how long it was valid. There was no termination date, (which is a good thing) and nothing to indicate the agreement was good for a day or a lifetime. Because the contract was blank as to when the agreement was valid, the court ruled against the creator of the contract.

There is no evidence in the record before us to support defendants’ argument as the agreements are silent as to any period of validity. Defendants drafted these agreements and required a signature from all participants waiving certain claims and requiring submission to arbitration prior to permitting access to the facility. Any ambiguity in the contract must be construed against defendants.

When a contract is written any issues are held against the writer of the agreement. Here because the contract had no end date or did not say it was good forever, there was a gap in the agreement that was held against the defendant as the writer of the agreement.

So, the court ruled the agreement signed by the mother was only valid on the day it was signed and was not valid the second time when the minor came in and was injured.

The second argument made by the defendant was the friend who signed for the minor on the second visit signed an agreement that should be enforced and compel arbitration.

The court laughed that one out the door.

We further find that defendants’ argument regarding the November agreement lacks merit. The signor of that agreement was neither a parent, a legal guardian, nor the holder of a power of attorney needed to bind the minor plaintiff to the arbitration agreement. Defendants’ reliance on Hojnowski v. Vans Skate Park, is misplaced. While the Court found that a parent had the authority to waive their own child’s rights under an arbitration agreement in Hojnowski, there is no suggestion that such authority would extend to a non-legal guardian. Not only would such a holding bind the minor to an arbitration agreement, it would also serve to bind the minor’s parents, waiving their rights to bring a claim on behalf of their child. We decline to so hold.

So Now What?

New Jersey law is quite clear. A parent cannot sign away a minor’s right to sue, Hojnowski v. Vans Skate Park. Consequently, arbitration was probably the way to go. In this case, one little slip up made the arbitration agreement worthless.

The one flaw in using an arbitration agreement is you could use a release to stop the claims for a parent. So, you should write a release that stops the claims of the parents/legal guardians and compels arbitration of the minor’s claims. Those get tricky.

And as far as another adult signing for a minor who is not their child, that is always a problem. A parent can sign for a minor, to some extent, and a spouse can sign for another spouse in certain situations. An officer of a corporation or a manager of a limited liability company can sign for the corporation or company. The trustee can sign for a trust, and any partner can sign for a partnership. But only you can sign for you.

The issue that outdoor businesses see all day long is a volunteer youth leader take groups of kids to parks, amusement rides and climbing walls, etc. Neighbors take the neighborhood kids to the zoo, and friends grab their kids’ friends to take on vacation. Unless the adult has a power of attorney saying they have the right to enter agreements on behalf of the minor child, their signature only has value if they are a celebrity or sports personality.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

Weed v. Sky NJ, LLC., 2018 N.J. Super. Unpub. LEXIS 410, 2018 WL 1004206

Lorianne Weed and Scott Trefero as parents and natural guardians of A.M., a minor, Plaintiffs-Respondents, v. Sky NJ, LLC a/k/a and/or d/b/a Skyzone Moorestown and/or a/k/a and/or d/b/a Skyzone and David R. Agger, Defendants-Appellants.

No. A-4589-16T1

Superior Court of New Jersey, Appellate Division

February 22, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 18, 2018

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2790-16.

Marco P. DiFlorio argued the cause for appellants (Salmon, Ricchezza, Singer & Turchi LLP, attorneys; Joseph A. Ricchezza and Marco P. DiFlorio, on the briefs).

Iddo Harel argued the cause for respondents (Ross Feller Casey, LLP, attorneys; Joel J. Feller and Iddo Harel, on the brief).

Before Judges Currier and Geiger.

PER CURIAM

Defendants Sky NJ, LLC a/k/a/ Sky Zone Moorestown and David Agger (defendants) appeal from the May 19, 2017 order denying their motion to compel arbitration in this personal injury suit brought by plaintiffs after A.M.[1] suffered severe injuries while jumping on a trampoline at defendants’ facility. After a review of the presented arguments in light of the record before us and applicable principles of law, we affirm.

Plaintiff visited the trampoline facility in July 2016. Entrance to the park is conditioned on all participants signing a “Conditional Access Agreement, Pre-Injury Waiver of Liability, and Agreement to Indemnity, Waiver of Trial, and Agreement to Arbitrate” (the Agreement). Weed executed the agreement on behalf of her son in July 2016.

Plaintiff returned to the facility with a friend in November 2016, and was injured while using the trampolines during a “Glow” event, which plaintiff submits used different and less lighting than was present at his earlier visit. Plaintiff entered the facility in November with an agreement signed by his friend’s mother on behalf of both her daughter and A.M.[2] In an affidavit submitted by Weed in opposition to the motion, she stated that she was unaware that her son was going to the facility at the time of the November visit.

Both agreements required the submission of all claims to binding arbitration and contained the following pertinent language:

I understand that this Agreement waives certain rights that I have in exchange for permission to gain access to the [l]ocation. I agree and acknowledge that the rights I am waiving in exchange for permission to gain access to the [l]ocation include but may not be limited to the following:

a. the right to sue [defendants] in a court of law;

b. the right to a trial by judge or jury;

c. the right to claim money from [defendants] for accidents causing injury within the scope of the risk assumed by myself;

d. the right to claim money from [defendants] for accidents causing injury unless [defendants] committed acts of gross negligence or willful and wanton misconduct; and

e. the right to file a claim against [defendants] if I wait more than one year from . . . the date of this Agreement.

Waiver of Trial, and Agreement to Arbitrate

IF I AM INJURED AND WANT TO MAKE A CLAIM AND/OR IF THERE ARE ANY DISPUTES REGARDING THIS AGREEMENT, I HEREBY WAIVE ANY RIGHT I HAVE TO A TRIAL IN A COURT OF LAW BEFORE A JUDGE AND JURY. I AGREE THAT SUCH DISPUTE SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF THIS AGREEMENT AND WILL BE DETERMINED BY BINDING ARBITRATION BEFORE ONE ARBITRATOR TO BE ADMINISTERED BY JAMS[3] PURSUANT TO ITS COMPREHENSIVE ARBITRATIONRULES AND PROCEDURES.I further agree that the arbitration will take place solely in the state of New Jersey and that the substantive law of New Jersey shall apply. I acknowledge that if I want to make a claim against [defendants], I must file a demand before JAMS. … To the extent that any claim I have against [defendants] has not been released or waived by this Agreement, I acknowledge that I have agreed that my sole remedy is to arbitrat[e] such claim, and that such claim may only be brought against [defendants] in accordance with the above Waiver of Trial and Agreement to Arbitrate.

After Weed filed suit on behalf of her son, defendants moved to compel arbitration pursuant to the agreement. Defendants argued that the agreements contained “straightforward, clear, and unequivocal” language that a participant was waiving their right to present claims before a jury in exchange for conditional access to the facility. They asserted that the first agreement signed by Weed remained in effect at the time of plaintiff’s subsequent visit in November as there was no indication that it was only valid for the one day of entry in July. Finally, defendants contended that any dispute as to a term of the agreement should be resolved in arbitration.

Plaintiff opposed the motion, asserting that nothing in the first agreement alerted Weed that it would remain in effect for either a certain or an indefinite period of time. To the contrary, defendants’ policy of requiring a new agreement to be signed each time a participant entered the park belied its argument that a prior agreement remained valid for a period of time.

On May 19, 2017, Judge Joseph L. Marczyk conducted oral argument and denied the motion in an oral decision issued the same day. The judge determined that the first agreement did not apply to the November visit because it did not contain any language that it would remain valid and applicable to all future visits. Therefore, there was no notice to the signor of the agreement that it would be in effect beyond that specific day of entry, and no “meeting of the minds” that the waiver and agreement to arbitrate pertained to all claims for any future injury.

As for the second agreement, the judge found that there was no precedent to support defendants’ contention that an unrelated person could bind plaintiff to an arbitration clause. This appeal followed.

“[O]rders compelling or denying arbitration are deemed final and appealable as of right as of the date entered.” GMAC v. Pittella, 205 N.J. 572, 587 (2011). We review the judge’s decision to compel arbitration de novo. Frumer v. Nat’1 Home Ins. Co., 420 N.J.Super. 7, 13 (App. Div. 2011). The question of whether an arbitration clause is enforceable is an issue of law, which we also review de novo. Atalese v. U.S. Legal Servs. Group, L.P., 219 N.J. 430, 445-46 (2014). We owe no deference to the trial court’s “interpretation of the law and the legal consequences that flow from established facts.” Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995).

Defendants argue that the trial court erred when it determined that the first arbitration agreement signed by Weed four months before plaintiff’s injury was no longer binding on the parties at the time of plaintiff’s injury. We disagree.

While we are mindful that arbitration is a favored means of dispute resolution in New Jersey, the threshold issue before us is whether Weed’s signature on the July agreement would be binding on plaintiff for all subsequent visits. We apply well-established contract principles, and ascertain the parties’ intent from a consideration of all of the surrounding circumstances. James Talcott, Inc. v. H. Corenzwit & Co., 76 N.J. 305, 312 (1978). “An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose.” Tessmar v. Grosner, 23 N.J. 193, 201 (1957).

It is undisputed that neither agreement contains any reference to a term of validity. The parties submitted conflicting affidavits in support of their respective positions. Weed stated there was nothing in the agreement she signed to apprise a participant that the agreement was in effect for longer than the day of entry. Defendants contend that plaintiff did not need a second agreement signed for the November visit as the initial agreement remained in effect.

There is no evidence in the record before us to support defendants’ argument as the agreements are silent as to any period of validity. Defendants drafted these agreements and required a signature from all participants waiving certain claims and requiring submission to arbitration prior to permitting access to the facility. Any ambiguity in the contract must be construed against defendants. See Moscowitz v. Middlesex Borough Bldq. & Luan Ass’n, 14 N.J.Super. 515, 522 (App. Div. 1951) (holding that where a contract is ambiguous, it will be construed against the drafting party). We are satisfied that Judge Marczyk’s ruling declining enforcement of the July agreement was supported by the credible evidence in the record.

We further find that defendants’ argument regarding the November agreement lacks merit. The signor of that agreement was neither a parent, a legal guardian, nor the holder of a power of attorney needed to bind the minor plaintiff to the arbitration agreement. Defendants’ reliance on Hojnowski v. Vans Skate Park, 187 N.J. 323, 346 (2006) is misplaced. While the Court found that a parent had the authority to waive their own child’s rights under an arbitration agreement in Hojnowski, there is no suggestion that such authority would extend to a non-legal guardian. Not only would such a holding bind the minor to an arbitration agreement, it would also serve to bind the minor’s parents, waiving their rights to bring a claim on behalf of their child. We decline to so hold. See Moore v. Woman to Woman Obstetrics & Gynecology, LLC, 416 N.J.Super. 30, 45 (App. Div. 2010) (holding there is no legal theory that would permit one spouse to bind another to an agreement waiving the right to trial without securing consent to the agreement).

As we have concluded the threshold issue that neither the July nor the November agreement is enforceable as to the minor plaintiff, we do not reach the issue of whether the arbitration provision contained within the agreement accords with our legal standards and case law. Judge Marczyk’s denial of defendants’ motion to compel arbitration was supported by the evidence in the record.

Affirmed.

Notes:

[1] Lorianne Weed is A.M.’s mother. Because A.M. is a minor, we use initials in respect of his privacy and we refer to him hereafter as plaintiff.

[2] The agreement required the adult to “certify that [she was] the parent or legal guardian of the child(ren) listed [on the agreement] or that [she had] been granted power of attorney to sign [the] Agreement on behalf of the parent or legal guardian of the child(ren) listed.” There were no proofs presented that the adult met any of these requirements.

[3] JAMS is an organization that provides alternative dispute resolution services, including mediation and arbitration.

 


States that allow a parent to sign away a minor’s right to sue.

If 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
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203. Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

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
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
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 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
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 may void all releases in the state

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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RELEASE (Waiver) CHECKLIST: What MUST your Release contain to work

If you are getting ready for your summer recreation business it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure your release is doing more than wasting paper.

Not all of these clauses mentioned in the checklist may be needed. However, some of them are critical and they may all be modified based on your activity, program, employees, and ability to undertake the risks. Some changes are always needed based on your activities, your guests and the state or local you are working in.

I’ve divided this checklist into three major parts:

  • Required for your Release to be Valid: What is absolutely required
  • Needed: What you should have for your release to be valid in most states
  • What Your Release Cannot Have: What you should never have in your document

There are some subsections also that are fairly self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.

Required for your Release to be Valid

Contract: A release is a contract. The legal requirements required in your state for your electronic or piece of paper release to be a contract.

Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document? Courts want to see that the guest knew they were giving up some legal rights.

Parties: You have to identify who is to be protected by the release and who the release applies too. That means the correct legal names as well as any business name.

Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against. This is any area that is growing in release law.

Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk. Assumption of the Risk is the second defense after your release in stopping a lawsuit.

Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence? The required language and how it must be explained is getting more specific in all states and yet is different in most states.

Plain Language: Is the release written so that it can be understood? Is it written in plain English?

Venue: Does your release have a Venue Clause?

Jurisdiction: Does your release have a Jurisdiction Clause?

Signatures: Does your release have a place for the signor to date and sign the release. For a contract to be valid it must have a signature, or if electronic acknowledgment.

Continuing Duty to Inform: Information to complete the continuing duty to inform for manufacturers

 

Items that may be Needed Dependent upon the Purpose of the Release

Parental Release: Signature of Parent or Guardian AND correct legal language signing away a minor’s right to sue.

Statement the Signor has conveyed the necessary information to minor child

Statement the Signor will continue to convey necessary information to a minor child

Reference to any Required Statute

Signor has viewed the Website

Signor has viewed the Videos

Signor has read the additional information

Notice the Release is a Legal Document:

Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?

Opening/Introduction: Does your release have an opening or introduction explaining its purpose

Assumption of Risk Language

Minor Injuries Noticed

Major Injuries Noticed

Death

Mental Trauma

Signor is Capable of Assuming Risks

Risks identified that are not normally Not Associated with Activity

Drug & Alcohol Statement

Company Right to Eject/Refuse

Signor is in Good Physical Condition

Able to Undertake the activity

Good Mental Condition

Release Protects Against

Lost Personal Property

Lost Money

Lost Time

Loss of Life

Medical Bills

Injuries

Indemnification Clause

First party costs

Third party costs

Severance Clause

Enforceability of the Release Post Activity

 

Language Dependent on How the Release is to be Used

Product Liability Language

Release of Confidential Medical Information

Demo Language

Rental Agreement Clause

SAR & Medical Issues

Permission to release medical information

Medical Evacuation

Medical Release

Medical Transportation

Waiver of medical confidentiality

Waiver of HIV status

Alternative Resolution

Arbitration

Mediation

Items I include in the releases I write

How Release is to be interpreted

Statement as to Insurance

Signor has Adequate Insurance

Incidental issues covered

Signor has Previous Experience

Signor Read and Understood the Contract

Agreement that the document has been read

Agreement that the signor agrees to the terms

What Your Release Cannot Have

Places to Initial: This just requires more effort on your staff to check and is not legally required.

Small Print: If a judge can’t read it, then it does not exist.

Attempting to Hide your Release: You attempt to hide your release; the judge will act like he or she never found it. The below are all examples of attempting to hide a release.

No heading or indication of the legal nature

Release Hidden within another document

Important sections with no heading or not bolded: No hiding your release

Multiple pages that are not associated with each other: splitting up your release is hiding it.

No indication or notice of the rights the signor is giving up: Some day the statement I did not understand it will resonate with a judge. This prevents that.

Most Importantly, had your Release Updated Recently

Has your release been reviewed by an attorney in the past year or do you work with an attorney that updates you on changes you need to make to your release? The law concerning releases is changing constantly, more now than ever before. In the past two years I’ve made a dozen tweaks to how I write a release based on those legal changes. If your release has not been updated, you may no longer have a release.

Remember: Nothing in your marketing program invalidates your release. Does your marketing not create liability not covered in your release? Is your marketing directed to the correct people that your release was written for?


States that allow a parent to sign away a minor’s right to sue

If 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
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

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
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
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 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
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 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

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

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New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

This is not enough law to rely on, but it is a start to build upon to argue that a parent can sign a release for a minor for skiing activities, and the minor cannot sue.

DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695

State: New York, United States District Court for the Western District of New York

Plaintiff: Bryan DiFrancesco as father and natural guardian of the infant minor, LD,

Defendant: Win-Sum Ski Corp., Holiday Valley, Inc.,

Plaintiff Claims: allege negligent instruction and supervision

Defendant Defenses: Child assumed the risk and release

Holding: Decision was mixed concerning the evidentiary issues

Year: 2017

This is a motion in limine decision. That means it was the judge’s response to motions by both sides to include or exclude evidence. Meaning one party files a motion in limine to prevent the other party from introducing a document, testimony or in some cases witnesses at trial.

This answer covered numerous motions for both parties. The analysis here will only cover issues relevant to the outdoor industry in general and not cover the purely legal arguments.

The case is about a five-year-old girl who suffered injuries when she fell out of the chairlift while taking a ski lesson from the defendant. The suit was filed in Federal District Court in New York because the plaintiffs are from Canada.

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

The first issue that the court reviewed was whether a five-year-old  could assume the risk of her injury. Each state has different age groups that have been determined over the years for when a child can assume the risks of their injuries. In New York, a child cannot assume the risk of their injury under the age of 5. Children 5 and above, the issue has not been determined to set a real standard a court could rely upon. If there was a set age, a jury would still have to determine if the child assumed the risk.

The plaintiffs were arguing the plaintiff was too young to assume the risk.

Over the age of four, the status of a child is a question of fact regarding the particular child’s ability to comprehend danger and care for herself, younger than four years of age, “an infant . . . may be so young that he is unable to apprehend the existence of danger, take precautions against it and exercise any degree of care for his own safety.

The plaintiff argued that assumption of the risk should not be a defense in the case because the injured child was 5. Since the child had been skiing in the past, the defense wanted to bring the defense of assumption of the risk. The child has skied, been injured skiing previously and had written chairlifts before, although always with an adult. The court found it was a subject the jury had the right to determine.

One factual element in this case is the maturity and knowledge of LD as to whether she assumed the risk of riding the chairlift here despite being five years old. LD testified at her deposition that prior to the 2010 incident she rode chairlifts two or three other times, each time with her father plaintiff Bryan DiFrancesco who assisted her getting on and off the lift his ski pole over LD’s lap until it was time to get off the chairlift. Whether LD in her circumstances could assume the risk of riding and disembarking from the chairlift by herself is an issue of fact and evidence regarding her maturity, age, experience, intelligence, literacy, and mental capacity to understand the risks she faced is relevant and admissible. As a result, plaintiffs’ motion precluding evidence of LD assuming the risk is denied.

The next argument the plaintiff made was the release was void as against public policy in New York. This was confusing because no release was presented or explained. However, it appears that the New York Safety in Skiing code allows for releases in the statute. By the end of the discussion, it seems the uncle of the injured child signed a release on her behalf.

The plaintiff argued that the New York law that voided releases in general applied and should void this release, New York General Obligations Law § 5-326. However, the court agreed with the defendant that the New York Safety in Skiing code authorized the release and over ruling New York General Obligations Law § 5-326.

The plaintiff’s also argued that since the injured plaintiff has never read or signed the release, she could not be held to it.

The court broke down its analysis of the issue first by looking at whether the injured five-year-old  disaffirmed the release. In this case, disaffirmance means the child can argue a release signed on their behalf is invalid. In New York that is normally the case. However, the legislature has created exceptions to that rule.

“The exception from this common law power of the infant to disaffirm written consents made on her behalf is where the New York State Legislature either abrogates this common law right or makes particular infant agreements binding upon the infant,….

While conceding that at common law an infant could disaffirm written consent made for her, the Court of Appeals in Shields recognized that the State Legislature could abrogate that right or create a right upon infants to enter into binding contracts. “Where a statute expressly permits a certain class of agreements to be made by infants that settles the question and makes the agreement valid and enforceable….

The court then looked at the New York Safety in Skiing code and found the statute specifically created that exception.

The Safety in Skiing Code and its regulations provide an abrogation of the common law right of an infant skier to disaffirm the release signed on her behalf. First, the State Legislature used the term “skier” without expressly distinguishing the age of skier. Second, the State Legislature authorized and directed the Commissioner of Labor to enact necessary rules and regulations. Pursuant to that authority, the Commissioner enacted 12 N.Y.C.R.R. § 54.1 to have the regulations under the Safety in Skiing Code apply to “all skiers,” again without distinction due to the age of the skier.

The court held that a minor could be held to a release signed by a parent or in this case, a temporary guarding uncle.

The Safety in Skiing Code statutory and regulatory scheme including “all skiers” makes releases signed by adults bind infant skiers and removes the infants’ common law right to disaffirm the releases executed in their minority. On this basis, plaintiffs’ motion in limine to exclude the Holiday Valley release is denied.

However, this was not a blanket decision saying the release eliminated all claims of the plaintiff. The court found the uncle had to have read the release to the injured plaintiff. Whether she understood its contents, and the risks outlined there was a question to be determined at trial.

This release itself raises factual issues, such as whether Uncle Dean DiFrancesco actually read the release to LD and whether she understood its contents, including the risks stated therein (particularly, the risks in riding and dismounting a chairlift).

The court then reviewed the defense’s motions in limine which were mostly legal in their scope and not of value here.

This case as of March 2017 is proceeding to trial.

So Now What?

First, this decision was made by a Federal District Court magistrate applying New York State law. The New York courts can ignore the law and until the New York Supreme court rules on the issues, this is not binding to any major degree on other courts. However, it is a start and quite interesting in the analysis of the issues.

The first is assumption of the risk is a valid defense in New York possibly applies to children as young as five. You can develop ways for five year olds to understand the risk; you can use that defense against claims. Probably the easiest way is a video, or maybe two videos. The first video is shown to the children which shows them the risk of the activity they are about to undertake. The second video is of the children watching the video.

This should always be backed up with as many other options as you can create. Have your release state the parent has explained the risks to the child and that the parent, and the child accept them. Put those risks in the release and have the parent state they reviewed the release with the child. Place the risks on your website in different ways and have the parent state they have reviewed the risks on the website with the child and agree to that in the release.

Any way you can show that the child knew of the risks, can create a defense for you for a claim by an injured minor.

The second issue is actually more interesting. 1.) that an adult can sign away a minor’s right to sue in New York and 2.) that adult does not have to be a parent as long as the adult reviews the release with the minor.

Again, this was a preliminary motion hearing in a Federal district court; however, the ruling was explained and supported by case law. As such, it may have some validity and lead to further decisions like this.

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

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

Copyright 2017 Recreation Law (720) Edit Law

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

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DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695

DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695

Bryan DiFrancesco as father and natural guardian of the infant minor, LD, Plaintiffs, v. Win-Sum Ski Corp., Holiday Valley, Inc., Defendants.

13CV148

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

2017 U.S. Dist. LEXIS 39695

March 20, 2017, Decided

March 20, 2017, Filed

PRIOR HISTORY: DiFrancesco v. Win-Sum Ski Corp., 2017 U.S. Dist. LEXIS 24784 (W.D.N.Y., Feb. 22, 2017)

COUNSEL:  [*1] For Bryan DiFrancesco, as father and natural guardian of the infant minor, LD, Bryan DiFrancesco, Individually, Plaintiffs: Philip L. Rimmler, LEAD ATTORNEY, Russell T. Quinlan, Paul William Beltz, P.C., Buffalo, NY.

For Win-Sum Ski Corp, Holiday Valley, Inc., Defendants: Maryjo C. Zweig, Steven M. Zweig, LEAD ATTORNEYS, Cheroutes Zweig, PC, Hamburg, NY.

JUDGES: Hon. Hugh B. Scott, United States Magistrate Judge.

OPINION BY: Hugh B. Scott

OPINION

CONSENT

Order

The parties then consented to proceed before the undersigned as Magistrate Judge, including presiding over a jury trial (Docket No. 37). Presently before the Court are the parties’ first round of motions in limine in preparation for a jury trial. Defendants first submitted their motion in limine (Docket No. 53). Plaintiffs’ then filed their motion in limine (Docket No. 56). Defendants then supplemented their motion in limine (Docket No. 58). As scheduled in the Final Pretrial Order (Docket No. 40), these initial motions in limine were due by January 3, 2017 (id.), later extended at the parties’ request to January 6, 2017 (Docket No. 42); responses initially were due by January 17, 2017, and they were to be argued with the Final Pretrial Conference on January 18, [*2]  2017, and then be deemed submitted (Docket No. 40). Responses to these motions were postponed then and were due by February 3, 2017 (Docket No. 63), which defendants submitted (Docket No. 65) and plaintiffs submitted (Docket No. 66); and reply by February 10, 2017 (Docket No. 63), which defendants submitted (Docket No. 67) and plaintiffs submitted (Docket No. 68); and argument was held on February 16, 2017 (Docket Nos. 63, 69 (minutes)). These motions were deemed submitted at the conclusion of oral argument. During that argument, scheduling for the Pretrial Conference and jury selection and trial were discussed with the trial reset for July 17, 2017 (Docket No. 69; see Docket Nos. 70, 71). The jury selection and trial of this case was scheduled for February 1, 2017 (Docket No. 40, Final Pretrial Order), but was later adjourned (Docket Nos. 63, 64).

Separately, this Court addressed plaintiffs’ motion for a protective Order and to quash two subpoenas (Docket Nos. 43 (motion), 70, Order of February 22, 2017), familiarity with which is presumed.

BACKGROUND

This is a diversity personal injury action. Plaintiffs are a Canadian father and daughter, while defendants are New York corporations [*3]  which operate Holiday Valley. Plaintiff LD (hereinafter “LD,” cf. Fed. R. Civ. P. 5.2) was a five-year-old in 2010 who skied at Holiday Valley. Plaintiffs allege that LD was injured falling when from a chairlift at Holiday Valley (Docket No. 1, Compl.; see Docket No. 43, Pls. Atty. Decl. ¶ 3, Ex. B).

According to plaintiffs’ earlier motion, LD was participating in a ski lesson at Holiday Valley on February 15, 2010, under the supervision of defendants’ employee, a ski instructor, when she fell from the chairlift sustaining injuries to her left leg and left hip. Plaintiffs allege negligent instruction and supervision during the course of that lesson resulting in LD’s fall. (Docket No. 43, Pls. Atty. Decl. ¶¶ 3, 9, Ex. E; see id., Pls. Memo. at 1-2.)

The Scheduling Order (after extensions, see Docket Nos. 14-15, 20, 23, 25, 27) in this case had discovery conclude on April 30, 2015 (Docket No. 27; see Docket No. 43, Pls. Atty. Decl. Ex. D). No motions to compel were filed and the parties reported on October 5, 2015, readiness for trial (Docket No. 30). Plaintiffs’ motion to quash subpoenas and for a protective Order led to the parties exchanging supplemental discovery, which was to be completed by April 5, [*4]  2017 (Docket No. 70, Order of Feb. 22, 2017, at 21, 22). Defendants’ First Motion in Limine (Docket No. 53)

Pursuant to the Final Pretrial Order (Docket No. 40), defendants filed their motion in limine, seeking preclusion of portions of the opinions of plaintiffs’ expert, Dick Penniman; evidence of defendants’ subsequent remediation; and evidence of prior and subsequent incidents similar to the accident at issue (Docket No. 53). Plaintiffs’ response and defendants’ reply will be addressed below at each particular item. Plaintiffs’ Motion in Limine (Docket No. 56)

Plaintiffs also filed their timely motion in limine (Docket No. 56), seeking to preclude evidence that infant LD assumed the risk of riding the chairlift, evidence from LD’s injury at Holimont in 2015, and evidence of a disclaimer that plaintiffs argue is against public policy (id.).

Defendants argue that plaintiffs’ motion in limine is in fact an untimely motion for summary judgment and that issues of fact exist, hence there is no basis to preclude evidence as to plaintiffs’ assumption of the risk or comparative negligence (Docket No. 65, Defs. Memo. at 5-6). They contend that the registration form with the release signed by [*5]  LD’s uncle is admissible because the release tracks the “Warning to Skiers” required by New York General Obligations Law § 18-106(1)(a) and regulations under 12 N.Y.C.R.R. § 54.5(l)(1) (id. at 7). They fault plaintiffs for not addressing Vanderwall v. Troser Management, Inc., 244 A.D.2d 982, 665 N.Y.S.2d 492 (4th Dep’t 1997), leave to appeal denied, 91 N.Y.2d 811, 694 N.E.2d 883, 671 N.Y.S.2d 714 (1998) (id.). That case charged the jury there with express assumption of the risk for exposure to drainage ditches even though those risks were not enumerated in “Warning to Skiers,” Vanderwall, supra, 244 A.D.2d at 982, 665 N.Y.S.2d at 493 (id.). Defendants’ Supplemental Motion in Limine (Docket No. 58)

Defendants later supplemented their motion in limine seeking preclusion of undisclosed expert testimony and to limit as expert testimony from LD’s parents as to her treatment (both past and future) and LD’s physical therapist testifying as to causation and diagnosis (Docket No. 58).

Plaintiffs’ respond that they did provide disclosure of future medical expenses; alternatively, they contend that defendants waived any objection to an omitted response by not moving to compel or for preclusion (Docket No. 66, Pls. Memo. at 16-18).

During oral argument of plaintiffs’ motion for a protective Order and to quash the two subpoenas (Docket No. 69), the parties submitted on their respective papers for these motions in limine (id.). They also discussed the need to supplement [*6]  their disclosure, especially LD’s future medical treatment and needs (id.).

DISCUSSION

I. Applicable Standards

In a diversity jurisdiction action, this Court initially must apply the substantive law of our forum state, New York, see Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1983); Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 116 n.4 (2d Cir. 2002), including its choice of law regime, Klaxon v. Stentor, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). This Court has to apply New York law as construed by the highest court of the state, the New York State Court of Appeals, not the local intermediate appellate court. When the New York State Court of Appeals has not ruled on the particular question, this Court then has to predict the direction the Court of Appeals would go if given that issue, see Gasperini v. Center for Humanities, Inc., 66 F.3d 427, 430 (2d Cir. 1995).

In personal injury actions, New York generally applies the law of the jurisdiction in which the injury occurred. See Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 612 N.E.2d 277, 595 N.Y.S.2d 919 (1993); Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 454, 335 N.Y.S.2d 64 (1972). “New York’s current choice-of-law rules require the court to consider the following three elements: the domicile of the plaintiff, the domicile of the defendant, and the place where the injury occurred.” Lucas v. Lalime, 998 F. Supp. 263, 267 (W.D.N.Y. 1998) (Heckman, Mag. J., R&R, adopted by Arcara, J.). Where more than one element is in the same state, that state’s law should apply. Id.; Datskow v. Teledyne Continental Motors, 807 F. Supp. 941, 943 (W.D.N.Y. 1992) (Larimer, J.). Under these choice of law rules “the first step in any case presenting a potential choice of law is to [*7]  determine whether there is an actual conflict between the laws of the jurisdiction involved.” Matter of Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 223, 613 N.E.2d 936, 597 N.Y.S.2d 904, 905 (1993).

Here, the accident and defendants are in New York, plaintiffs are from Ontario. As a second1 Neumeier situation, New York law would apply, Neumeier, supra, 31 N.Y.2d at 128, 335 N.Y.S.2d at 70; Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 72, 612 N.E.2d 277, 595 N.Y.S.2d 919, 922 (1993) (conduct-regulating laws, the law of the jurisdiction where the tort occurs applies while loss allocation laws have additional factors to determine which jurisdiction applies, citations omitted). In addition, the parties in effect have stipulated to apply forum (New York) law to this case. Both sides cite New York law and made no reference to any other jurisdiction’s law having application. Neither side has presented any law that conflict with New York law. New York courts enforce stipulations to choice of law, see Hamilton v. Accu-Tek, 47 F. Supp.2d 330, 343 (E.D.N.Y. 1999) (citing, among other cases, Tehran-Berkeley Civil & Envtl. Eng’rs v. Tippetts-Abett-McCarthy-Stratton, 888 F.2d 239, 242 (2d Cir. 1989) (parties briefed New York law, court applies New York law based upon implied consent of parties)); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 834 n.2 (2d Cir. 1967) (Friendly, J.); Klein v. Jostens, Inc., No. 83 Civ. 5351, 1985 U.S. Dist. LEXIS 18115, at *6 n.1 (S.D.N.Y. July 9, 1985). As a result New York law applies and the legal issues surrounding these evidentiary disputes will be resolved under New York law.

1 The second Neumeier situation is the defendant is from state A, plaintiff from state B, state A is where tort occurs; state A allows recovery, defendant cannot invoke state B’s law, similarly if state A does not allow recovery, defendant is not liable, thus state A’s law applies; or, as stated in New York Jurisprudence Conflict of Laws § 57, 19A N.Y. Jur., where local law favors respective domiciliary, the law of the place of injury generally applies, Neumeier, supra, 31 N.Y.2d at 128, 335 N.Y.S.2d at 70.

II. Application

A. Plaintiffs’ Motion in Limine, Docket No. 56

1. Preclude Evidence of LD’s Assumption of Risk

The heart of [*8]  this case is whether this five-year-old child can assume the risk inherent with riding and dismounting from a chairlift under New York law. Cases from New York State courts leave as an issue of fact for the jury whether a particular infant (regardless of the child’s age) was capable of assuming the risk of his or her activities. New York courts do not create a bright line rule that minors at five years or older are incapable of assuming risk, but cf. Smith v. Sapienza, 115 A.D.2d 723, 496 N.Y.S.2d 538 (2d Dep’t 1985) (holding, as matter of law, that three and a half year old child victim of dog attack was incapable of being held responsible for his actions for contributory negligence). New York common law “has long disclaimed any per se rule with regard to the age at which a child cannot legally assume a risk and thereby not be responsible for comparative fault for his or her injury,” Clark v. Interlaken Owners, Inc., 2 A.D.3d 338, 340, 770 N.Y.S.2d 58, 60 (1st Dep’t 2003) (Tom, J., dissent). The majority of Clark court held that assumption of risk doctrine did not apply to a five-year-old playing around exposed construction equipment, “where the danger was even more accessible [than another case cited] and the risk at least as unappreciated by this five-year-old plaintiff,” 2 A.D.3d at 340, 770 N.Y.S.2d at 60 (emphasis supplied), citing Roberts v. New York City Hous. Auth., 257 A.D.2d 550, 685 N.Y.S.2d 23 (1st Dep’t), leave to appeal denied, 93 N.Y.2d 811, 716 N.E.2d 698, 694 N.Y.S.2d 633 (1999), concluding [*9]  that instructing the jury on assumption of the risk was error as a matter of law, Clark, supra, 2 A.D.3d at 340, 770 N.Y.S.2d at 60. In Roberts, the Appellate Division held a “six-year old under these circumstances” that is, a child exposed to a steam line fenced off by an easily breached fence next to the lawn where children played, did not have the doctrine of assumption of risk apply, 257 A.D.2d at 550, 685 N.Y.S.2d 23, 23. Roberts provided an opportunity for establishing an age-based bright line rule but the court decided on the specific facts of that case; hence the standard plaintiffs are in effect arguing was not adopted by New York courts.

Plaintiff argues that LD was just days away from being one year older than the non sui juris status of age four and being incapable as a matter of law being culpable (Docket No. 66, Pls. Opp. Memo. at 4-5). Assumption of risk is a distinct defense from contributory negligence, see Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 165, 480 N.E.2d 365, 490 N.Y.S.2d 751, 754-55 (1985), but both defenses are subject to the doctrine of non sui juris, see M.F. v. Delaney, 37 A.D.3d 1103, 1104-05, 830 N.Y.S.2d 412, 414 (4th Dep’t 2007) (assumption of risk and culpable conduct by plaintiffs should have been dismissed because plaintiffs were 2 and 3 years old and hence were non sui juris). Plaintiffs point to the concept of non sui juris that absolves children of a certain age or younger from culpability since (as [*10]  a matter of law) they are incapable of comprehending danger to be negligent or responsible for her actions, Republic Ins. Co. v. Michel, 885 F. Supp. 426, 432-33 (E.D.N.Y. 1995) (Azrack, Mag. J.). Over the age of four, the status of a child is a question of fact regarding the particular child’s ability to comprehend danger and care for herself, id. at 432; younger than four years of age, “an infant . . . may be so young that he is unable to apprehend the existence of danger, take precautions against it and exercise any degree of care for his own safety. The law calls such a child, non sui juris,” id. at 433; see also id. at 433 n.8 (literal translation of Latin phrase is “not his own master,” quoting Black’s Law Dictionary 1058 (6th ed. 1990)). The non sui juris child is incapable of committing negligence, id. at 433. “Where an infant is older than four years of age, the status of that child as sui juris or non sui juris is to be determined by the trier of fact,” id. (citing cases), with factors of the child’s intelligence and maturity dictating that status, id. One federal court, applying New York contributory negligence doctrines, held that the status of a child over the age of four was a question of fact addressing “the particular child’s ability to comprehend danger and care for himself,” [*11]  Republic Ins. Co., supra, 885 F. Supp. at 432 (see Docket No. 67, Defs. Reply Memo. at 5-6). If there is a bright-line rule under New York law, the age is four years old, not five as was LD when she was injured.

The age of the plaintiff is a factor in determining whether they are capable of assuming risk of their actions, see Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 396, 927 N.E.2d 547, 901 N.Y.S.2d 127, 130 (2010); Clark, supra, 2 A.D.3d at 340, 770 N.Y.S.2d at 60 (error to instruct on assumption of risk for five-year-old on construction vehicle) (Docket No. 54, Pls. Tr. Memo. at 6); Roberts, supra, 257 A.D.2d 550, 685 N.Y.S.2d at 24; Trippy v. Basile, 44 A.D.2d 759, 354 N.Y.S.2d 235, 236 (4th Dep’t 1974) (error to instruct jury that five and half year old child contributorily negligent, and could be so charged only if he had the age, experience, intelligence development and mental capacity to understand the meaning of the statute violated and to comply therewith) (Docket No. 54, Pls. Tr. Memo. at 5-6). As noted by the Court of Appeals in Trupia, supra, 14 N.Y.3d at 396, 901 N.Y.S.2d at 130, in an almost 12-year-old child’s claim from sliding down a bannister, that court states that children often act impulsively or without good judgment, “they do not thereby consent to assume the consequently arising dangers” for assumption of risk. Plaintiffs distinguish DeLacy v. Catamount Dev. Corp., 302 A.D.2d 735, 755 N.Y.S.2d 484 (3d Dep’t 2003), due to the plaintiffs in that case being two years older than LD was in 2010 (Docket No. 68, Pls. Reply Memo. at 5; see also Docket No. 66, Pls. Memo. at 4; but cf. Docket No. [*12]  65, Defs. Memo. at 5-6). But the New York Court of Appeals has not ruled on this question, but the consensus of other New York courts do not recognize a bright line rule that at age five or six a child is incapable of having the requisite knowledge and maturity to assume the risks of their actions; non sui juris status is applicable to four years old and that age or older is an issue of fact.

Courts in New York have concluded that assumption of the risk is a question of fact for the jury, Moore v. Hoffman, 114 A.D.3d 1265, 1266, 980 N.Y.S.2d 684, 685 (4th Dep’t 2014), in particular, riding and dismounting a chairlift has risks that raises questions of fact, DeLacy, supra, 302 A.D.2d at 736, 755 N.Y.S.2d at 486 (questions of fact whether a seven-year-old novice skier fully appreciated the risks associated with using a chairlift) (Docket No. 65, Defs. Memo. at 6). One factual element in this case is the maturity and knowledge of LD as to whether she assumed the risk of riding the chairlift here despite being five years old. LD testified at her deposition that prior to the 2010 incident she rode chairlifts two or three other times, each time with her father plaintiff Bryan DiFrancesco who assisted her getting on and off the lift (Docket No. 56, Pls. Atty. Decl. ¶ 18, Ex. C, LD EBT Tr. at 9), even to having Bryan hold [*13]  his ski pole over LD’s lap until it was time to get off the chairlift (id., Tr. at 9). Whether LD in her circumstances could assume the risk of riding and disembarking from the chairlift by herself is an issue of fact and evidence regarding her maturity, age, experience, intelligence, literacy, and mental capacity to understand the risks she faced is relevant and admissible. As a result, plaintiffs’ motion precluding evidence of LD assuming the risk is denied.

This is notwithstanding defendants’ argument that plaintiffs’ motion in limine here is in fact an untimely motion for summary judgment (Docket No. 65, Defs. Memo. at 5-6; Docket No. 67, Defs. Reply Memo. at 2-3). As plaintiffs rebut (Docket No. 68, Pls. Reply at 2-4), they are not seeking entry of judgment to dismiss a defense, instead they properly seek preclusion of evidence. But the factual issues in this case under New York law require production of evidence of LD’s capacity to assume risk.

2. Preclude Evidence of LD’s 2015 Snowboarding Incident

Plaintiffs next seek excluded evidence from an accident LD had at Holimont in 2015 resulting in injuries to her clavicle, contending that the evidence is prejudicial and would be admitted [*14]  to show her to be accident prone (Docket No. 56, Pls. Memo. at 7-10). LD’s injuries in 2010 were to her left leg and hip and not to her clavicle (id. at 8). As argued in the motion to quash the subpoena to Holimont (Docket No. 43, Pls. Memo. at 7), LD did not waive the physician-patient privilege for LD’s treatment of the 2015 injuries (Docket No. 56, Pls. Memo. at 8, 9-10). Plaintiffs conclude that LD’s subsequent snowboarding accident is not relevant to her 2010 injuries (id. at 9).

Defendants contend that LD’s injuries are not limited to her leg and hip, but also include loss of enjoyment of life and emotional injuries (Docket No. 65, Defs. Memo. at 12, citing Docket No. 56, Pls. Atty. Decl., Ex. H, Response to Defs. Interrog. No. 1). Again, as argued to defend the subpoena upon Holimont, defendants contend that Second Department law provides that LD put her physical condition at issue, justifying admissibility of her 2015 injuries (Docket No. 65, Defs. Memo. at 13).

But as noted in deciding plaintiffs’ earlier motion (Docket No. 43), this Court in diversity is bound by the common law of New York as settled by the New York State Court of Appeals or this Court’s prediction of how the New York Court [*15]  of Appeals would decide the issue if brought to it (see Docket No. 70, Order of February 22, 2017, at 13). This Court has held that the Court of Appeals, if it addressed the waiver of physician-patient privilege, would limit that waiver to so much of LD’s physical or mental condition placed in controversy here (id. at 17; see id. at 16-17 (holding that plaintiffs have standing to object to the subpoena based upon the unwaived privilege)). This case is about LD’s injuries from the 2010 incident, with physical injuries to her lower body. Discussion of LD’s accident five years later and to an unrelated body part is not relevant to her claims and would prejudice plaintiffs, see Fed. R. Evid. 403. Admitting evidence of the 2015 accident would introduce character evidence that LD acted in accordance with a particular trait (clumsiness), see Fed. R. Evid. 404(a)(1). Defendants have other means of establishing the limits on LD’s loss enjoyment of life and limitations on her activities after the 2010 accident (such as her father’s deposition testimony as to her activities, see Docket No. 43, Pls. Atty. Decl., Ex. C, Bryan DiFrancesco EBT Tr.10-21, 23, 95-96)).

This Court ordered plaintiffs to produce for in camera inspection the Holimont medical records [*16]  from the 2015 incident for this Court to determine if there is anything applicable to this case, such as distinguishing 2010-caused injuries from 2015 injuries or the effects of the 2015 incident on LD’s 2010 injuries (Docket No. 70, Order of Feb. 22, 2017, at 17-18). This in camera inspection was for this Court to determine if there is anything applicable to this case, such as discussion of LD’s 2010 injuries or distinguishing 2010-caused injuries from 2015 injuries or the effects of the 2015 incident had on LD’s 2010 injuries (Docket No. 70, Order of Feb. 22, 2017, at 17-18). This Court received those in camera medical records (received March 6, 2017)2 and reviewed them and find that the following documents should be produced and those that should not. Below is Table 1, a spreadsheet listing the reviewed documents and their production status.

2 These documents were not Bates numbered or otherwise identified or paginated. Thus, this Court described the reviewed documents by their date and generic type, to avoid disclosure of contents.

[Chart Removed because it would not format for this site]

The documents ordered to be produced are those relevant to LD’s 2010 injuries, namely to her left leg and hips. Excluded are those documents that refer only to her 2015 clavicle injury. The documents that plaintiffs are to produce are the April 1, 2017, memorandum; the January 4, 2015, consultation report; notes from July 30, 2015; and the July 30, 2015, notes from Hamilton Health Sciences. The remaining documents exclusive involve the 2015 incident and injury and there was not connection made to LD’s 2010 injuries.

Thus, so much of plaintiffs’ motion (Docket No. 56) to preclude evidence from LD’s 2015 Holimont accident is granted in part, denied in part, with plaintiffs only to produce the documents identified above.

3. Preclude [*18]  Evidence as Against Public Policy

Plaintiffs point to General Obligations Law § 5-326 that render defendants’ disclaimers as the operator of a place of amusement void as against public policy (Docket No. 56, Pls. Memo. at 4-5), see Rogowicki v. Troser Mgmt., 212 A.D.2d 1035, 623 N.Y.S.2d 47 (4th Dep’t 1995). Defendants counter that the statutory and regulatory scheme under the Safety in Skiing Code, N.Y. Gen. Oblig. L. § 18-106; Labor Law §§ 202-c (use of ski tows), 867 (Safety in Skiing Code), authorized the release warning given in the form signed by LD’s uncle (Docket No. 65, Defs. Memo. at 7), see Vanderwall, supra, 244 A.D.2d at 982, 665 N.Y.S.2d at 493.

Plaintiffs also argue that any release here would be ineffective as to LD since she never read or signed it, hence it could not serve as a waiver of liability for her injuries (Docket No. 56, Pls. Memo. at 5), see Franco v. Neglia, 3 Misc. 3d 15, 776 N.Y.S.2d 690 (N.Y. App. Term 2004) (release invalid against 14-year-old participant, who signed release, in first kickboxing class); Kaufman v. American Youth Hostels, Inc., 6 A.D.2d 223, 229, 177 N.Y.S.2d 587, 593 (2d Dep’t 1958) (release signed by father invalid for child’s injuries) (id.). Plaintiffs’ reply that defendants fail to address how LD’s uncle can bind LD on the registration form waiver (Docket No. 68, Pls. Reply Memo. at 4), by not distinguishing Franco, supra, 3 Misc. 3d 15, 776 N.Y.S.2d 690 (N.Y. App. Term 2004), or Kaufman, supra, 6 A.D.2d 223, 229, 177 N.Y.S.2d 587, 593 (2d Dep’t 1958) (id.). They note that General Obligations Law § 18-106(1)(a) lists the risks inherent in skiing but do not mention the risks inherent in riding a chairlift (id.). Specifically, [*19]  none of those risks include having a second child obey a sign to open the chairlift bar prematurely and the negligent location of that sign (see id. at 4-5). Plaintiffs argue that assumption of risk is not automatic for every personal injury case that a novice (regardless of their age) cannot as a matter of law assume a risk (id. at 6, citing Corrigan v. Musclemakers Inc., 258 A.D.2d 861, 863, 686 N.Y.S.2d 143, 145 (3d Dep’t 1999) (injured 49-year-old woman who never been on treadmill)).

But in Franco the infant fourteen-year-old plaintiff signed the release, 3 Misc. 3d at 16, 776 N.Y.S.2d at 691. The Supreme Court, Appellate Term, held that an infant is not bound by releases which exculpate defendants from damages for personal injury “since they lack the capacity to enter into such agreements,” id., at 16, 776 N.Y.S.2d at 691 (citing Kaufman, supra, 6 A.D.2d 223, 177 N.Y.S.2d 587). The plaintiff’s decedent fifteen-year-old child in Kaufman, supra, 6 A.D.2d at 229, 225, 177 N.Y.S.2d at 593, 589, signed the release with her father. The Appellate Division, applying Oregon law, see id. at 225, 177 N.Y.S.2d at 589, held that the effect of the father’s signature was ambiguous, id. at 229, 225, 177 N.Y.S.2d at 593, 589. The decedent’s capacity there to sign the release by reason of her infancy “was effectively exercised by [her] by the act of commencing this action,” id., at 229, 177 N.Y.S.2d at 593. The Appellate Division upheld striking the defense of decedent’s release because she disaffirmed “the agreement by reason of her infancy” exercised by her father’s commencement [*20]  of this action but reversed regarding striking that defense for the father’s separate action against the hostel, id. at 229, 177 N.Y.S.2d at 593. Neither case held that the signature of the parent or guardian alone of a release was binding upon the infant for whom the guardian signed. Thus, these cases do not go as far as plaintiffs contend to render ineffective a release signed by a guardian on behalf of an infant participating in a risky activity.

a. Infant Disaffirmance of Release

“A minor is not bound by a release executed by his parent,” Alexander v. Kendall Cent. Sch. Dist., 221 A.D.2d 898, 899, 634 N.Y.S.2d 318, 319 (4th Dep’t 1995); I.C. ex rel. Solovsky v. Delta Galil USA, 135 F. Supp. 3d 196, 209 (S.D.N.Y. 2015); Shields v. Gross, 58 N.Y.2d 338, 344, 448 N.E.2d 108, 461 N.Y.S.2d 254, 257 (conceding that infant, Brooke Shields, could under common law disaffirm consent executed by another on her behalf), rehearing denied, 59 N.Y.2d 762, 450 N.E.2d 254, 463 N.Y.S.2d 1030 (1983). The exception from this common law power of the infant to disaffirm written consents made on her behalf is where the New York State Legislature either abrogates this common law right or makes particular infant agreements binding upon the infant, Shields, supra, 58 N.Y.2d at 344-45, 461 N.Y.S.2d at 257.

While conceding that at common law an infant could disaffirm written consent made for her, the Court of Appeals in Shields recognized that the State Legislature could abrogate that right or create a right upon infants to enter into binding contracts, id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257. “Where a statute expressly permits a [*21]  certain class of agreements to be made by infants, that settles the question and makes the agreement valid and enforceable,” id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257, with that statute being construed strictly, id., 58 N.Y.2d at 344, 461 N.Y.S.2d at 257 (citing McKinney’s Consol. Laws of N.Y., Book 1, Statutes § 301(b)).

Here, the Safety in Skiing Code had as part of its legislative purpose

“(3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry,”

N.Y. Gen. Oblig. L. § 18-101. The act establishing this Code empowered the New York State Commissioner of Labor to promulgate “any and all rules and regulations necessary to the timely implementation [*22]  of the provisions of this act,” 1988 N.Y. Laws ch. 711, § 4. These regulations “applies to all skiers and ski areas” and owners and operators of ski areas to which the Code applied to, N.Y. Comp. Codes R. & R. tit. 12, § 54.1 (2017) (hereinafter cited as “12 N.Y.C.R.R.”), without special provision or exception for juvenile skiers. That same act authorized the Commissioner of Labor to make rules to guard “against personal injuries to employees and the public in the use and operation of ski tows, other passenger tramways and downhill ski areas,” N.Y. Labor Law § 202-c.

The Code also imposed on skiers the additional duties “to enable them to make informed decisions as to the advisability of their participation in the sport,” to

“seek out, read, review and understand, in advance of skiing, a ‘Warning to Skiers’ as shall be defined pursuant to subdivision five of section eight hundred sixty-seven of the labor law [N.Y. Labor L. § 867(5)], which shall be displayed and provided pursuant to paragraph a of subdivision one of this section [N.Y. Gen. Oblig. L. § 18-106(1)(a)]; and . . . to obtain such education in the sport of skiing as the individual skier shall deem appropriate to his or her level of ability, including the familiarization with skills and duties necessary to reduce [*23]  the risk of injury in such sport,”

N.Y. Gen. Oblig. L. § 18-106(2), (a), (b); see N.Y. Labor Law § 867(5); 12 N.Y.C.R.R. §§ 54.5(l)(1), 54.4(c)(1); see also N.Y. Gen. Oblig. L. § 18-106(1)(a) (ski are operator’s duty to post conspicuously “Warning to Skiers”). “Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law,” N.Y. Gen. Oblig. L. § 18-107.

The Safety in Skiing Code and its regulations provide an abrogation of the common law right of an infant skier to disaffirm the release signed on her behalf. First, the State Legislature used the term “skier” without expressly distinguishing the age of skier. Second, the State Legislature authorized and directed the Commissioner of Labor to enact necessary rules and regulations. Pursuant to that authority, the Commissioner enacted 12 N.Y.C.R.R. § 54.1 to have the regulations under the Safety in Skiing Code apply to “all skiers,” again without distinction due to the age of the skier. The definitions under these regulations for “skier,” 12 N.Y.C.R.R. § 54.3(h) (“Skier means any person wearing a ski or skis and any person actually on a ski slope or trail located at a ski area, for the purpose of skiing”), or “passenger,” 12 N.Y.C.R.R. § 54.3(d) (“Passenger means a person in or on or being transported by a tramway”), riding a “passenger tramway,” see 12 N.Y.C.R.R. § 54.3(e) (“Passenger [*24]  tramway means a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the Commissioner of Labor pursuant to Section two hundred two-c or eight hundred sixty-seven of the Labor Law [N.Y. Labor Law §§ 202-c, 267]”), also do not create a separate infant category. Although the Court of Appeals refers to the State Legislature either abrogating the infant’s common law right of disaffirmance or conferring upon the infant a recognized right to make binding contracts, Shields, supra, 58 N.Y.2d at 344, 461 N.Y.S.2d at 257, the State Legislature here enacted the code that delegated to the Commissioner of Labor the authority to enact rules and regulations necessary to implement the Code. The Commissioner, by requiring regulations to apply to “all skiers” either abrogated an infant’s common law right of disaffirmance or authorized infant skiers to enter into binding contracts with ski area operators, including the warning and release to authorize the infant skier to engage in the risky activities of skiing and the related, risky activities leading up to skiing.

The Safety in Skiing Code statutory and regulatory scheme including “all skiers” makes releases signed by adults bind infant skiers and removes the [*25]  infants’ common law right to disaffirm the releases executed in their minority. On this basis, plaintiffs’ motion in limine to exclude the Holiday Valley release (Docket No. 56) is denied.

b. Effect of General Obligations Law § 5-326

As an alternative grounds for its decision, the Appellate Division, Fourth Department in Vanderwall, supra, 244 A.D.2d at 982-83, 665 N.Y.S.2d at 493, narrowed the scope of the general provisions for amusement or recreation sites under General Obligations Law § 5-326 to exclude ski resorts from that statute, with those resorts being governed by the Safety in Skiing Code and its Warning to Skiers codified in General Obligations Law § 18-106(1)(a) (Docket No. 65, Defs. Memo. at 7), see also N.Y. Gen. Oblig. Law § 18-107 (“unless otherwise specifically provide in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law”). Part of the Safety in Skiing Code includes use of a ski tow, N.Y. Labor Law § 202-c.

The Holiday Valley registration form (Docket No. 56, Pls. Atty. Decl. Ex. G) signed by LD’s uncle, Dean DiFrancesco, had the adult signer agree that he acknowledged (among other things)

“that I have read and understand the information contained in the brochure for the Holiday Valley Mountain Adventure Children’s Ski and Snowboard Program, and also understand [*26]  and am aware that there are inherent and other risks involved in participating in ski and snowboard lessons, skiing/riding, and use of lifts, which could cause death or serious injury to the registrant(s). This includes use of chairlifts and or tows or boardwalks with or without an instructor.

“[C]hildren may be required to ride chairlifts with other children in the class, ski patrol/hosts, or other persons in the lift line while loading assistance may be given by chairlift attendants. Riding a chairlift can be a hazardous activity for your child(ren). By allowing the registrant(s) to ride a chair lift, you acknowledge the dangers involved and accept any and all risks of injury to the registrant(s). Other risks include, but are not limited to, . . . boarding, riding and disembarking from moving chairlifts, rope tows or boardwalks. With full knowledge of the danger involved, I voluntarily request that the registrant(s) participate in the program. I have read this agreement to the registrant(s) and he/she has acknowledged that he/she understands its contents. On behalf of the registrant(s) and myself, I expressly assume all risks inherent in the sport of skiing and riding and any and all damages, [*27]  injury, illness, or harm which may result directly or indirectly from said risks.”

(Id., paragraphs 5, 6, emphasis added.) This release itself raises factual issues, such as whether Uncle Dean DiFrancesco actually read the release to LD and whether she understood its contents, including the risks stated therein (particularly, the risks in riding and dismounting a chairlift).

The statutory scheme for ski resorts provided in the Safety in Skiing Code provides a more specific regime that the General Obligations Law § 5-326 for other recreational facilities including the basis for the release executed by LD’s uncle. New York public policy carved out ski resorts from the general ban on releases by recreational facility operators. On this alternative ground, plaintiffs’ motion to exclude that release (Docket No. 56) is denied.

B. Defense Motions in Limine, Docket Nos. 53, 58

1. Excluding Evidence of Subsequent Remediation

In their initial motion in limine, defendants seek to exclude evidence of their subsequent remediation in changing signage at the chairlift (Docket No. 53, Defs. Memo. at 2-4). Federal Rule of Evidence 407 precludes admission of evidence of subsequent remedial measures to prove negligence, culpable conduct, or [*28]  a need for a warning (id. at 2). They also contend that evidence as a warning should be excluded under Rule 403 since the probative value is exceeded by its prejudice to them (id.). Plaintiffs counter that this evidence is admissible for impeachment or to contest the feasibility of relocating the sign to a safer location (Docket No. 66, Pls. Memo. at 1-3; see also Docket No. 68, Pls. Reply Memo. at 8), see Fed. R. Evid. 407; Pitasi v. Stratton Corp., 968 F.2d 1558 (2d Cir. 1992). Defendants reply that the impeachment exception to Federal Rule of Evidence 407 should be narrowly read, that it could only be used to avoid the jury being misled (Docket No. 67, Defs. Reply Memo. at 8-9). They conclude that plaintiffs also should be precluded from introducing evidence regarding the red light/green light system used by another ski resort, Holimont, arguing that Holimont installed this system four years after the 2010 incident at issue here (id. at 10; see also Docket No. 53, Defs. Memo. at 3-4; Docket No. 53, Defs. Atty. Decl., Ex. C).

The questions here under Rule 407 are at what point (if ever) may plaintiffs impeach defendants with the change in the sign location, and whether the sign location can be introduced by them as to feasibility. As for impeachment, whether plaintiffs can discuss relocation of the sign will depend [*29]  upon what defense witnesses testify about to the warnings provided on site on the chairlift. Rulings on this point will await trial testimony.

As for feasibility, plaintiffs may introduce sign location and alternative locations if defendants’ witnesses testify as to the feasible location for warning signs.

As to the probative/prejudice balance under Rule 403, evidence inadmissible under Rule 407 “would also likely lead to prejudice and confusion under Rule 403,” Bak v. Metro North R.R., No. 12 Civ. 3220 (TPG), 2015 U.S. Dist. LEXIS 60736, at *7 (S.D.N.Y. May 8, 2015), but remedial evidence may be admitted for rebuttal or impeachment evidence, id., without affecting the probative/prejudice balance of Rule 403.

Finally, Holimont currently uses a red light/green light on its chairlifts to advise skiers when to disembark from the chairlift. But that system was implemented years after this incident (Docket No. 53, Defs. Atty. Decl. Ex. C, Aff. of David Riley ¶¶ 1, 4-8 (Holimont general manager); Docket No. 53, Defs. Memo. 3-4). Holimont general manager David Riley stated that he had not seen this light warning system in United States slopes prior to his tour of Europe in 2014 (Docket No. 53, Defs. Atty. Decl. Ex. C, Riley Aff. ¶ 8). Thus, it was not feasible in 2010 to have such a light warning system and admission of evidence [*30]  of the Holimont lighting system would be prejudicial. Plaintiffs are precluded from introducing evidence of this system as a feasible alternative.

Defendants’ motion in limine (Docket No. 53) on this ground is granted in part, with some issues to be decided at trial upon the proffer or introduction of evidence at issue.

2. Prohibit Plaintiffs’ Liability Expert, Dick Penniman,

Defendants next seek to preclude testimony from plaintiffs’ expert, Dick Penniman, on various subjects. Plaintiffs globally respond that Penniman is a forty-year veteran of the ski industry, performing various duties as a member of ski patrol, lift operator, ski lift maintenance man, and “mountain manager/assistant operations manager” of a number of ski areas (Docket No. 66, Pls. Memo. at 11; Docket No. 66, Pls. Atty. Decl. ¶¶ 27-29, Ex. Q (Penniman curriculum vitae)). Penniman testified as an expert in Whitford v. Mt. Baker Ski Area, Inc., Case No. C11099112RSM, 2012 U.S. Dist. LEXIS 40166 (W.D. Wash. Mar. 23, 2012) (Docket No. 66, Pls. Memo. at 11), opining in that case about the lift attendant’s duties and whether a catch net used at that resort was adequate, id., 2012 U.S. Dist. LEXIS 40166, at *4. Plaintiffs conclude that defense objections to Penniman goes to the weight, not the admissibility, [*31]  of his expert testimony (id. at 10, 11). Plaintiffs do not provide a point-for-point refutation of defense objections to Penniman as an expert.

As noted by the court in Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *3, “the trial court must act as a ‘gatekeeper’ to ensure that proffered expert testimony is both relevant and reliable,” id. citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Where expert testimony is technical rather than purely scientific, “the Court must ensure that it ‘rests on a reliable foundation and is relevant to the task at hand,'” id. (quoting United States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002) (quoting in turn Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993))). As gatekeeper, this Court has to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterize the practice of an expert in the relevant field,” Kumho, supra, 526 U.S. at 152; Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *3-4. The Whitford court, in considering testimony for other specialized knowledge, construed Federal Rule of Evidence 702 liberally, 2012 U.S. Dist. LEXIS 40166, at *4 (citing 9 th Circuit case and Fed. R. Evid. 702 advisory committee note, 2000 amendment, rejection of an expert is the exception rather than the rule).

From Penniman’s curriculum vitae (Docket No. 66, Pls. Atty. Decl. Ex. Q), his expertise is ski patrol (including lift operation and hazard evaluation and mitigation), avalanche safety, and slope preparation. [*32]  He worked for two years supervising lift operations in Chile (id.). Since 1983, Penniman has been a consultant and expert witness; he was qualified as an expert in safe skiing including lift operations and ski instruction (id.). As a threshold matter, Penniman’s expert testimony comes from decades of performing various tasks at several ski resorts and evaluating skiing hazards.

Next, this Court turns to the specific defense objections to Penniman’s expert testimony.

a. Prohibit Penniman from Opining Regarding Relocation of Unload Sign

First, defendants seek to bar Penniman’s opinion about the proper location of signage for unloading or discharging skiers from the chairlift (the “unload/open restraint bar”) and changes in the text of the registration form (Docket No. 53, Defs. Memo. at 4-5, 6-7). As for Penniman opining on sign location, his expertise as a ski lift operator and evaluator of skiing accidents informs his opinions about such things. Penniman lists in his curriculum vitae experience in signage at two ski resorts (Docket No. 66, Pls. Ex. Q), but does not specify if this includes the location of chairlift instructions or warning signage. The bulk of his stated expertise and [*33]  experience involves avalanches, so the signage Penniman is familiar with appears to be for ski trails. In his deposition regarding signage, Penniman testified that applicable New York State regulations when the Creekside lift was erected in 2003 were based on the American National Standards Institute (“ANSI”) standards from 19993 , with a 20064 amendment of ANSI standards expressly calling for sign placement (Docket No. 53, Defs. Ex. F, Penniman EBT Tr. at 23). The 2006 ANSI amendments grandfathered pre-2006 construction to be governed by earlier standards (id., Tr. at 25), but the 2006 standard for sign location called for signs to be ahead of the off load point (id., Tr. at 25-26), while the 1999 standard did not require signage at all (id., Tr. at 24, 39). Penniman noted that one ski resort, White Pine, had its raise bar signs in front of shacks near the unload points (id., Tr. at 28), while at other resorts, Penniman observed these signs either on chairlift towers 20-30 feet before the unload area or as close to the unload area as possible (id., Tr. at 32-34; Docket No. 66, Pls. Ex. P, Tr. at 33-34). Penniman concluded that defendants violated New York State standards for the location [*34]  of Holiday Valley’s signs, violating ANSI 1999 and 2003 standards that signage be ahead of the offload area (Docket No. 53, Defs. Ex. F, Tr. at 37-38). Penniman did not know if New York State inspected the location of these signs (id., Tr. at 40-41). Penniman noted that New York law also required use of the restraint bar on chairlifts; requiring a rider to not use a restraint bar for 50 yards, Penniman opined, would require the rider to violate New York law (id., Tr. at 38).

3 Pls. Ex. 67.

4 Pls. Ex. 68; Defs. Exs. 56, 65.

From review of Penniman’s deposition testimony, the issue is whether placement of the offload warning sign should be at the offload area or in advance of that area (e.g., id., Tr. at 39). Penniman’s experience seems to be from his observations at various resorts, without knowing the written policies for sign placement at those areas. A foundation, therefore, will need to be established that Penniman has sufficient expertise in sign location of chairlift instructions to credit Penniman’s opinion as an expert. Penniman’s testimony also is limited regarding subsequent changes in the sign location, as indicated above. Defendants’ motion in limine (Docket No 53) on these grounds is granted.

b. Prohibit Plaintiffs’ Expert [*35]  Penniman from Opining on Risk of Chairlift Not Being Inherent to Skiing

Next, defendants seek to preclude Penniman’s opinion on the risk of using a chairlift not being inherent to skiing (Docket No. 53, Defs. Memo. at 5-6). Plaintiffs argue that the New York Court of Appeals decision in Trupia, supra, 14 N.Y.3d 392, 901 N.Y.S.2d 127, changed the standards for primary assumption of the risk that coincides with Penniman’s opinion that use of a chairlift is distinct from the sport of skiing (Docket No. 66, Pls. Memo. at 6-7).

There is a preliminary question whether this is an evidentiary issue or a matter requiring an expert opinion at all. New York cases recognize that use of a chairlift is an inherent part of skiing, with distinct risks from the sport of skiing. There are separate, but related, duties of care with operating a chairlift and downhill skiing, Morgan v. Ski Roundtop, Inc., 290 A.D.2d 618, 620, 736 N.Y.S.2d 135, 137 (3d Dep’t 2002) (hereinafter “Ski Roundtop”) (inherent risk in skiing and “some risk of injury inherent in entering, riding and exiting from a chairlift”); see Morgan v. New York State, 90 N.Y.2d 471, 485, 685 N.E.2d 202, 662 N.Y.S.2d 421, 427 (1997); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 1707, 925 N.Y.S.2d 785, 787-88 (4th Dep’t 2011); see also Tone v. Song Mtn. Ski Ctr., 113 A.D.3d 1126, 1127, 977 N.Y.S.2d 857, 858 (4th Dep’t 2014) (claim from chairlift, assumption of risk applied for “athletic activity,” quoting Ski Roundtop, supra, 290 A.D.2d at 620, 736 N.Y.S.2d at 137). As defendants note (Docket No. 67, Defs. Reply Memo. at 4), riding and disembarking a chairlift is inherent in Alpine downhill skiing, [*36]  see also Litz v. Clinton Cent. Sch. Dist., 126 A.D.3d 1306, 5 N.Y.S.3d 636 (4th Dep’t 2015) (assumption of risk for playing hockey applied to injury suffered in rink locker room).

Factually, Trupia involved horseplay on a bannister by a twelve-year-old, rather than engaging in a sporting activity or the steps leading to that activity (with the inherent risks of those steps), supra, 14 N.Y.3d at 393, 396, 901 N.Y.S.2d at 128, 129. Again, this is more akin to the ancillary dangers in the locker room preparing for participation in a sport, e.g., Litz, supra, 126 A.D.3d 1306, 5 N.Y.S.3d 636; but for the sporting activity, a participant would not be injured in the locker room or on the chairlift, each is necessary to prelude to athletic participation. This participant is only in these places to engage in a sport with its own inherent dangers and risks.

As noted in Whitford, supra, 2012 U.S. Dist. LEXIS 40166, at *9, wherein Penniman was accepted as an expert, he “is not required to be an expert in the law; he is only required to be an expert in the subject matter of his testimony,” id. Thus, as a matter of law, there are risks, distinct from those in alpine skiing, to riding a chairlift that are related to those of skiing. This does not require an expert opinion one way or the other. Defense motion in limine on this point (Docket No. 53) is granted.

c. Prohibit Penniman from Opining on the Registration Form

Defendants [*37]  next contend that Penniman lacked any foundation to make an opinion about the registration form used by Holiday Valley (Docket No. 53, Defs. Memo. at 6-7; Docket No. 53, Defs. Atty. Decl. Ex. E, Penniman’s Supp’al Expert Report at 5; see Docket No. 66, Pls. Atty. Decl., Ex. L, at 5). They object to Penniman’s supplemental opinion that noted defendants’ changes to the registration form to require a parent to initial the form at paragraph 6 on chairlift use (Docket No. 53, Defs. Memo. at 4-5; Docket No. 53, Defs. Atty. Decl. Ex. E, at 5; see Docket No. 66, Pls. Atty. Decl., Ex. L, at 5). Plaintiffs do not respond specifically to this objection. Penniman opined that the sentence about a child riding the chairlift without adult supervision was vaguely written (Docket No. 53, Defs. Atty. Decl. Ex. E, at 5; see Docket No. 66, Pls. Atty. Decl. Ex. L, at 5; Docket No. 53, Defs. Memo. at 6).

Again, looking at the actual registration form quoted above (at pages 19-20, supra), participants are warned that children may ride with other children on the chairlift, followed by a warning that riding the chairlift “can be a hazardous activity for your child(ren)” (Docket No. 56, Pls. Atty. Decl. Ex. [*38]  G, paragraph 6). That text implies that children may ride together without an adult. As noted in detail by defendants (Docket No. 53, Defs. Memo. at 7), Penniman lacks expertise in developing ski school policies, drafting registration forms, or have expertise in human factors, engineering, or psychology. Thus, his opinion on the text of the registration form is a little more informed than that of a layperson. Penniman’s opinion in this area is excluded; defendants’ motion in limine (Docket No. 53) on this ground is granted.

As for Penniman’s observation of the post-accident changes in the form (Docket No. 53, Defs. Ex. E, at 5; Docket No. 66, Pls. Ex. L, at 5), this also goes to proof of subsequent remediation and, unlike the impeachment use plaintiffs propose for the relocation of signs or feasibility of change, Penniman’s opinion on the changes in the registration form would only come as part of his direct testimony. Such introduction violates Rule 407 and its prejudice outweighs its probative value under Rule 403. Defendants’ motion in limine (Docket No. 53) as to Penniman’s opinion in this area is granted.

d. Prohibit Penniman from Opining on Human Factor

Defendants next argue that Penniman lacks [*39]  the qualifications to opine on the impact of the human factor in this incident (Docket No. 53, Defs. Memo. at 7-8). Penniman testified that generally an infant should have been accompanied by an adult on a chairlift based on “best practices.” Penniman based these best practices on his experience, observations, and involvement in ski schools and he concludes that a majority of ski areas “are concerned about small children riding up chairs alone, or with other kids without an adult accompanying them. There are some I have observed where they don’t care. But the majority do, and I call that best practices.” (Docket No. 53, Defs. Ex. F, Penniman EBT Tr. at 65-67, 66; Docket No. 66, Pls. Ex. P, excerpts of Penniman EBT Tr. at 65-67, 66.) Penniman testified that, from the age of 8, he had observed ski schools recruit adults to ride up with unaccompanied children, that the “vast majority [of resorts] do,” or so Penniman found (Docket No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Pls. Ex. P, Tr. at 67). He noted that other ski areas do not let small children on chairlifts and “the majority of ski resorts, when it’s not an instruction situation, leave that decision up to the parents” (Docket [*40]  No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Ex. P, Tr. at 67). But Penniman had not investigated the policies of individual ski resorts in New York whether they require adult accompaniment on chairlifts and he could not testify to written policies of ski resorts (Docket No. 53, Defs. Ex. F, Tr. at 67; Docket No. 66, Ex. P, Tr. at 67). Penniman, however, admitted that he was not familiar with Holimont’s policies regarding adult accompaniment or the policies of other Western New York ski resorts on this issue (Docket No. 53, Defs. Ex. F, Tr. at 18-19).

Penniman’s opinion on how small children react on chairlifts may be informed by his experience operating ski lifts, observing at ski resorts, and investigating skiing accidents, but this expertise does not rise to the level that it should be credited as an expert. Similar to the registration form objection, Penniman’s expertise is in ski resort operations and not on how patrons will react. Defendants’ motion in limine (Docket No. 53) on this ground is granted.

e. Prohibit Penniman from Opining about the Operation of a Ski School

Defendants contend that Penniman cannot render an opinion about how to operate a ski school due to lack of qualifications [*41]  on how to operate such a program and not knowing Holiday Valley’s policies (Docket No. 53, Defs. Memo. at 9). Defendants point out that Penniman testified that he was only at level one (of three levels) as a certified ski instructor by the Professional Ski Instructors of America (or “PSIA”) (id.; Docket No. 53, Defs. Ex. F, at 11) and that Penniman was never employed as a ski instructor at any resort where he worked (Docket No. 53, Defs. Ex. F, at 12), but he later stated that he taught skiing informally and once at a resort as a ski patroller (id. at 41-42). Penniman also admitted that he never developed policies for a ski school (Docket No. 53, Defs. Ex. F, at 13). According to plaintiffs’ retort, Penniman performed several different tasks in the ski industry for forty years (Docket No. 66, Pls. Memo. at 10-11), including experiences with ski schools and policies of the White Pine Ski Area related to children riding chairlifts (Docket No. 66, Pls. Atty. Decl. ¶ 29.d., Ex. P, Penniman EBT Tr. at 19-20 (being familiar with policies of resorts regarding children on chairlifts), membership in the PSIA (id., Ex. Q), and as a private ski instructor (id., ¶ 29.e., Ex. P, Penniman EBT Tr. at 42-44). [*42]  He was qualified as an expert on skiing safety including chairlift operations and ski instruction (id.).

Reviewing his experience and stated expertise, Penniman essentially provided private ski lessons, “step[ped] in once at White Pine” ski resort as an instructor while a ski patroller and provided instruction, and instructed ski patrollers (Docket No. 53, Ex. F, at 42-43). He admits to never developing policies for a ski school. Given that the focus of Penniman’s expertise is more on trails (such as avalanches); his experience is only slightly more than a layperson regarding ski school policies. This is despite the fact that Penniman has testified as an expert in Whitford (but cf. Docket No. 66, Pls. Memo. at 11); in that case he testified about the lift attendant’s duties and the adequacy of the chairlift’s safety netting, supra, 2012 U.S. Dist. LEXIS 40166, at *4. Penniman there was not asked to opine on ski school policies (see Docket No. 67, Defs. Reply Memo. at 7).

Thus, defendants’ motion in limine (Docket No. 53) on Penniman rendering his opinion on ski school policies is granted.

f. Prohibit Penniman from Opining on the Custom for Chairlift Signage

Defendants next argue that Penniman should not be allowed to testify about customary [*43]  chairlift signage or sign location (Docket No. 53, Defs. Memo. at 9-10). Again, plaintiffs apparently rely upon Penniman’s forty years of experience operating ski lifts and in the ski industry generally and do not point to specifics as to his expertise regarding the customary location of warning signage (see Docket No. 66, Pls. Atty. Decl. ¶ 29.e., h., Ex. P, Penniman EBT Tr. at 33-34, 68-69). Penniman’s experience as to the location of unloading signage is at three North America ski areas and his 40 years of seeing where signs have been located at those and other ski resorts (Docket No. 66, Pls. Atty. Decl. ¶ 29, e. h.). Again, Penniman lists experience in “signing” at two ski resorts (Docket No. 66, Pls. Ex. Q) without specifying what signage he positioned. Continuing to review Penniman’s stated experience, most of his training focused on ski patrol, avalanches, and ski safety, with attendance at a congress for transportation by wire rope in 1999 and ski lift maintenance. He is affiliated with the International Society of Skiing Safety and the PSIA. These could be sources for Penniman’s opinion about the national or continental safety standards, but a foundation needs to be established [*44]  to confirm this before Penniman’s opinion on this subject is admissible. As noted above, the basis for Penniman’s opinions are from his observation of practices at ski areas and what he believes to be best practices. But he extrapolates this experience to conclude continental practices regarding where these signs are placed and should be placed without additional foundation. Absent such a foundation for a broader opinion, Penniman can only testify to his observations of what he observed at other ski resorts. Defendants’ motion in limine (Docket No. 56) on this issue is granted in part.

3. Exclude Prior and Subsequent Incidents at Holiday Valley

Finally in the initial motion in limine, defendants argue that evidence of prior and subsequent incidents of youths falling from chairlifts at Holiday Valley should not be admitted (Docket No. 53, Defs. Memo. at 10-17; Docket No. 56, sealed Exs. G-S). They argue that introducing all of these incidents would be prejudicial to them, Fed. R. Evid. 403 (Docket No. 53, Defs. Memo. at 15, 11-15). Defendants argue that the Creekside open restraint bar sign was moved to Tower 6 after LD’s accident. Therefore, subsequent incidents would allow plaintiffs, by the [*45]  “back door,” to introduce evidence of subsequent remediation (id. at 16). Further, only one incident (Docket No. 56, Defs. Ex. Q) involved Creekside chairlift, while other post-2010 incidents (id., Defs. Exs. R-S) are not substantially similar to LD’s incident (see Docket No. 53, Defs. Memo. at 16).

Plaintiffs argue that defendants did not cite federal cases on the admissibility of subsequent accidents (Docket No. 66, Pls. Memo. at 14). They claim one subsequent incident was similar (id. at 15; Docket No. 66, Pls. Atty. Decl. ¶ 35, Ex. X) (four-year-old fell from Mardi Gras chairlift on February 26, 2012).

Plaintiffs argue that evidence of prior incidents is admissible under Federal Rule of Evidence 401 to show the existence and notice of the dangerous condition (Docket No. 66, Pls. Memo. at 12). They also claim that proof of subsequent accidents also is admissible to show the existence of the dangerous condition (id.). They reviewed defendants’ reports of similar incidents both before and after LD’s 2010 accident and argue that several of them are admissible since they present examples of youth slightly older than five-year-old LD (ages six to ten years old before the 2010 accident, and a four-year-old after5) opening the restraining [*46]  bar prematurely due to the location of the signs instructing them to open that bar (id. at 12-14; Docket No. 66, Pls. Atty. Decl. ¶ 34, Exs. S, T, U, V, W; ¶ 35, Ex. X). Plaintiffs argue that pictures after 2010 showing relocation of the signs would be admissible only to rebut testimony regarding feasibility, impeaching the defense of culpable conduct (id. at 14). Their claim is that “very young children were needlessly exposed to serious injury by having the ‘open restraint bar’ sign posted too far away from the unload point, and resulting in the restraint bar being lifted at a point when the chairlift is too far above the ground,” hence it was unnecessary for plaintiffs to allege that the chairlift itself was defective (id. at 15); if there was any defect, it was in the location of the signage relative to the height of the chairlift.

5 According to the report for that accident, Feb. 26, 2012, the injured four-year-old was sitting next to his father on the chairlift when he fell, Docket No. 66, Pls. Atty. Decl. ¶ 35.a., Ex. X.

a. Prior Incidents

As for prior incidents at Holiday Valley, they are admissible in this case provided they are “substantially similar” to the 2010 accident on trial here, Bellinger v. Deere & Co., 881 F. Supp. 813, 817 (N.D.N.Y. 1995) (case citations omitted); see Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 336, 493 N.E.2d 920, 502 N.Y.S.2d 696, 701 (1986) (under New York law, similar prior accidents are admissible to show dangerousness of conditions and notice) (Docket No. 53, Defs. Memo. at 11). Defendants note (id.) that New York [*47]  law allows admission of proof of similar incidents to show dangerousness of conditions and notice, Sawyer, supra, 67 N.Y.2d at 336, 502 N.Y.S.2d at 701. The parties differ here on whether the prior incidents are substantially similar to LD’s 2010 accident. As defendants concede that one incident of the eleven prior incidents at Holiday Valley identified by defendants is substantially similar to LD’s situation (id.; see Docket No. 53, Defs. Atty. Decl. Ex. A, Pls.’ Response to Interrogatories, Interrogatory No. 11), that a five-year-old novice skier riding a chairlift unaccompanied by an adult fell between Towers 5 and 6 of the Creekside chairlift. The conceded incident is admissible. The ten other prior incidents (Docket No. 56, Defs. Atty. Exs. G-P) had one or two distinguishing facts that defendants conclude makes them not sufficiently similar to be admissible.

Table 2 below lists the factors defendants argue distinguish these ten prior incidents from LD’s 2010 incident, listing the youths as they were identified by defendants (Docket No. 53, Defs. Memo. at 12-15), cf. Fed. R. Civ. P. 5.2.

[Chart Removed because it would not format for this site]

 6 Injured youth #3 rode with a brother whose name was redacted by defendants, Docket No. 53, Defs. Memo. at 12; Docket No. 56, Ex. I. The report does not give the brother’s age; thus, it is presumed that he is a minor as well.

7 Defendants claim that this incident occurred at Creekside, Docket No. 56, Defs. Ex. H; see Docket No. 66, Pls. Ex. S, but defendants argue that it did not occur at a similar location, Docket No. 53, Defs. Memo. at 12. They distinguish this incident since there is no reference to use of a restraint bar, Docket No. 67, Defs. Reply Memo. at 11. The lift operator’s description of that incident, however, said that the restraint bar was up, Docket No. 56, Ex. H, at 2.

Two of the prior incidents are also distinct due to the greater expertise of the youth skier (#8, Docket No. 53, Defs. Memo. at 14-15; Docket No. 56, Defs. Ex. N) and the age of the skier as compared with LD’s age in 2010 (#10, 16 year old, Docket No. 56, Defs. Ex. P) who was involved in horseplay that led to the fall (Docket No. 53, Defs. Memo. at 15; Docket No. 56, Defs. Ex. P).

Plaintiffs argue that whether these prior incidents were during a ski lesson is immaterial to whether they are similar to LD’s 2010 experience (Docket No. 66, Pls. Memo. at 12). But one factor here is that LD was a relative novice in 2010 and had not ridden on a chairlift unaccompanied by an adult. Also, plaintiffs’ claim is for inadequate supervision by the ski instructor while LD was on the chairlift (Docket No. 1, Compl. ¶ 15); that inadequacy would not occur in prior incidents that were not ski lessons. Therefore, to be sufficiently similar to LD’s circumstances, the prior instances must factor in the experience of the youth involved, shown by defendants from whether the incidents [*49]  occurred during a ski lesson (as was for LD) as well as a review of the incident reports showing whether these youths were identified as being “novices” in the ability and days skied portions of the Holiday Valley incident reports.

To plaintiffs, “the similar circumstances at issue in this case are a very young child falling off a chair lift when the restraint bar was lifted at the point indicated by the ‘open restraint bar’ sign” (Docket No. 66, Pls. Memo. at 13). The prior incidents occurred at various chairlifts at Holiday Valley and the records for each incident does not indicate either where the “open restraint bar” signs were relative to where the youths fell or the distance they were from the appropriate discharge point. At least one youth, #3 (Docket No. 56, Defs. Ex. I) appears to have fallen shortly after boarding the chairlift. Another prior incident occurred at Tower 4 of School House chairlift, well before Towers 5 and 6 of Creekside where LD fell (Incident #5, Docket No. 56, Ex. K). Thus, it is difficult to determine if these falls at other chairlifts were similar to LD’s fall at Creekside.

Plaintiffs next point to five prior instances that they claim were substantially [*50]  similar to LD’s in which the restraint bar was opened prematurely and each child fell (Docket No. 66, Pls. Memo. at 13-14; Incident #2, 4, 6, 7, 9 (Docket No. 56, Defs. Ex. H, J, L, M, O; see also Docket No. 66, Pls. Atty. Decl. Exs. S, T, U, V, W). Defendants reply that plaintiffs’ parsing of these prior incidents focus on singular favorable points and did not meet the burden of establishing that any of these incidents were substantially similar to LD’s 2010 incident (Docket No. 67, Defs. Reply Memo. at 10-11). They again distinguish these five incidents from the 2010 incident (id. at 11-12).

Incidents where the child was riding with a parent or other adult are not substantially similar to LD riding without an adult. The location of the fall also has to be similar to the 2010 Creekside incident; one of the issues is the location of the warning signage and where the restraining bar was lifted or the youth attempted to dismount (see also Docket No. 67, Defs. Reply Memo. at 11, on Incident #4, Docket No. 56, Defs. Ex. J; Docket No. 66, Pls. Ex. T). While not considered by the parties, the age as well as the experience of the youth involved (shown by whether use of the lift was during a ski lesson [*51]  and the identified skiing ability on the Holiday Valley incident reports) is an important factor to determine if a prior incident was substantially similar to LD’s incident.

The next table (Table 3) lists the prior incidents at issue, the defense and plaintiffs’ exhibits identifications, the age of the youth, and their skiing experience (novice or not).

[Chart Removed because it would not format for this site]

Reviewing these prior incidents, the five identified by plaintiffs are not sufficiently similar to LD’s 2010 experience to admit them into evidence. These incidents each had an adult present (#2, 4, 7, 9, Docket No. 56, Defs. Exs. H, J, M, O; Docket No. 66, Pls. Exs. S, T, V, W); or were not during a ski lesson (#2, 4, 6, 7, 9, Docket No. 56, Defs. Exs. H, J, L, M, O; Docket No. 66, Pls. Exs. S, T, U, V, W); or were not at the Creekside chairlift or the youths did not fall at a point similar to where LD fell from the Creekside chairlift [*52]  (id.). But the child in Incident #9 was a six-year-old novice who skied for two days, describing the incident as lifting the safety bar “at prescribed point” (rather than earlier), slipped forward and left the lift (#9, Docket No. 56, Defs. Ex. O; Docket No. 66, Pls. Ex. W). Finally, LD is younger than any of the youth in the prior incidents.

One incident defendants attempt to distinguish, Incident #2, involves a fall by a seven-year-old novice skier (with two to nine days skied) at Creekside where the chairlift stopped thirty feet from the unloading ramp and the lift operator reported that the restraint bar was up (Docket No. 56, Defs. Ex. H; Docket No. 66, Pls. Ex. S). The lift operator went to the child and “waited for parents” prior to ski patrol arriving (Docket No. 56, Defs. Ex. H, at 2; Docket No. 66, Pls. Ex. S, at 3). It is unclear where defendants got the impression that the parents were with that child on the chairlift. This incident is similar to LD’s experience and thus is admissible.

Therefore, Incident #2 (Docket No. 56, Defs. Ex. H; Docket No. 66, Pls. Ex. S), and the incident conceded by defendants to be similar are admissible, but the other prior incidents identified [*53]  by defendants are not similar and are inadmissible. Defendants’ motion in limine (Docket No. 53) as to the admission of evidence of prior incidents substantially similar to LD’s 2010 incident is granted in part, save for the conceded prior incident.

b. Subsequent Incidents

As for subsequent incidents (Docket No. 56, Defs. Exs. Q-S; Docket No. 66, Pls. Ex. X (Feb. 26, 2012, incident), Table 4 lists these incidents, with this Court continuing the incident numbering scheme the parties used for the prior incidents.

[Chart Removed because it would not format for this site]

Plaintiffs argue that one incident, #13 (Docket No. 56, Defs. Ex. S; Docket No. 66, Pls. Ex. X) is similar to LD’s 2010 (Docket No. 66, Pls. Atty. Decl. ¶ 35). There, a four-year-old youth was riding with his father on February 26, 2012, and was on a different chairlift, Mardi Gras, approximately 32 yards from the bull wheel (Docket No. 56, Defs. Ex. S; Docket No. 66, Pls. Ex. X). According to the eight-year-old sister of that youth, that child wiggled in the chairlift seat and fell from it (id.). These differences [*54]  distinguish this incident from LD’s by the later child riding with a parent and no mention of the restraint bar having a role in the incident. This incident is distinct from LD’s.

As for the other two incidents, the youths were older than LD and had more skiing experience. Incident #11 (Docket No. 56, Defs. Ex. Q) is the closest to LD’s 2010 experience; that incident had a 6 1/2 year old youth fall from the Creekside chairlift 62 feet above Tower 5. That youth claimed he “never really got on chair” and the chair stopped and he fell (id. at 1). Witnesses reported that the restraint bar was down as other skiers held the youth until losing their grip (id. at 7). But this incident is sufficiently distinct from what LD experienced to not admit that subsequent incident into evidence.

Thus, the subsequent incidents are inadmissible. Defendants’ motion in limine on this ground (Docket No. 53) is granted as discussed above.

4. Defense Supplemental Motion (Docket No. 58), Exclude Non-Disclosed Expert Testimony

In their supplemental motion in limine (Docket No. 58), defendants next ask that undisclosed plaintiffs’ expert testimony be excluded (id., Defs. Memo. at 2-3). Plaintiffs contend that they did disclose regarding [*55]  future medical expenses; alternatively, they argue that defendants waived any objection to that disclosure by not moving to compel further disclosure (Docket No. 66, Pls. Memo. at 16-18; see also Docket No. 68, Pls. Atty. Reply Decl.¶ 3, Ex. A (supplementing plaintiffs’ discovery). Plaintiffs also argue that defendants overstate the scope of the witnesses defendants claim are plaintiffs’ experts (plaintiff Bryan DiFrancesco, wife Natascha DiFrancesco, and brother Dean DiFrancesco); for example, uncle Dean DiFrancesco would not testify as an expert regarding inadequate supervision but would testify as to his expectation regarding supervision of youth (Docket No. 66, Pls. Atty. Decl. ¶ 36). During oral argument, plaintiffs offered to supplement evidence of LD’s future medical requirements (see Docket No. 69). The parties reserved the right to file a new round of motions in limine regarding this supplementation (as well as other supplemented discovery).

Plaintiffs do not list the DiFrancescos as expert witnesses in their pretrial submissions (see Docket No. 54, Pls. Pretrial Memo. at 14-15), only expressly identifying Penniman as their expert witness (id. at 21). Defendants’ supplemental motion [*56]  in limine (Docket No. 58) on this ground is deemed moot, but subject to renewal upon receipt of the supplemental discovery.

5. LD’s Mother Is Not Qualified as an Expert to Opine on LD’s Future Treatment

Defendants next contend that LD’s mother, Natascha DiFrancesco is not qualified as an expert to render an opinion as to LD’s need for future treatments (Docket No. 58, Defs. Memo. Supp’al Motion at 3), since Mrs. DiFrancesco has degrees in sociology and physical therapy and lacks the medical qualification to opine as to LD’s physical care needs (id. at 3; id., Defs. Atty. Decl. ¶ 3, Ex. C, EBT Tr. Natascha DiFrancesco).

Plaintiffs respond that the parents would testify to medical expenses incurred but health care provider witnesses would testify to the medical necessity for future treatment of LD (Docket No. 66, Pls. Atty. Decl. ¶ 37). They also point out Dr. Bryan and Natascha DiFrancesco are both “health care professionals and have had extensive contact and conversations with the infant plaintiff’s health care providers, an understanding of immediate health care surveillance she requires and the fact that they have been informed that the infant plaintiff is a candidate for require [sic] future [*57]  medical surveillance, treatment, injections, surgery and imaging” (id.). Both parents discussed LD’s care and future medical needs with treating orthopedic surgeon, Dr. Devin Peterson (id. ¶¶ 40, 41).

Plaintiff Bryan and Natascha DiFrancesco can testify to the facts of LD’s past treatment and the recommended follow up, with health care providers testifying as to the necessity of future medical care. Plaintiffs, however, are not holding them out as “experts,” they claim that Natascha DiFrancesco would testify as to the necessity for LD having future medical care (see Docket No. 54, Pls. Trial Memo. at 15). Thus, they cannot invoke Dr. and Mrs. DiFrancesco’s respective experience in health care professions (according to defense moving papers, Natascha DiFrancesco has degrees in occupational therapy and sociology, Docket No. 58, Defs. Atty. Decl. ¶ 8) to bolster their factual testimony as to LD’s care that any other layperson could testify to their injured daughter or son. As refined, defendants’ supplemental motion (Docket No. 58) is granted in part.

6. Physical Therapist Emily Wray Cannot Offer an Expert Opinion on Causation or Diagnosis

Defendants caution that plaintiffs’ physical therapist, [*58]  Emily Wray, is not an expert as to the cause or diagnosis for LD’s injuries (Docket No. 58, Defs. Memo. Supp’al Motion at 3-4). Defendants produced a copy of plaintiff Bryan DiFrancesco’s business website for the Active Body Clinic. This website listed among the staff of that clinic Ms. Wray (Docket No. 58, Defs. Atty. Decl., Ex. B). Plaintiffs, however, offer Ms. Wray’s testimony as to her observations in treating LD in 2015 (Docket No. 66, Pls. Atty. Decl. ¶ 38, Ex. AA; see also Docket No. 54, Pls. Memo. at 23-24). Thus, she is being called as a treating witness rather than an expert. This Court notes that Wray’s employment with Bryan’s Active Body Clinic raises issues of bias but this goes to her ultimate credibility and not to the admissibility of her testimony. Again, as modified to restrict her testimony to her factual observations, defendants’ motion (Docket No. 58) is granted.

7. Plaintiff Father Dr. Bryan DiFrancesco Cannot Opine on Fractures, Surgical Procedures on LD

Finally, defendants move to preclude plaintiff Dr. Bryan DiFrancesco from testifying as an expert on LD’s fractures and surgical procedures (Docket No. 58, Defs. Memo. Supp’al Motion at 4). Defendants contend [*59]  that plaintiff Bryan DiFrancesco is a chiropractor, acupuncturist, and physical therapist and thus lacks the expertise to render an opinion as to LD’s treatment of her fractured femur (id.; Docket No. 58, Defs. Atty. Decl. ¶¶ 3, 8, Ex. B). Defendants point out that plaintiffs have not provided disclosure of the nature and extend of future treatments that LD requires (Docket No. 58, Defs. Memo. Supp’al Motion at 4).

Again, plaintiffs are not holding Dr. Bryan out as an “expert,” his anticipated testimony is regarding LD’s condition before and after the accident, including the necessity for future treatment (Docket No. 54, Pls. Trial Memo. at 14); thus, they cannot invoke his expertise in health care professions as a chiropractor, acupuncturist and physical therapist to bolster factual testimony as to LD’s care that any other parent not in a health care profession could testify for their injured daughter or son. It is unclear in this record the extend of Dr. Bryan DiFrancesco’s medical training that he received in obtaining his chiropractic and physical therapy degrees in Canada. As refined, defendants’ supplemental motion (Docket No. 58) is granted in part.

CONCLUSION

For the reasons stated [*60]  above, plaintiffs’ motion in limine (Docket No. 56) is granted in part, denied in part as specified above. Plaintiffs’ motion to exclude evidence of infant LD’s assumption of the risk is denied, as well as evidence of the release (as being contrary to New York State public policy) is denied but on different grounds; their motion to preclude evidence of LD’s 2015 clavicle injury at Holimont is granted in part with medical records first subject to this Court’s in camera review.

Defendants’ first motion in limine (Docket No. 53) is granted in part, denied in part as provided in detail above. Their supplemental motion in limine (Docket No. 58) is granted in part, denied in part as specified above.

Jury selection and trial is set for Monday, July 17, 2017, commencing at 9:30 am (Docket Nos. 69, 71), with a Final Pretrial Conference to be scheduled and a further Pretrial Order to be separately issued. The Interim Pretrial Conference (Docket Nos. 71, 63), remains set for Wednesday, April 19, 2017, 10:30 am (Docket No. 72).

So Ordered.

/s/ Hugh B. Scott

Hon. Hugh B. Scott

United States Magistrate Judge

Dated: Buffalo, New York

March 20, 2017

 


Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90

Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90

Seth Griffith, Plaintiff-Appellant, v. Jumptime Meridian, LLC, an Idaho Limited Liability Company, Defendant-Respondent.

Docket No. 44133-2016, 2017 Opinion No. 29

SUPREME COURT OF IDAHO

2017 Ida. LEXIS 90

April 10, 2017, Filed

PRIOR HISTORY:  [*1] Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. Hon. Deborah A. Bail, District Judge.

DISPOSITION: The judgment of the district court is affirmed.

COUNSEL: Eric Clark, Clark & Associates, Eagle, argued for appellant.

William Fletcher, Hawley Troxell Ennis & Hawley LLP, Boise, argued for respondent.

JUDGES: EISMANN, Justice. Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.

OPINION BY: EISMANN

OPINION

EISMANN, Justice.

This is an appeal out of Ada County from a judgment dismissing an action brought against JumpTime Meridian, LLC, by Seth Griffith seeking damages for an injury he received while attempting a triple front flip when he was seventeen years of age. We affirm the judgment of the district court.

I.

Factual Background.

On January 11, 2014, seventeen-year-old Seth Griffith (“Plaintiff”) was seriously injured when he attempted a triple front flip into a pit filled with foam blocks (“foam pit”) at an indoor trampoline park owned and operated by JumpTime Meridian, LLC (“JumpTime”). Plaintiff went to the facility with his girlfriend and her younger brother and sister. Plaintiff initially played with the brother on trampolines for about ten or fifteen minutes, and [*2]  then they went to an area where there were runway trampolines. Plaintiff spent about fifteen to twenty minutes doing front flips, back flips, and cartwheels on the runway trampolines, and he taught the brother to do a front flip. He then started showing off to the brother, doing various gymnastic tricks. He jumped up, did a back flip, jumped up, and did another back flip, and a female JumpTime employee, who was monitoring the foam pit area, told him it was pretty cool.

The facility had foam pits, one large (sixteen feet by eighteen feet) and one small (nine feet by sixteen feet). The large foam pit had twin trampolines that were each twelve feet long leading to it, and the small foam pit had a 58-foot-long trampoline runway leading to it.

Plaintiff’s girlfriend and her sister were near the large foam pit. He walked over to where they were and talked to them. While he was there, he jumped into the large foam pit a few times. He then spent about 45 minutes “kind of horsing around on both the runway trampoline and the foam pit and the twin trampolines.” After he did a double front flip into the small foam pit, the monitor came up to him and asked if he had ever done a double before. He [*3]  answered that he had, and she said, “Oh, that was pretty sweet.” As he continued performing double front flips into the small foam pit, he noticed that doing them was easier than it used to be for him. He decided to try a triple front flip. When he attempted it, he did not rotate far enough and landed on his head and neck, suffering a cervical dislocation and fracture, which required a fusion of his C6 and C7 vertebrae.

Plaintiff filed this action alleging that JumpTime negligently caused his injury. He contended that because he was under the age of eighteen, JumpTime had a duty to supervise him. He had been intentionally landing the double front flips on his back in the pit. He testified that he did so “because you don’t want to land on your feet because you can bash your head against your knees.” JumpTime’s written policy manual instructed its employees with respect to the foam pit to “[f]ollow the rules outlined on the wall and continuously enforce it.” There were signs on the walls near the two pits that instructed customers to land on their feet. A large sign painted on the wall next to where the runway trampoline ended at the small foam pit said:

•      Jump feet first into the pit

•      Land on [*4]  your feet and seat

•      No landing on your head or Stomach

Just past the small foam pit was a sign titled “FOAM PIT RULES,” which included the admonition: “WHILE YOU JUMP: DO NOT land on head, neck or belly. NO DIVING; FEET FIRST.” A third sign located on the wall near the large foam pit was titled “FOAM PIT PATRON RESPONSIBILITY CODE,” and it included the admonition, “Jump and land on two feet.” Plaintiff contended that had the attendant told him to land on his feet, he would not have attempted the triple front flip.

JumpTime moved for summary judgment alleging that there was no negligence, based upon the opinion of an expert that industry standards permitted landing a front flip into a foam pit on one’s feet, buttocks, or back, and that there was no evidence of causation. In response, Plaintiff contended that the signs on the wall stating how to land in the foam pit established the standard of care and that because of the attendant’s failure to admonish him for landing incorrectly, he was not discouraged from attempting a more difficult maneuver like a triple front flip. The district court granted JumpTime’s motion for summary judgment, holding that Plaintiff had failed to produce evidence [*5]  of negligence and causation. Plaintiff then timely appealed.

II.

Did the District Court Err in Granting JumpTime’s Motion for Summary Judgment?

When reviewing on appeal the granting of a motion for summary judgment, we apply the same standard used by the trial court in ruling on the motion. Infanger v. City of Salmon, 137 Idaho 45, 46-47, 44 P.3d 1100, 1101-02 (2002). We construe all disputed facts, and draw all reasonable inferences from the record, in favor of the non-moving party. Id. at 47, 44 P.3d at 1102. Summary judgment is appropriate only if the evidence in the record and any admissions show that there is no genuine issue of any material fact regarding the issues raised in the pleadings and that the moving party is entitled to judgment as a matter of law. Id.

The elements of common law negligence have been summarized as (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.” Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980). In this case, there were no facts in the record showing a causal connection between JumpTime’s alleged negligence and Plaintiff’s injury.

The issue of causation is why Plaintiff attempted the triple front flip. He did not tell [*6]  anyone he was going to attempt it, nor is there any evidence indicating that the monitor knew or should have known that he would try a triple front flip. Plaintiff argues on appeal that he is “entitled to the reasonable inference that had JumpTime enforced its rules and interceded when [he] was landing improperly and dangerously on his back, [he] would not have felt emboldened and would never have attempted a triple flip.”

First, there is no evidence that it was dangerous to land on one’s back. Even Plaintiff testified that he believed it was safer because it avoided the risk of hitting his face with his knees.

 

Second, Plaintiff did not testify during his deposition that had the monitor admonished him to land on his feet that he would not have attempted the triple front flip, nor did he testify that the conduct of the monitor was part of that decision. He testified that he decided to attempt the triple front flip because completing the double front flips was easier than previously had been for him, that he was having to come out of his rotation earlier than he previously had to, and that he was confident he was in the air long enough to do a triple front flip, which would be exciting. [*7]

Plaintiff testified that performing the double front flips was easier than it previously had been for him.

    Q. Well, tell me everything. Let’s just move in chronological order about what is happening and work up to the incident. So if you are at that point, then go ahead.

    A. After about 45 minutes of just kind of horsing around on both the runway trampoline and the foam pit and the twin trampolines, I got onto the runway trampoline, plus the foam pit, and I kind of noticed I had been doing doubles easier than what I was normally used to, like I was just either spinning faster or getting higher. It was just easier than what I was accustomed to. So I decided to go for a triple.

He was asked why he attempted the triple front flip, and he did not answer that JumpTime was in any way responsible for that decision. He said that when doing double front flips he had to come out of his rotation earlier than he previously had to and he thought he had enough air to perform a triple front flip.

    Q. Okay. So was the reason that you attempted this triple flip in the small foam pit just because it had a longer runway?

    A. No. I had been doing doubles easier, like I was—I had to break from my rotation earlier [*8]  than I previously would have to. So it was like I was having more time in the air to actually do the flips. So I kind of thought that I would be able to have enough air to do a triple.

He also stated that he was confident he could perform the triple front flip and was excited to try.

    Q. Did you have any concerns about being able to do the triple without hurting yourself?

    A. No. The time when I was about to do it I was pretty confident that I could.

    . . . .

    Q. Were you nervous at all before attempting the triple?

    A. No. I was actually pretty excited about it.

    Q. Why would you say that?

    A. Just because, like I used to be an avid gymnastics person, so doing a new trick, like if I could—like if I added a 360 onto a front flip, I’d get pretty excited. If I did like an aerial for the first time, like I got excited. So new things kind of excited me.

Plaintiff’s testimony does not support an inference that JumpTime was in any way responsible for his decision to try the triple front flip. Therefore, the district court did not err in granting summary judgment to JumpTime based upon the lack of evidence regarding causation.

III.

Is Either Party Entitled to an Award of Attorney Fees on Appeal?

Both parties [*9]  request an award of attorney fees on appeal pursuant to Idaho Code section 12-121..An award of attorney fees under that statute will be awarded to the prevailing party on appeal only when this Court is left with the abiding belief that the entire appeal was brought, pursued, or defended frivolously, unreasonably, or without foundation. McGrew v. McGrew, 139 Idaho 551, 562, 82 P.3d 833, 844 (2003); Benz v. D.L. Evans Bank, 152 Idaho 215, 231-32, 268 P.3d 1167, 1183-84 (2012). Because Plaintiff is not the prevailing party on appeal, he is not entitled to an award of attorney fees under that statute. VanderWal v. Albar, Inc., 154 Idaho 816, 824, 303 P.3d 175, 183 (2013). Although it is a close question, we decline to award attorney fees on appeal to JumpTime because we do not find that this appeal meets the requirements for such an award.

IV.

Conclusion.

We affirm the judgment of the district court, and we award Respondent costs, but not attorney fees, on appeal.

Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.


Connecticut court determines that a release will not bar a negligent claim created by statute.

Statute requires ski area to mark equipment on the slope. The ski area argued the release protected them from negligence claims based on the statute, and the court disagreed.

Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

State: Connecticut, Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville

Plaintiff: Alexandra Laliberte

Defendant: White Water Mountain Resorts

Plaintiff Claims: negligence

Defendant Defenses: Connecticut Skier Safety Act & release

Holding: for the plaintiff

Year: 2004

The plaintiff was skiing as part of a high school varsity ski team. She hit a snow making device which was inadequately identified and placed on the trail according to the plaintiff.

The defendant moved for summary judgment based on the Connecticut Skier Safety Act and a release the plaintiff had signed to participate on the ski team.

The release had been signed when the plaintiff was a minor, however, she did not rescind the release when she became an adult.

As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution.

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

The first argument was whether the Connecticut Skier Safety Act shielded the defendant from liability. The act requires the ski area operator to mark conspicuously the location of snow making equipment.

Sec. 29-211.  (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.

In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to: (1) Conspicuously marking all trail maintenance vehicles and furnishing the vehicles with flashing or rotating lights which shall be operated whenever the vehicles are working or moving within the skiing area; (2) conspicuously marking the entrance to each trail or slope with a symbol, adopted or approved by the National Ski Areas Association, which identifies the relative degree of difficulty of such trail or slope or warns that such trail or slope is closed; (3) ensuring that any lift tower that is located on a trail or slope is padded or otherwise protected; (4) maintaining one or more trail boards, at prominent locations within the ski area, displaying such area’s network of ski trails and slopes, designating each trail or slope in the same manner as provided in subdivision (2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act; (5) in the event maintenance personnel or equipment are being employed on any trail or slope during the hours at which such trail or slope is open to the public, conspicuously posting notice thereof at the entrance to such trail or slope; (6) conspicuously marking trail or slope intersections; (7) ensuring that passenger tramways, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, are equipped with restraint devices; (8) at the entrance of a passenger tramway, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, conspicuously posting instructions regarding the proper use of a restraint device on such passenger tramway and notice that the use of a restraint device on such passenger tramway is required by section 29-213, as amended by this act; and (9) ensuring that any hydrant, snow-making equipment and pipes that are located within the borders of a designated slope, trail or area that is approved and open for skiing by the operator and regularly groomed as part of the operator’s normal maintenance activities are padded or marked by portable fencing or a similar device.

Emphasize (bold) added

The plaintiff’s argued it was not marked. The ski area argued that the snow making device was not located on a ski trail or slope. Consequently, the court held that because there was a factual dispute, this matter had to go to trial.

The next issue was whether the release stopped claims created or based upon the statute. Normally, these claims are called negligence per se claims. (See Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability or Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case for more on Negligence Per Se claims.) Negligence per se claims are negligence claims based on a statute or rule created to protect people. Normally, releases do not work against negligence per se claims. That wording or pleading in describing the claim was not used in this case.

The parties agreed that the release itself was valid. The issue was what the release applied to.

“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.”

Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.

The court first looked at the Connecticut Skier Safety Act and found the act was silent on the effect of a release. The court then reviewed other Connecticut cases and decisions from other states where a release was raised as a defense to a negligence claim based upon a statute. Generally, the court found “… the statute created a public duty which the tenant had no power to extinguish. Private parties cannot “suspend the law by waiver or express consent.” Quoting from another case the court found ““parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.”

The court found two bases for invalidating releases when argued to bar claims like this.

These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member.

Here the court found using a release to avoid liability for a statutory duty would allow defendants to have free reign to ignore the statute.

If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.

The motion for summary judgment was denied and the case set for trial.

So Now What?

This result is probably the result you will find in all cases where the release is raised as a defense to a statutory duty. The only way to avoid this is to have the statute that creates the duty, include a clause that states the release is still valid.

Similar arguments are used by courts when they have determined that a statute that may have statutory duties and also has statutory protections eliminates the use of a release in full. Meaning the statute provided the protection the legislature wanted, that is all you get. Hawaii did this (Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release) and New Mexico in Berlangieri v. Running Elk Corporation, 132 N.M. 332; 2002 NMCA 60; 48, P.3d 70; 2002 N.M. App. 39; 41 N.M. St. B. Bull. 25.

What do you think? Leave a comment.

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Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194

Alexandra Laliberte v. White Water Mountain Resorts

X07CV030083300S

Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville

2004 Conn. Super. LEXIS 2194

August 2, 2004, Decided

August 2, 2004, Filed

Notice: [*1]  This decision is unreported and may be subject to further appellate review. Counsel is cautioned to make an independent determination of the status of this case.

Judges: Sferrazza, J.

Opinion By: Sferrazza

Opinion: Memorandum of Decision

The defendant, White Water Mountain Resorts, Inc., moves for summary judgment as to all counts in this action filed by the plaintiff Suzanne Bull, individually and as next friend of her daughter, Alexandra Laliberte. The plaintiffs’ complaint alleges that the defendant, a ski area operator, negligently failed to mark a snow-making device conspicuously so as to comply with General Statutes § 29-211.

The movant contends that judgment ought to enter in its favor because General Statutes § 29-212 exempts the defendant from liability and because the plaintiffs executed a valid waiver of liability. The plaintiffs argue that a genuine factual dispute exists which puts into doubt the applicability of § 29-212 and that the plaintiffs had no power to waive liability for any statutory obligation imposed by § 29-211.

Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that [*2] no genuine dispute as to material fact exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.

It is undisputed that on January 13, 2003, Alexandra Laliberte sustained serious injury to her left leg while engaged in ski practice, as a member of the Glastonbury High School varsity ski team, while at the defendant’s ski area. The plaintiffs’ complaint avers that this injury was caused when Laliberte struck a snow-making machine which was inadequately identified and which was positioned upon a portion of a ski trail or slope.

On November 14, 2002, the plaintiffs knowingly and voluntarily signed an anticipatory release of liability absolving the defendant from any claims by the plaintiffs resulting from participation in the ski team practices or events at the defendant’s ski facility, even if such “injury is caused by the negligence” of the defendant. It is uncontroverted that, if this waiver is enforceable, it would exonerate the defendant from the liability on the plaintiffs’ claims.

I

The court first addresses the movant’s contention that § 29-212 exempts the defendant from liability. Section 29-212 must be examined in conjunction with [*3] § 29-211 because these related provisions “form a consistent, rational whole.” Jagger v. Mohawk Mountain Ski Area, 269 Conn. 672, 681, 849 A.2d 813 (2004). These statutes were enacted to delineate the respective responsibilities of the skier and the ski area operator. Id., 682. Section 29-212 enumerates a nonexhaustive list of risks inherent in the sport of skiing for which ski area operators bear no responsibility if injury ensues. Id. Section 29-211, on the other hand, imposes specified duties upon ski area operators. Id., 681.

Subsection 29-211(2) obligates the operator to mark conspicuously the location of snow- making devices that are placed on a trail or slope. A review of the pleadings and documents submitted discloses that a genuine factual dispute exists as to whether the particular device which Laliberte struck was sited on a ski trail or slope. Consequently, summary judgment is unavailable on this ground.

II

The enforceability of the preinjury release poses a more difficult question.

“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is [*4] against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.” Fischer v. Rivest, Superior Court, New Britain J.D. Complex Litigation, dn. X05-CV00-509627, 33 Conn. L. Rptr. 119 (August 15, 2002), Aurigemma, J.

As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution. Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.

The statutes regarding skiing and ski area operations, General Statutes §§ 29-211 though 29-214 are silent as to whether waiver of the duties imposed on ski area operators are permitted or forbidden.

In Hyson v. White Water Mountain Resorts, 265 Conn. 636, 829 A.2d 827 (2003), our Supreme Court held that a preinjury waiver [*5] which omitted express reference to negligence was insufficient to absolve the ski area operator, the same defendant as in the present case, from liability for negligence. Id., 643.

The majority explicitly stated that its decision ventured no opinion regarding the viability of an anticipatory release should it include the missing language.

Id., 640 and 643, fn. 11. Despite this disclaimer, the Hyson case, supra, does provide some guidance bearing on the issue before this court because the majority reiterated the proposition that a preinjury release from liability for negligent acts “is scrutinized with particular care.” Id., 642.

The two dissenting justices in Hyson, supra, indicated that such preinjury releases are valid despite the absence of the use of a form of the word negligence expressly. Id., 649. Implicit in the dissenters’ position is that such waiver is possible as to violations of the duties imposed by § 29-211.

While a plausible argument can be made that this implication supports the movant ‘s contention, this Court is reluctant to harvest precedential value on this issue from that dissent [*6] because the precise claim of unenforceability raised in the present case was never raised in Hyson, supra.

In L’Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933), the Supreme Court ruled that where a statute compels a landlord to illuminate a common stairwell, a tenant cannot waive that burden and could, indeed, sue the landlord for injury caused by that statutory violation. Id., 355-56. The Supreme Court determined that the statute created a public duty which the tenant had no power to extinguish. Id. Private parties cannot “suspend the law by waiver or express consent.” Id., 357. Of course, L’Heureux, supra, involved a tenancy and not recreational activity.

A similar case is Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246 (1969). There, another tenant was permitted to sue a landlord based on housing code violations despite a written lease containing a waiver clause. Id., 104. Again, Panaroni v. Johnson, supra, did not involve a recreational activity waiver.

A Connecticut case closer to the facts of the present one is Fedor v. Mauwehu Council, 21 Conn.Sup. 38, 143 A.2d 466 (1958). [*7] The trial court granted a demurrer to a special defense based on a written waiver signed by the injured boy’s father, which waiver purported to release a boy scout camp from liability.

The court stated that “parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.” Id., 39.

On the national level, some jurisdictions invalidate recreational activity releases if the negligent conduct contravenes public policy as embodied in statutorily imposed duties while other jurisdictions recognize the enforceability of such preinjury waivers. See 54 A.L.R.5th 513 (2004), §§ 5[a] and [b].

In McCarthy v. National Association for Stock Car Auto Racing, 48 N.J. 539, 226 A.2d 713 (1967), the New Jersey Supreme Court affirmed a trial court’s invalidation of a preinjury release in a case where the plaintiff was allegedly harmed by the defendants’ failure to comply with a state regulation governing the placement of fuel lines in racing cars. That Court stated that the “prescribed safety requirements may not be contracted away, for if they could be, [*8] the salient protective purposes of the legislation would largely be nullified.” Id. 54. That opinion recognized that such anticipatory releases are enforceable when they relate to strictly private affairs, however the Court remarked that the “situation becomes an entirely different one in the eye of the law when the legislation in question is . . . a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.” Id.

The West Virginia Supreme Court reached a similar result in Murphy v. American River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504 (1991). West Virginia has a statutory scheme regarding the division of responsibility for harm resulting from the risks of whitewater rafting. That scheme immunizes commercial rafting operators from liability for risks inherent in that activity but “imposes in general terms certain statutory duties upon commercial whitewater outfitters.” Id., 317. A rafter suffered injuries when the outfitter ‘s employee attempted to use one raft to dislodge another which was hung up on some rocks. Id., 313-14. [*9] That Court concluded “when a statute imposes a standard of care, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable.” Id., 318. The West Virginia Supreme Court also observed that that state’s skiing statutes were very similar to their whitewater rafting legislation. Id., 317.

These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member. The court finds this reasoning persuasive.

Common-law negligence is a breach of a duty to exercise reasonable care with respect to another when confronting a particularized and individualized set of surrounding circumstances which may never arise again. A party is entitled to contract away the right to hold the releasee responsible for careless conduct peculiar to the releasor’s situation.

On the other hand, statutory negligence [*10] is based on deviation from a legislatively mandated course of conduct which governs a generalized set of circumstances. The statutory rule applies in every case in which those generic circumstances may exist and where the injured party falls within the class the statute was designed to protect. Coughlin v. Peters, 153 Conn. 99, 101, 214 A.2d 127 (1965). The doctrine of statutory negligence applies to create liability regardless of whether the defendant acted with reasonable prudence. Jacobs v. Swift & Co., 141 Conn. 276, 279, 105 A.2d 658 (1954).

If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.

Given our Supreme Court’s reluctance to afford liberal recognition to preinjury waivers and the need to prevent the undermining of statutorily defined duties, the court holds [*11] as a matter of law, that the plaintiffs’ release in this case is unenforceable to defeat the claims of a violation of § 29-211.

The motion for summary judgment is, therefore, denied.

Sferrazza, J.


Wethington v. Swainson, d/b/a/ Pegasus Airsport Center, 2015 U.S. Dist. LEXIS 169145

Wethington v. Swainson, d/b/a/ Pegasus Airsport Center, 2015 U.S. Dist. LEXIS 169145

Holly Wethington and Makenzie Wethington, Plaintiffs, v. Robert Swainson, d/b/a/ Pegasus Airsport Center, Defendant.

Case No. CIV-14-899-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

2015 U.S. Dist. LEXIS 169145

December 18, 2015, Decided

December 18, 2015, Filed

SUBSEQUENT HISTORY: Sanctions allowed by, in part, Sanctions disallowed by, in part Wethington v. Swainson, 2015 U.S. Dist. LEXIS 171126 (W.D. Okla., Dec. 23, 2015)

Motion granted by Wethington v. Swainson, 2016 U.S. Dist. LEXIS 7421 (W.D. Okla., Jan. 22, 2016)

COUNSEL: [*1] For Holly Wethington, individually, Mackenzie Wethington, Plaintiffs: James E Weger, LEAD ATTORNEY, Jones Gotcher & Bogan, Tulsa, OK; Robert E Haslam, Haslam & Gallagher, Fort Worth, TX.

Robert Swainson, doing business as Pegasus Airsport Center, Defendant, Pro se.

Robert Swainson, Third Party Plaintiff, Pro se.

Joseph Wethington, Third Party Defendant, Pro se.

Robert Swainson, Counter Claimant, Pro se.

For Holly Wethington, individually, Counter Defendant: James E Weger, LEAD ATTORNEY, Jones Gotcher & Bogan, Tulsa, OK; Robert E Haslam, Haslam & Gallagher, Fort Worth, TX.

JUDGES: TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

OPINION BY: TIMOTHY D. DEGIUSTI

OPINION

ORDER

The determinative issue before the Court concerns the authority of a parent to bind their minor child to an exculpatory agreement, which functions to preclude a defendant’s liability for negligence, before an injury has even occurred. Holly and Makenzie Wethington, mother and daughter (“Plaintiffs”), bring this action against Defendant Robert Swainson, d/b/a/ Pegasus Airsport Center, for injuries suffered by Makenzie while skydiving.1 Under theories of negligence and breach of contract, Plaintiffs contend Defendant (1) provided inadequate training to [*2] Makenzie in preparation for the parachute jump, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie’s jump, and (4) permitted Makenzie to use a parachute she was ill-prepared to use and which was inappropriate for her skill level. Before the Court is Defendant’s Motion for Summary Judgment [Doc. No. 24], to which Plaintiffs have filed their response in opposition [Doc. No. 30]. The matter is fully briefed and at issue.

1 At the time this action was brought, Makenzie was a minor. She has since become eighteen and will thus be referenced by name.

BACKGROUND

The following facts are undisputed. On January 24, 2014, Makenzie, who was then sixteen years old and accompanied by her parents, went to Defendant to learn how to skydive. As part of the registration process, Makenzie executed a Registration Form and Medical Statement. Near the bottom of the document, Makenzie initialed a disclaimer which read:

I FURTHER UNDERSTAND THAT SKYDIVING AND GLIDING ARE VERY SERIOUS AND HAZARDOUS SPORTS IN WHICH I COULD SUSTAIN SERIOUS AND PERMANENT INJURIES OR EVEN DEATH

Makenzie underwent an instruction course that included [*3] determining the condition of the parachute after deployment, gaining control and resolving any deployment problems and, if necessary, activating her emergency parachute. In connection with her registration and training, Makenzie and her parents both signed and/or initialed an accompanying document entitled “Agreement, Release of Liability and Acknowledgment of Risk” (the Release). The Release contained numerous exculpatory provisions, which stated in pertinent part:

1. RELEASE FROM LIABILITY. I hereby RELEASE AND DISCHARGE [Defendant] from any and all liability claims, demands or causes of action that I may hereafter have for injuries and damages arising out of my participation in parachuting and other aviation activities, including but not limited to LOSSES CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES.

2. COVENANT NOT TO SUE. I further agree that I WILL NOT SUE OR MAKE A CLAIM AGAINST [Defendant] for damages or other losses sustained as a result of my participation in parachuting and other aviation activities.

* * *

5. ACKNOWLEDGMENT OF RISK. I understand and acknowledge that parachuting activities have inherent dangers that no amount of care, caution, instruction or [*4] expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ACKNOWLEDGE ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN PARACHUTING AND OTHER AVIATION ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES, including but not limited to equipment malfunction from whatever cause or inadequate training.

* * *

9. ENFORCEABILITY. I agree that if any portion of this Agreement, Release of Liability and Acknowledgment of risk is found to be unenforceable or against public policy, that only that portion shall fall and all other portions shall remain in full force and effect. . . . I also specifically waive any unenforceability or any public policy argument that I may make or that may be made on behalf of my estate or by anyone who would sue because of injury, damage or death as a result of my participation in parachuting and other aviation activities.

10. LEGAL RIGHTS. It has been explained to me, and I expressly recognize that this Agreement, Release of Liability and Acknowledgment of Risk is a contract pursuant to which I am giving up important legal rights, and it is my intention to do so.

(Emphasis added).

Near the bottom of the form, Makenzie [*5] read and rewrote the following statement: “I hereby certify that I have read this Agreement, Release of Liability and Acknowledgment of Risk, that I fully understand the contents of this contract, that I wish to be bound by its terms, and that I have signed this contract of my own free will.” This statement was signed and dated by Makenzie and initialed by her mother. At the bottom of the Release, under the heading, “RATIFICATION BY PARENT/GUARDIAN if participant is under 18-years-of-age,” both parents attested that they had read the agreement, understood its terms, and agreed to be bound thereby.

Makenzie received four hours of training and instruction. She was assigned a used parachute based on her size and weight. Defendant employed the assistance of Jacob Martinez to act as radio controller. Mr. Martinez’s duty was to help guide the jumpers onto the landing area and it was his first time to assist with the radio. Upon Makenzie’s jump, her chute malfunctioned, causing her to spin with increasing rapidity towards the ground. Makenzie landed at a high speed and impact, causing her to sustain serious injuries.

STANDARD OF DECISION

“Summary judgment is proper if, viewing the evidence in [*6] the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Bonidy v. U.S. Postal Service, 790 F.3d 1121, 1124 (10th Cir. 2015) (citing Peterson v. Martinez, 707 F.3d 1197, 1207 (10th Cir. 2013)). The Court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter asserted, but to determine whether there is a genuine issue for trial. Tolan v. Cotton, U.S. , 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014). An issue is “genuine” if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). An issue of fact is “material” if under the substantive law it is essential to the proper disposition of the claim. Id. Once the moving party has met its burden, the burden shifts to the nonmoving party to present sufficient evidence in specific, factual form to establish a genuine factual dispute. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).

The nonmoving party may not rest upon the mere allegations or denials of its pleadings. Rather, it must go beyond the pleadings and establish, through admissible evidence, there is a genuine issue of material fact that must be resolved by the trier of fact. Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th Cir. 2004). Unsupported conclusory allegations do not create an issue of fact. Finstuen v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).

DISCUSSION

Defendant contends the Release absolves him from all liability [*7] for any injury suffered by Makenzie. Plaintiffs respond that Defendant’s motion should be denied because (1) Makenzie was a minor when she signed the Release, rendering it invalid under Oklahoma law,2 (2) Defendant is clearly liable under the theories asserted, and (3) this Court had a duty to protect Makenzie as a minor.

2 In Oklahoma, a minor is any person under eighteen (18) years of age. 15 Okla. Stat. § 13.

“An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” Arnold Oil Properties LLC v. Schlumberger Tech. Corp., 672 F.3d 1202, 1206-07 (10th Cir. 2012) (citation omitted). While generally enforceable, such clauses are considered “distasteful to the law.” Schmidt v. United States, 1996 OK 29, P 8, 912 P.2d 871, 874 (emphasis in original).3 Exculpatory clauses are enforceable only if they meet the three following criteria:

(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and

(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual [*8] rights vis-a-vis personal safety or private property as to violate public policy.

Schmidt, 912 P.2d at 874. “The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence.” Id. at 874 (citations omitted, emphasis in original); Satellite System, Inc. v. Birch Telecom of Okla., Inc., 2002 OK 61, P 11, 51 P.3d 585, 589 (“Oklahoma has a strong legislative public policy against contracts which attempt ‘to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another.'”) (citing 15 Okla. Stat. § 212).

3 Notwithstanding this admonition, courts should void contract clauses on public-policy grounds “rarely, with great caution and in cases that are free from doubt.” Union Pacific R. Co. v. U.S. ex rel. U.S. Army Corps of Engineers, 591 F.3d 1311, 1321 (10th Cir. 2010) (quoting Shepard v. Farmers Ins. Co., 1983 OK 103, P 3, 678 P.2d 250, 251).

Oklahoma courts, and others, have upheld exculpatory contracts similar to the present Release, i.e., contracts that exculpate the defendant from injuries suffered by plaintiffs while skydiving. See Manning v. Brannon, 1998 OK CIV APP 17, PP 15-17, 956 P.2d 156, 158-59 (exculpatory contract relieving defendant from any liability for injuries to plaintiff from parachuting activities was valid and enforceable); see also Scrivener v. Sky’s the Limit, Inc., 68 F. Supp. 2d 277, 280 (S.D.N.Y. 1999); Paralift, Inc. v. Superior Court, 23 Cal.App.4th 748, 756, 29 Cal.Rptr.2d 177, 181 (1993); Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). This Court, likewise, finds the Release is generally valid on its face.

First, the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused [*9] by Defendant’s negligence, equipment failure, or inadequate instruction. Plaintiffs signed and initialed several clauses containing the headings, RELEASE FROM LIABILITY, COVENANT NOT TO SUE, and ACKNOWLEDGMENT OF RISK. Mrs. Wethington and her husband signed a ratification stating they had read the Release, understood its terms, and agreed to be bound thereby. Second, there is no evidence of unequal bargaining power. “Oklahoma courts consider two factors in determining parties’ relative bargaining power: ‘(1) the importance of the subject matter to the physical or economic wellbeing of the party agreeing to the release, and (2) the amount of free choice that party could have exercised when seeking alternate services.'” Arnold Oil, 672 F.3d at 1208 (quoting Schmidt, 912 P.2d at 874). There is no evidence that skydiving was necessary or important to Plaintiffs’ wellbeing. In fact, when asked why she wanted to skydive, Makenzie answered, “It’s on my bucket list.” Moreover, Plaintiffs do not contend Makenzie had no choice but to agree to be trained by and jump with Defendant as opposed to going elsewhere. Third, as noted, Oklahoma courts have upheld such releases as not against public policy. See Manning, 956 P.2d at 159 (“we find a exculpatory contract in the [*10] context of a high-risk sport such as sky diving not against the public policy of this state.”).

Plaintiffs nevertheless maintain the Release is voidable because Makenzie was a minor when she signed it and her subsequent suit disaffirmed the agreement. It is also true that as a matter of public policy, courts have protected minors from improvident and imprudent contractual commitments by declaring the contract of a minor is voidable at the election of the minor after she attains majority. See 15 Okla. Stat. § 19. “A release is a contract.” Corbett v. Combined Communications Corp., 1982 OK 135, P 5, 654 P.2d 616, 617. Under Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent. Gomes v. Hameed, 2008 OK 3, P 26, 184 P.3d 479, 489 (citing Gage v. Moore, 1948 OK 214, P 8, 200 Okla. 623, 198 P.2d 395, 396).

In this case, however, Makenzie’s parents also knowingly signed the Release on her behalf, ratifying and affirming its exculpatory content, and agreeing to be bound thereby. Nevertheless, Defendant refers this Court to no controlling authority that permits the parent of a minor to, on the minor’s behalf, release or waive the minor’s prospective claim for negligence. The Court is unaware of any such authority, and therefore must predict how the Oklahoma Supreme Court would rule on the question. Ortiz v. Cooper Tire & Rubber Co., No. CIV-13-32-D, 2015 U.S. Dist. LEXIS 41544, 2015 WL 1498713, at *5 (W.D. Okla. Mar. 31, 2015) (“A [*11] federal court sitting in diversity must apply state law as propounded by the forum’s highest court. Absent controlling precedent, the federal court must attempt to predict how the state’s highest court would resolve the issue.”) (quoting Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1180 (10th Cir. 2005)).

Although the cases are split on the issue, it is well-recognized that the majority of state courts considering the issue have held a parent may not release a minor’s prospective claim for negligence. See Fedor v. Mauwehu Council, Boy Scouts of Am., 21 Conn. Supp. 38, 143 A.2d 466, 467-68 (Conn. 1958); Kirton v. Fields, 997 So.2d 349, 356 (Fla. 2008) (pre-injury release executed by parent on behalf of minor is unenforceable against minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 386 (N.J. 2006) (New Jersey public policy prohibits parents of a minor child from releasing a minor child’s potential tort claim arising out of the use of a commercial recreational facility); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. Ct. 1994) (“[I]n the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child’s cause of action merely because of the parental relationship . . . . This rule has also been extended to render ineffective releases or exculpatory agreements for future tortious conduct by other persons where such releases had been signed by parents on [*12] behalf of their minor children.”); Galloway v. State, 790 N.W.2d 252, 256 (Iowa 2010) (public policy precluded enforcement of parent’s pre-injury waiver of her child’s cause of action for injuries caused by negligence); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n. 3 (Me. 1979) (“a parent, or guardian, cannot release the child’s or ward’s, cause of action.”); Childress v. Madison County, 777 S.W.2d 1, 6-7 (Tenn. Ct. App. 1989); Woodman v. Kera, LLC, 280 Mich. App. 125, 760 N.W.2d 641, 655-56 (Mich. Ct. App. 2008) (pre-injury waivers effectuated by parents on behalf of their minor children are not presumptively enforceable); Apicella v. Valley Forge Military Acad. & Junior Coll., 630 F.Supp. 20, 24 (E.D. Penn. 1985) (“Under Pennsylvania law, parents do not possess the authority to release the claims or potential claims of a minor child merely because of the parental relationship.”); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex. App. 1993) (statute which empowered parents to make legal decisions concerning their child did not give parents power to waive child’s cause of action for personal injuries); Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992) (“A parent does not have legal authority to waive a child’s own future cause of action for personal injuries resulting from a third party’s negligence”).4

4 Of the cases enforcing pre-injury releases executed by parents on behalf of minor children, most involve state-enacted legislation permitting such waiver or the minor’s participation in school-run or community-sponsored activities. See, e.g., Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 874 (10th Cir. 2013); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564, 274 Cal. Rptr. 647, 649-50 (1990); BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714, 80 A.3d 345, 362 (Md. 2013); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 746-47 (Mass. 2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (Ohio 1998).

These decisions have invalidated such agreements on the grounds that (1) parents have no [*13] such power, or (2) the agreements violate public policy. The underlying rationale employed by many is that courts, acting in the role as parens patriae, have a duty to protect minors. Oklahoma recognizes its duty to protect minor children. Baby F. v. Oklahoma County District Court, 2015 OK 24, P 23, 348 P.3d 1080, 1088. In Oklahoma, a parent or guardian may not settle a child’s claim without prior court approval. See 30 Okla. Stat. § 4-702 (“A guardian, with the approval of the court exercising jurisdiction in the suit or proceeding, may compromise and settle any claim made by, on behalf of or against the ward in such suit or proceeding.”). As aptly summarized by the Washington Supreme Court in Scott:

Since a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury. In situations where parents are unwilling or unable to provide for a seriously injured child, the child would have no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child’s rights might occur.

Scott, 834 P.2d at 11-12 (emphasis added).

Based on the case law in Oklahoma and other jurisdictions, the Court is led to the conclusion [*14] that (1) Makenzie’s acknowledgment and execution of the Release is of no consequence and does not preclude her claims against Defendant, and (2) the Oklahoma Supreme Court would find that an exculpatory agreement regarding future tortious conduct, signed by parents on behalf of their minor children, is unenforceable. Accordingly, to the extent the Release purports to bar Makenzie’s own cause of action against Defendant, it is voidable. Plaintiffs correctly argue that commencement of this lawsuit constitutes a disaffirmance of the Release (see, e.g., Gage, supra; Ryan v. Morrison, 1913 OK 598, 40 Okla. 49, 135 P. 1049), and the contract is void ab initio. Grissom v. Beidleman, 1912 OK 847, P 8, 35 Okla. 343, 129 P. 853, 857 (“The disaffirmance of a contract made by an infant nullifies it and renders it void ab initio; and the parties are returned to the same condition as if the contract had never been made.”). The ratification signed by Makenzie’s parents is likewise unenforceable as a bar to Makenzie’s claims. The Release, however, is otherwise conspicuous and clear so as to bar the parents’ cause of action based upon injury to their child. Therefore, Mrs. Wethington’s causes of action, individually, are barred.5

5 As noted, exculpatory clauses cannot excuse one for, inter alia, gross negligence. The statutory definition [*15] of gross negligence is “want of slight care and diligence.” 25 Okla. Stat. § 6. Under Oklahoma law, “gross negligence” requires the intentional failure to perform a manifest duty in reckless disregard of consequences or in callous indifference to life, liberty, or property of another. Palace Exploration Co. v. Petroleum Dev. Co., 374 F.3d 951, 954 (10th Cir. 2004). Plaintiffs expressly plead in their Complaint only causes of action for negligence and breach of contract. Moreover, although Plaintiffs’ Complaint seeks punitive damages based on Defendant’s alleged “gross, willful, and intentional acts,” Compl., P 8, Plaintiffs neither argue nor present any evidence indicating Defendant’s actions constituted anything beyond ordinary negligence.

CONCLUSION

Defendant’s Motion for Summary Judgment [Doc. No. 24] is GRANTED IN PART and DENIED IN PART. Defendant’s motion is granted as to Plaintiff Holly Wethington’s claims and denied as to Plaintiff Makenzie Wethington’s claim for negligence. Since the skydiving contract is rendered void ab initio by means of Makenzie’s lawsuit, her breach of contract claim cannot proceed as a matter of law.

IT IS SO ORDERED this 18th day of December, 2015.

/s/ Timothy D. DeGiusti

TIMOTHY D. DeGIUSTI

UNITED STATES DISTRICT JUDGE


Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.

Minor injured in a sky-diving accident is allowed to sue because the release, she and her parents signed are void under Oklahoma law. Parents are not allowed to sue for their claims because of the release.

Wethington v. Swainson, 2015 U.S. Dist. LEXIS 169145

State: Oklahoma, United States District Court for the Western District of Oklahoma

Plaintiff: Holly Wethington and Makenzie Wethington

Defendant: Robert Swainson, d/b/a/ Pegasus Airsport

Plaintiff Claims: (1) provided inadequate training to [*2]  Makenzie in preparation for the parachute jump, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie’s jump, and (4) permitted Makenzie to use a parachute she was ill-prepared to use and which was inappropriate for her skill level

Defendant Defenses: Release

Holding: for the defendant for the claims of the parents, for the plaintiff for her claims

Year: 2015

The minor plaintiff was sixteen years old when she wanted to check another item off her bucket list. She went to the defendant’s sky-diving business along with her parents.

First, the minor plaintiff completed a Registration Form and Medical Statement which included a notice that sky diving was dangerous. The minor plaintiff also signed a release. Her parents also signed the release. The release required the minor plaintiff to write out a statement that she knew she was signing a release and understood the risks. She wrote this out and signed it. The bottom of the release also had a ratification paragraph which the Parent/Guardian was required to sign that stated they understood the risks and released the defendants. Both parents signed this.

In total, a warning in one document, a release signed by all three parents, an additional clause signed by the paragraphs and a written paragraph written and signed by the minor plaintiff is normally far in excess of what a party signs before engaging in recreational activities.

The minor plaintiff then received four houses of training. On her first jump, her parachute malfunctioned, and she hit the ground sustaining injuries.

The defendants filed for a motion for summary judgment based on the release.

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

The court started by looking at the issues surrounding release law in Oklahoma. “An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” Releases are enforceable in Oklahoma but are “distasteful.”

At the same time, releases in Oklahoma should not be voided because of public policy grounds. “Notwithstanding this admonition, courts should void contract clauses on public-policy grounds “rarely, with great caution and in cases that are free from doubt.” Public policy grounds are the normal way releases signed by minors are voided.

Releases in Oklahoma have to meet three criteria to be valid.

(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and

(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.

The court also stated that under Oklahoma law releases cannot work to prevent “liability for intentional, willful or fraudulent acts or gross, wanton negligence.”

After reviewing the release the court found the release was valid.

First, the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction. Plaintiffs signed and initialed several clauses containing the headings, RELEASE FROM LIABILITY, COVENANT NOT TO SUE, and ACKNOWLEDGMENT OF RISK. Mrs. Wethington and her husband signed a ratification stating they had read the Release, understood its terms, and agreed to be bound thereby.

The court then looked at whether there was inequality in the bargaining power of the plaintiff and found none.

Second, there is no evidence of unequal bargaining power. “Oklahoma courts consider two factors in determining parties’ relative bargaining power: ‘(1) the importance of the subject matter to the physical or economic wellbeing of the party agreeing to the release, and (2) the amount of free choice that party could have exercised when seeking alternate services.'” There is no evidence that skydiving was necessary or important to Plaintiffs’ wellbeing. In fact, when asked why she wanted to skydive, Makenzie answered, “It’s on my bucket list.”

The court found the plaintiffs were not bound to sky dive with the defendant; she was free to sky dive with anyone. Therefore, the plaintiff was not under any pressure or requirement to sky dive with the defendant.

The court then looked at Oklahoma law to see if parents could sign away a minor’s right to sue.

It is also true that as a matter of public policy, courts have protected minors from improvident and imprudent contractual commitments by declaring the contract of a minor is voidable at the election of the minor after she attains majority. Under Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.

The court also found that for a claim to be approved for a minor for an injury resulting in a settlement, the court had to approve the settlement.

However, the court found this case was complicated by the fact the minor plaintiff’s parents had also signed the release. “In this case, however, Makenzie’s parents also knowingly signed the Release on her behalf, ratifying and affirming its exculpatory content, and agreeing to be bound thereby.”

The Oklahoma Supreme Court did not rule on the issue. Federal courts hearing cases based on the diversity of the parties dealing with state law issues must apply the law of the state where the lawsuit is based or the law that applies.

…federal court sitting in diversity must apply state law as propounded by the forum’s highest court. Absent controlling precedent, the federal court must attempt to predict how the state’s highest court would resolve the issue.

The next issue is disaffirmance of the contract. A minor must disaffirm a contract after reaching the age of majority or the contract is valid. The plaintiffs argued, and the court agreed that the filing of the lawsuit disaffirmed the release. “Plaintiffs correctly argue that commencement of this lawsuit constitutes a disaffirmance of the Release, and the contract is void ab initio.”

For more on this see Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18. However, this decision was later overturned in Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

The court also examined the issue that the parents signed the release and found it had no bearing on the case. However, the release did stop claims by the parents.

The ratification signed by Makenzie’s parents is, likewise, unenforceable as a bar to Makenzie’s claims. The Release, however, is otherwise conspicuous and clear so as to bar the parents’ cause of action based upon injury to their child.

When a minor is injured, the minor can sue and the parents can sue. Dependent upon the state, the claims of the parents may include those of the minor or may be solely based on the parents’ loss.

The court then ruled that the minor claim was valid and not barred by the release. The parent’s claims, specifically the named plaintiff, the minor plaintiff’s mother, were barred by the release.

Defendant’s motion is granted as to Plaintiff Holly Wethington’s claims and denied as to Plaintiff Makenzie Wethington’s claim for negligence. Since the skydiving contract is rendered void ab initio by means of Makenzie’s lawsuit, her breach of contract claim cannot proceed as a matter of law.

So Now What?

The minor plaintiff can sue, and the mother cannot.

This decision is not controlling in Oklahoma. The Oklahoma Supreme Court could still rule that a parent can sign away a minor’s right to sue.

At the same time, this decision outlines release law in Oklahoma and does a great job. As far as how the Oklahoma Supreme Court will rule, the Federal District Court knows the Supreme Court in the state where they sit better than any other person, and I would vote with the Federal Court.

As in other cases in the majority of states, a parent cannot sign away a minor’s right to sue.  To see the States where a parent can sign away a minor’s right to sue and the decisions deciding that issue see States that allow a parent to sign away a minor’s right to sue.

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Federal Judge holds that North Carolina law supports a release signed by the mother of a minor plaintiff to stop a lawsuit

Still not a decision by the NC Supreme Court which is controlling on this issue, however a very interesting case and a very staunch support of the idea that a parent can sign away a minor’s right to sue.

Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289

State: North Carolina, United States District Court for the Eastern District of North Carolina, Southern Division

Plaintiff: Morgan Kelly, Pamela Kelly, and Terry Kelly

Defendant: United States of America

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2014

A prior decision in this case was written about in North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations which reviewed Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741.

This is a decision by a federal court. Federal courts do not make decisions changing state law. Federal Courts can only apply state law to the facts in front of them. If the law is not settled it may surmise what the law it, however the courts of the state where the federal court sits, in this case North Carolina, are not bound by the law. Other websites have reported that federal courts can change the effect of the law in a state which is not true. That is why the precautionary warning on this decision. The North Carolina Supreme Court can rule on this issue at some future date and say the opposite of what this decision says. So until the issue of whether a parent can sign away a minor’s right to sue is reviewed by a state appellate or Supreme Court in North Carolina, not is set in stone.

A quick review of the facts: the minor plaintiff, age fifteen, was injured during a confidence course (obstacle course?) while attending a ROTC weekend at United States Marine Corps Base Camp Lejeune. The mother of the minor signed a release so the minor could attend the weekend.

There are several new facts which were argued in this phase of the case, and not in the prior decision, which are interesting. Allegedly the release was it was signed, was signed with the parent believing the twin sister was attending the camp. However at the time the release was signed there were no names on the release. The sister did not attend, the plaintiff did and the plaintiff filled in her name on the release. An information packet was sent to all attendee’s high schools which described the confidence course. However neither of the minor’s parents saw the packet.

All aspects of the trip were free for the cadets except they had to pay for their meals at the Camp Lejeune dining facility at a reduced rate and pay for anything the plaintiff purchased at the Post Exchange.

Prior to undertaking the confidence course the minor and other cadets completed two obstacle courses. The actual element the minor was injured on was the “slide for life.” While climbing the slide for life the minor fell suffering injuries.

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

The first issue was whether a parent could sign a release and release the minor’s right to sue. The court found in this decision and in the prior decision a parent could sign away a minor’s right to sue.

It does not appear that North Carolina courts have ruled on whether a liability waiver signed by a parent on behalf of a minor child is enforceable, yet numerous courts in other jurisdictions have upheld pre-injury liability waivers signed by parents on behalf of minors in the context of litigation filed against schools, municipalities, and clubs providing activities for children.

The court then reviewed other state law where the court’s had allowed a parent to sign away a minor’s right to sue. The court in reviewing those decisions found them analogous to these facts and applicable to this case.

… the court continues to find that these cases are analogous to the circumstances here, where the facilities and instruction of the NJROTC program were provided at no expense and students were charged only for personal purchases from the Post Exchange and for meals at discount rate.

The court found numerous reasons within those cases why the courts upheld the releases.

… the public is best served when risks or costs of litigation regarding such programs are minimized.

… public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity.

North Carolina, the law to be applied in this case by the court:

…recognized a public interest in respecting parents’ authority over certain life decisions for their children. North Carolina has recognized a public interest in respecting parents’ authority over certain life decisions for their children.

The court remains persuaded by the analysis of those courts upholding liability waivers signed by parents in the context of litigation against schools, municipalities and clubs, which either implicitly or explicitly found the risk presented by such waivers to be outweighed by interests in providing non-commercial activities and respecting parental authority.

The court also found that this case was not controlled by a public interest argument. The court also found that there was no recognized North Carolina public interest in voiding the release to protect minors over the wishes of the parents. “First, neither the defendant’s status as a government body, nor the volunteer status of a program’s personnel, are controlling factors in the analysis.”

The concluded this analysis and denied a public interest argument in the Federal Tort Claims Act (FTCA).

In turn, JROTC programs promote the community welfare by instilling the values and benefits noted above in the community’s children. Finally, the mere fact that the United States has waived its sovereign immunity through the FTCA does not mean that it should be denied the use of a waiver that other non-governmental volunteer or non-profit organizations could employ. On the contrary, the FTCA only makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.”

The FTCA is the statute that describes how and for what reasons the federal government, including the military can be sued.

The court then looked at the actual release to see if it met the law of North Carolina to be valid. The plaintiff argued there was no meeting of the minds, a basic requirement for a contract, which a release is. This is also referred to as a “mutual mistake.” “However, a unilateral mistake, unaccompanied by fraud, imposition, undue influence or like circumstances is insufficient to avoid a contract.”

Because the mistake, if any, was only a unilateral mistake, it was not enough to void the release. Unilateral mistake meaning only one part to the contract knew about the problem or was affected by the problem.

The plaintiff then argued that because the release was signed by the mother for one daughter who did not go but used by the second daughter who did go, the plaintiff, the release was void. The court found that even if the release was void for this reason, because the plaintiff’s took advantage of the opportunity, which could not be accepted without a release, they had ratified and affirmed the release.

North Carolina courts have held that, when a release is originally invalid or voidable, it may be ratified and affirmed by subsequent acts accepting the benefits.

Similarly, under the North Carolina theory of quasi-estoppel, also known as “estoppel by benefit,” a party who “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.”

The doctrine is grounded “upon a party’s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.”

Since the opportunities of the weekend could not be accepted or taken without a signed release, the plaintiff could not after accepting the benefits argue the release was void.

Here, the benefits of the Liability Waiver for plaintiff Pamela Kelly consisted of her daughter’s participation in the NJROTC orientation program, with the attendant benefits of introducing her to the culture, skills, and values that the NJROTC seeks to impart.

By accepting the benefit of her child’s attendance at the orientation session, knowing that a liability waiver was required for attendance, plaintiff Pamela Kelly cannot now disavow the effect of the instrument she signed that allowed her child to attend.

The next issue the plaintiff argued was the release did not identify the risks in the release. “As an alternative ground for denying summary judgment, plaintiffs argue that the Liability Waiver cannot be enforced because the government did not identify the risks that the form covered.”

The plaintiff’s argued they did not know their daughter would be engaging in the risky behavior and activities that caused her injury.

Consequently, they state they anticipated that plaintiff Morgan Kelly would only be visiting Camp Lejeune to observe equipment and other military activities, and that she would only be performing the same activities that she had performed in the past, such as marching in formations, drills, and “ground-based physical fitness training.

The court found this was not required under the law. Here the contract language was clear and the intention of the release for one party to waive the negligence and any accompanying risks of the other party was evident.

The heart of a contract is the intention of the parties,” which “must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed.” Liability waivers are disfavored under North Carolina law, and strictly construed against the parties seeking to enforce them. However, when the language is clear and unambiguous, construction of the agreement is a matter of law for the court, and the court cannot look beyond the terms of the contract to determine the parties’ intent.

The language was clear and unambiguous in its intent.

As such, the waiver provides ample notice to plaintiffs of the potential for a wide range of activities at the event, not limited in any way to marching, drills, or “ground-based physical fitness training.” Plaintiffs do not allege that they were affirmatively misled as to the nature of the activities that would comprise the event, or that they were prevented from inquiring into the activities or the associated risks.

The next argument was the plaintiff had disaffirmed the release by filing the complaint. “Plaintiffs also argue that summary judgment should be denied because plaintiff Morgan Kelly has disaffirmed it (by filing complaint) and because the Liability.” They buttressed this argument stating the language in the release referred to the plaintiff not a parent. However the court found the plaintiff’s had not provided any legal authority to support their argument.

Yet plaintiffs have not cited any case holding that a form such as that used here, which expressly waives both the claims of the child and her guardians, and which is signed by one of those guardians, cannot be enforced against the guardian who signed it. The court again holds that the Liability Waiver is enforceable to bar the claims of both Morgan and Pamela Kelly.

The next issue was whether the release, signed by the mother and effective against the claims of the mother and daughter also prohibited claims of the father.

The question remains whether the Liability Waiver is effective against the claims of plaintiff Terry Kelly, who did not sign the document, and denies ever seeing it prior to plaintiff Morgan Kelly’s orientation visit.

The court reasoned the release could not be used against the father if he did not know of the release. If you do not know of the contract you cannot be held to the contract even under a quasi-estoppel theory argued earlier in the case.

However the plaintiff’s themselves destroyed this argument. The release had both names of the parents written in by hand. The father in his deposition did not definitively state that the handwriting was not his. The plaintiff’s also argued the thought the release was not an original (which is not a valid evidentiary argument). The court then ordered the plaintiff’s had additional time to visually inspect the document and determine if it was the one they signed.

No additional arguments or support for the argument was made that the release was not the original or not signed by the parents. The court, then found that claim was no longer valid because it did not create a genuine issue concerning the release which is necessary to deny a motion for summary judgment.

Plaintiffs had opportunity to review the original Release Form, and to have it assessed by an expert if deemed necessary. An opponent of summary judgment “must produce more than frivolous assertions, unsupported statements, illusory issues and mere suspicions.”

The court then went back to the quasi-estoppel claim to further foreclose that argument by the plaintiff: “… because the record shows that plaintiff Terry Kelly accepted the benefits of the Release Form as it applied to the orientation visit.” The court further stated:”[A] party will not be allowed to accept benefits which arise from certain terms of a contract and at the same time deny the effect of other terms of the same agreement

The court summed up that argument by stating:

The same principle operates here, where plaintiff Terry Kelly signed a Release Form surrendering claims related to his daughter’s participation in NJROTC training, then allowed his daughter to attend a NJROTC training orientation visit. On the evidence, there is no genuine issue that plaintiff Terry Kelly accepted that plaintiff Morgan Kelly’s “membership in the Naval Junior Reserve Officers Training Corps training,” included the orientation visit. In consideration of this training, including the orientation visit, he released “claims, demands, actions, or causes of action, due to . . . injury.” De-fendant reasonably relied on plaintiff Terry Kelly’s writing, in addition to his acquiescence to his [*35]  daughter’s attendance at the orientation visit. Plaintiff Terry Kelly cannot be allowed to accept the benefits of the Release Form through his daughter’s attendance, while at the same time denying the release that was required as a condition of that attendance.

That eliminated the last claim and argument by the plaintiff and summary judgement was granted.

So Now What?

Although this decision may not be controlling in North Carolina until the North Carolina state courts rule on it, the court effectively argued each point why the release should be valid. On top of that, I do not know if this case is being appealed, which again, may change the outcome.

One point that was argued that I continually argue to do, to save the time and cost of defending a release is to put in the release the risks the plaintiff will be assuming. If the release is thrown out of court, you can get the release in front of the jury to prove the plaintiff assumed the risk of the injury.

This is great legal reasoning on release law. This is a good case to keep handy when you are arguing why a release is valid. Whether your state allows a parent to sign away a minor’s right to sue or not, the legal analysis used here can be used in many different release cases.

What do you think? Leave a comment.

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Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289

Kelly, v. United States of America, 2014 U.S. Dist. LEXIS 135289

Morgan Kelly, Pamela Kelly, and Terry Kelly, Plaintiffs, v. United States of America, Defendant.

NO. 7:10-CV-172-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, SOUTHERN DIVISION

2014 U.S. Dist. LEXIS 135289

September 25, 2014, Decided

September 25, 2014, Filed

PRIOR HISTORY: Kelly v. United States, 809 F. Supp. 2d 429, 2011 U.S. Dist. LEXIS 89741 (E.D.N.C., 2011)

CORE TERMS: orientation, training, summary judgment, public interest, guardian, non-commercial, attend, cadet, attendance, signature, daughter’s, public policy, enforceable, genuine, waive, obstacle, quasi-estoppel, participating, recreational, undersigned, pre-injury, parental, affirmative defense, genuine issue, transportation, municipalities, educational, unambiguous, discovery, workshop

COUNSEL: [*1] For Morgan Kelly, Pamela Kelly, Terry Kelly, Plaintiffs: Steven Michael Stancliff, LEAD ATTORNEY, James L. Chapman , IV, Crenshaw, Ware and Martin, P.L.C., Norfolk, VA.

For United States of America, Defendant: Matthew Lee Fesak, R. A. Renfer , Jr., LEAD ATTORNEYS, U.S. Attorney’s Office, Raleigh, NC.

JUDGES: LOUISE W. FLANAGAN, United States District Judge.

OPINION BY: LOUISE W. FLANAGAN

OPINION

ORDER

This matter comes before the court on defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (DE 93). This matter has been fully briefed, and the issues raised are ripe for review. For the following reasons, the court grants defendant’s motion.

STATEMENT OF THE CASE

The court refers to and incorporates the case history provided in previous orders, including its recent order on defendant’s motion to dismiss plaintiffs’ claims for gross negligence. Kelly v. United States, No. 7:10-CV-172, 2014 U.S. Dist. LEXIS 114376, 2014 WL 4098943 (E.D.N.C. Aug. 18, 2014) (“August 2014 Order”). Pertinent to the instant motion, plaintiffs commenced this action on September 2, 2010, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., seeking damages in excess of ten million dollars ($10,000,000.00) for injuries allegedly suffered by plaintiff Morgan Kelly, daughter of plaintiffs Terry and Pamela Kelly. The [*2] court previously issued an order August 11, 2011, granting in part and denying in part plaintiffs’ motion to strike, in particular allowing defendant to raise the affirmative defense that plaintiff Pamela Kelly had waived plaintiffs’ claims. Kelly v. United States, 809 F. Supp. 2d 429, 437-38 (E.D.N.C. 2011) (“August 2011 Order”).

On November 25, 2013, defendant filed the instant motion for summary judgment, which also included the motion to dismiss plaintiffs’ gross negligence claim. Plaintiffs responded in opposition on February 27, 2014, and defendant replied on March 13, 2014.

Plaintiffs’ memorandum in opposition included a motion pursuant to Federal Rule of Civil Procedure 56(d) for additional discovery regarding the use, allocation and disposition of monies received from Navy Junior Reserve Officer Training Corps (“NJROTC”) cadets in exchange for the cadets’ attendance in the July 2007 orientation visit at issue in this case. The court granted plaintiff’s motion on March 31, 2014, and subsequently issued an order on scheduling directing the parties to complete the additional discovery by May 30, 2014. Plaintiffs were given until June 13, 2014, to file a supplemental brief in opposition to the government’s motion. However, the deadline passed without such brief being filed.

On August [*3] 18, 2014, the court granted defendant’s motion to dismiss. The order noted that it did not address the motion for summary judgment on plaintiffs’ remaining claims. August 2014 Order, 2014 U.S. Dist. LEXIS 114376, 2014 WL 4098943, at *1, n. 1. This motion comes now before the court.

STATEMENT OF FACTS

The facts, viewed in the light most favorable to the nonmoving party, may be summarized as follows:

In July 2007, plaintiff Morgan Kelly, then fifteen (15) years of age, was a cadet in the NJROTC program at her high school. Plaintiff Morgan Kelly’s twin sister, Magan Kelly, also was a NJROTC cadet. The NJROTC program included an orientation visit to United States Marine Corps Base Camp Lejeune (“Camp Lejeune”).

Prior to the orientation visit, plaintiffs received a “Waiver of Liability and Assumption of Risk Agreement.” (“Liability Waiver”) (DE 94-3). The Liability Waiver included the following language:

In consideration of the privilege of participating in an organized event in a training area at Camp Lejeune, North Carolina, and further recognizing the voluntary nature of my participation in this event, I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, [*4] administrators, legal representatives and any other persons on my behalf, any and all rights and claims for damages, demands, and any other actions whatsoever, including those attributable to simple negligence, which I may have against any of the following persons or entities: the United States of America . . . which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me. I FURTHER VERIFY THAT I HAVE FULL KNOWLEDGE OF THE RISKS ASSOCIATED WITH ATTENDING THIS EVENT. I EXPRESSLY, KNOWINGLY, AND VOLUNTARILY ASSUME THE RISKS INVOLVED IN THE PLANNED ACTIVITIES INCLUDING TRANSPORTATION TO AND FROM THE EVENT, AND AGREE TO HOLD THE UNITED STATES HARMLESS FOR ANY RESULTING INJURY. I understand that this assumption of risk agreement shall remain in effect until notice of cancellation is received by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized [*5] event.

(DE 94-3 at 1). (See attached as Addendum A hereto.)

Below this language, the form provided lines for the signature and printed name of the minor participant, along with lines for the signature of a parent or guardian, “on behalf of” the minor. Morgan and Magan’s mother, plaintiff Pamela Kelly, signed the form, believing that she was signing it for Magan. She left the blanks which required Magan’s name for Magan to complete. However, plaintiff Pamela Kelly did not sign a form for her other daughter because plaintiff Morgan Kelly originally planned to attend a sailing trip in Florida at the time of the orientation.

Subsequently, plaintiff Morgan Kelly’s sailing trip was cancelled, and she joined the orientation visit. She signed and printed her name onto the Liability Waiver in the spaces that her mother had left for Magan Kelly. The Liability Waiver, in its unredacted format, includes Magan Kelly’s social security number, but it is unclear how this number appeared on the form or who wrote it. The Liability Waiver does not otherwise mention Magan Kelly. It is unclear whether a separate form was submitted for Magan Kelly or whether she attended the orientation.

While planning the [*6] orientation visit, Operations Specialist Frank Acevedo (“Acevedo”) sent a packet of information to plaintiff Morgan Kelly’s high school, including a list of training activities and a brief description of an obstacle course challenge known as the “Confidence Course.” However, neither plaintiff Pamela Kelly nor plaintiff Terry Kelly received a copy of this information packet prior to the orientation visit, and neither parent otherwise communicated with Acevedo or any other government representative from Camp Lejeune before the orientation visit.

The orientation visit began on July 23, 2007. During the visit, the cadets were allowed to use government facilities at Camp Lejeune at no expense, and were not charged for the instruction they received. Cadets were responsible only for paying for meals eaten at a Camp Lejeune dining facility at a Discount Meal Rate, and for personal purchases made at a Post Exchange.1

1 Although plaintiffs’ memorandum in opposition questioned defendant’s characterization of how the money received from students was used, plaintiffs failed to renew any challenge or provide any support for such a challenge after the court granted their request for additional discovery [*7] on the matter. As such, the court finds that plaintiffs do not object to the government’s description of the collection and use of money from the NJROTC cadets.

On July 27, 2007, plaintiff Morgan Kelly, along with the other cadets, completed two obstacle courses prior to undertaking the series of obstacles known as the “Confidence Course.” Before the cadets completed the Confidence Course, two Marine instructors from the School of Infantry provided preliminary instructions, the content of which is disputed.2 The final obstacle of the Confidence Course, called the “Slide for Life,” was a climbing apparatus. Defendant knew that the Slide for Life posed a substantial risk of death or serious bodily injury if it were not successfully negotiated. However, defendant did not assess plaintiff Morgan Kelly’s physical capabilities before she climbed the Slide for Life. Nor did defendant provide any safety harnesses, restraints, or other protection systems that would prevent her from falling. While attempting to climb the Slide for Life, plaintiff Morgan Kelly fell and suffered injuries.

2 Defendant asserts that the instructors “provided a safety brief and a demonstration of how to navigate each obstacle,” [*8] (Def.’s Mem. in Supp. at 1-2) (DE 94), while plaintiffs assert that Marine instructors provided only a “walk-through” of the course, without safety warnings. (Pls.’s Mem. in Opp. at 4) (DE 101).

COURT’S DISCUSSION

A. Standard of Review 3

3 Plaintiffs’ arguments in opposition to the motion for summary judgment raise several issues addressed by the court in its August 2011 Order on motion to strike. The court considers anew plaintiffs’ arguments under the standard applicable to the instant motion for summary judgment.

Summary judgment is appropriate where an examination of the pleadings, affidavits, and other discovery materials properly before the court demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (holding that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is sufficient evidence for a reasonable jury to find for the non-moving party).

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate [*9] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met its burden, the non-moving party must then “set forth specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250. In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).

B. Analysis

Defendant’s motion for summary judgment rests on its argument that the Liability Waiver bars plaintiffs’ claims. As detailed in the court’s August 2011 Order on plaintiffs’ motion to strike, liability waivers are generally enforceable under North Carolina law.4 See Kelly v. United States, 809 F. Supp. 2d 429, 433 (E.D.N.C. 2011) (citing Hall v. Sinclair Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396 (1955)). Moreover, because plaintiff Morgan Kelly is a minor and has disaffirmed her waiver by filing complaint, her own waiver is unenforceable under North Carolina law. See id. at 434 (citing Baker v. Adidas Am., Inc., 335 F. App’x 356, 359 (4th Cir. 2009); Creech v. Melnik, 147 N.C. App. 471, 475, 556 S.E.2d 587 (2001); Freeman v. Bridger, 49 N.C. 1 (1856)).

4 In actions under the FTCA, “federal courts apply the substantive law of the state in which the act or omission giving rise to the action occurred.” Myrick v. United States, 723 F.2d 1158, 1159 (4th Cir. 1983). Because the alleged act or omission giving rise to the action occurred in North Carolina, [*10] North Carolina law governs the nature and extent of the government’s liability for plaintiffs’ injuries.

It does not appear that North Carolina courts have ruled on whether a liability waiver signed by a parent on behalf of a minor child is enforceable, yet numerous courts in other jurisdictions have upheld pre-injury liability waivers signed by parents on behalf of minors in the context of litigation filed against schools, municipalities, and clubs providing activities for children. See, e.g., Gonzalez v. City of Coral Gables, 871 So. 2d 1067, 1067-68 (Fla. Dist. Ct. App. 2004); Sharon v. City of Newton, 437 Mass. 99, 106-12, 769 N.E.2d 738 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 374, 1998 Ohio 389, 696 N.E.2d 201 (1998); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564-65, 274 Cal. Rptr. 647 (1990). In its August 2011 Order the court held that North Carolina would similarly uphold a pre-injury waiver executed by a parent on behalf of a minor child in the context of the facts alleged here. Kelly, 809 F. Supp. 2d at 437. Now on plaintiffs’ motion for summary judgment, the court continues to find that these cases are analogous to the circumstances here, where the facilities and instruction of the NJROTC program were provided at no expense and students were charged only for personal purchases from the Post Exchange and for meals at discount rate.

Plaintiffs nevertheless argue that the Liability Waiver is contrary to public policy. For support, they point to the Fourth Circuit’s recent decision in McMurray v. United States, 551 F. App’x 651 (4th Cir. 2014). Although contracts [*11] seeking to release a party from liability for negligence generally are enforceable in North Carolina, the public policy exception prohibits a person from contracting to protect himself from “liability for negligence in the performance of a duty of public service, or where a public duty is owed, or public interest is involved, or where public interest requires the performance of a private duty.” McMurray, 551 F. App’x at 653-54 (quoting Hall, 242 N.C. at 710).5

5 Exculpatory clauses or contracts are also not enforceable when the provisions violate a statute, or are gained through inequality of bargaining power. McMurray, 551 F. App’x at 653; Hall, 242 N.C. at 709-10. The August 2011 Order rejected plaintiffs’ arguments that these two factors applied to the Liability Waiver. Kelly, 809 F. Supp. 2d at 434, n. 6. Plaintiffs have not raised those arguments again here.

In McMurray, the plaintiff, a high school guidance counselor, completed a release of liability form in order to attend a workshop for educational professionals hosted by the Marine Corps at its facility on Parris Island, South Carolina. Id. at 652. The document released the government from any injuries arising out of participation in the workshop, including “riding in government-provided transportation (to include transportation to and from the Educator’s Workshop.)” Id. The [*12] plaintiff subsequently was injured when the Marine recruiter who drove her to the workshop ran a red light and collided with another car. Id. Noting the numerous statutes, regulations and cases governing public roads in North Carolina, the court determined that the state had a “strong public-safety interest in careful driving and the observance of all traffic-related rules and regulations.” Id. at 654. The court concluded that allowing the government to be released from the duty to use reasonable care when driving would violate that policy, and accordingly held the release unenforceable under North Carolina law. Id. at 656.

Plaintiffs argue that the Liability Waiver is contrary to an “equally compelling interest,” in this case being, “the obligation of the government to exercise reasonable care for the safety of minor school children participating in a congressionally-sanctioned (and funded) JROTC program.” (Pls.’s Mem. in Opp. at 20). Protecting the safety of minor school children in programs like JROTC (and NJROTC) is undoubtedly a matter of public interest. However, this case also involves a countervailing public interest in facilitating JROTC’s provision of non-commercial services to children on a [*13] voluntary basis without the risks and overwhelming costs of litigation.

The public’s interest in the benefits provided by JROTC programs is embodied in federal statutes and regulations governing these programs’ purpose and administration, which set forth such objectives as instilling in students “the values of citizenship, service to the United States, and personal responsibility and a sense of accomplishment,” 10 U.S.C. § 2031(a)(2), along with imparting other benefits such as good communication skills, an appreciation of physical fitness, and a knowledge of basic military skills. 32 C.F.R. § 542.4. Moreover, North Carolina has demonstrated a public interest in the non-commercial provision of educational or recreational activities, by enacting statutes such as the recreational use statute, N.C. Gen. Stat. § 38A-4, which encourages landowners to allow public use of their land without charge for educational or recreational purposes by limiting their duty of care to that of refraining from willful or wanton infliction of injury.

The cases from other jurisdictions which have upheld liability waivers such as the one at issue here have concluded that the public is best served when risks or costs of litigation regarding such programs are minimized. [*14] See Zivich, 82 Ohio St. 3d at 372 (“[W]e conclude that although [plaintiff], like many children before him, gave up his right to sue for the negligent acts of others, the public as a whole received the benefit of these exculpatory agreements. Because of this agreement, the Club was able to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigation.”); Hohe, 224 Cal. App. 3d at 1564 (“The public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities.”).

Courts have also found that such releases serve the public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity. Sharon, 437 Mass. at 109; Zivich, 82 Ohio St. 3d at 374. Likewise, North Carolina has recognized a public interest in respecting parents’ authority over certain life decisions for their children. See Doe v. Holt, 332 N.C. 90, 97, 418 S.E.2d 511 (1992) (“[R]easonable parental decisions concerning children should [not] be reviewed in the courts of this state. Such decisions [*15] make up the essence of parental discretion, discretion which allows parents to shape the views, beliefs and values their children carry with them into adulthood. These decisions are for the parents to make, and will be protected as such.”).

The court remains persuaded by the analysis of those courts upholding liability waivers signed by parents in the context of litigation against schools, municipalities and clubs, which either implicitly or explicitly found the risk presented by such waivers to be outweighed by interests in providing non-commercial activities and respecting parental authority. See Sharon, 437 Mass. at 105 (“In weighing and analyzing [plaintiff’s] public policy arguments, we must also consider other important public policies of the Commonwealth implicated in the resolution of this issue . . . .); Zivich, 82 Ohio St. 3d at 370-71 (“[T]he proper focus is not whether the release violates public policy but rather that public policy itself justifies the enforcement of this agreement.”).

Plaintiffs’ reliance on McMurray is misplaced. The public interest considered in that case, careful driving and observance of traffic rules and regulations, is not at issue here. Nor did that case address whether any contrary public interest was at [*16] stake which might justify the waiver.

Plaintiffs argue that other cases upholding liability waivers signed by parents on behalf of their children are not applicable in this case, because the claims here are directed against the United States and because the JROTC is not a community-based or volunteer-run activity. They note that the officials conducting the orientation visit acted as paid servants of the United States. They argue that the economic considerations at issue in cases from other jurisdictions are not applicable here, where the United States government is self-insured and has waived its immunity. However, none of these arguments are persuasive.

First, neither the defendant’s status as a government body, nor the volunteer status of a program’s personnel, are controlling factors in the analysis. In Sharon, the court upheld a liability waiver in the context of a suit against the city government for a cheerleading program coached by a public school employee, not a volunteer. Sharon, 437 Mass. at 100. Furthermore, the JROTC program is community-based, in that schools must apply for a unit, 10 U.S.C. § 2031(a)(1), and may decide to eliminate the program from their curriculum. See Esquivel v. San Francisco Unified Sch. Dist., 630 F. Supp. 2d 1055 (N.D. Cal. 2008). In this way, JROTC programs are run in cooperation [*17] with the community, and rely on the community for support. In turn, JROTC programs promote the community welfare by instilling the values and benefits noted above in the community’s children. Finally, the mere fact that the United States has waived its sovereign immunity through the FTCA does not mean that it should be denied the use of a waiver that other non-governmental volunteer or non-profit organizations could employ. On the contrary, the FTCA only makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.

It is clear that the July 2007 NJROTC orientation program was offered with a noncommercial purpose, and that students attended voluntarily. Because a liability waiver signed by a parent would be enforceable by a private person offering a non-commercial, voluntary activity of this nature, the United States should also be able to use a parent-signed liability waiver for the noncommercial, voluntary NJROTC orientation visit. See Sharon, 437 Mass. at 111-12 (holding that Massachusetts Tort Claims Act (“MTCA”) would not prevent municipalities from using liability waivers as a precondition for participation in voluntary activities that they [*18] sponsored, because the MTCA gave such municipalities the same defenses as private parties in tort claims).

Aside from their public policy argument, plaintiffs contend that advance court approval is necessary for a parent to extinguish a minor’s personal injury claim. However, their argument is little more than an abbreviated version of their previous argument supporting their motion to strike. The cases they cite do not address the specific circumstances here, of a pre-injury liability waiver in the context of a non-commercial activity provided to children on a voluntary basis. For instance, plaintiffs quote from Justice White’s concurring opinion in International Union v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991), which recognized that “the general rule is that parents cannot waive causes of action on behalf of their children . . . .” (Pls’. Mem. in Opp. at 21) (quoting Int’l Union, 499 U.S. at 213-14.). The context of this quote was the concurring opinion’s speculation as to a potential justification for an employer’s fetal-protection policy, as a means of avoiding claims brought by children for injuries caused by torts committed prior to conception. Int’l Union, 499 U.S. at 212-14. This is far different than a pre-injury waiver for a non-commercial activity provided to children on a voluntary basis, where [*19] the activity does not generate its own profits and the benefits of the waiver extend to the entire community. Moreover, as the quote itself shows, the rule against parental waivers is only “general.” Id. at 213.

Plaintiffs also cite to the North Carolina cases of Sell v. Hotchkiss, 264 N.C. 185, 191, 141 S.E.2d 259 (N.C. 1965) and Creech, 147 N.C. App. at 475, neither of which involved non-commercial, voluntary activities like the NJROTC program. Moreover, both of these cases involved post-injury liability waivers. Concerns underlying courts’ reluctance to allow parents to dispose of childrens’ existing claims, such as the concern that the hardships posed by caring for an injured child will lead the parents to act for their own financial interest, or that the parents will be more vulnerable to fraud or coercion in such circumstances, are mitigated in the pre-injury release context. See Zivich, 82 Ohio St. 3d at 373. The cases from other jurisdictions noted above, where liability waivers signed by parents were upheld, did not require prior court approval for those waivers. E.g. Gonzalez, 871 So. 2d at 1067-68; Sharon, 437 Mass. at 106-12; Zivich, 82 Ohio St. 3d at 374; Hohe, 224 Cal. App. 3d at 1564-65. Further, as a practical matter, requiring prior court approval would seriously encumber the process for participation in non-commercial, educational activities such as the NJROTC program. Such prior approval is not required.

Having [*20] affirmed that a liability waiver is not unenforceable in the abstract, analysis turns to the particular agreement itself. First, plaintiffs argue that this Liability Waiver should not be enforced because the parties did not reach a “meeting of the minds,” alleging that plaintiff Pamela Kelly believed she was signing the form for plaintiff Morgan Kelly’s twin sister, Magan. A release from liability is subject to avoidance by showing that its execution resulted from mutual mistake. George v. McClure, 266 F. Supp. 2d 413, 418 (M.D.N.C. 2001); see also Marriott Fin. Servs., Inc. v. Capitol Funds, Inc., 288 N.C. 122, 136, 217 S.E.2d 551 (1975). However, a unilateral mistake, unaccompanied by fraud, imposition, undue influence or like circumstances is insufficient to avoid a contract. Marriott Fin. Servs., 288 N.C. at 136. Plaintiffs do not argue that defendant mistakenly believed that the Liability Waiver, to which plaintiff Morgan Kelly admittedly signed her own name, was intended to cover Magan Kelly. Nor do they argue that the government acted in a fraudulent manner or that other like circumstances were present. They have shown no more than a unilateral mistake.

In addition, plaintiff Pamela Kelly cannot avoid the contract because she subsequently allowed plaintiff Morgan Kelly to attend the orientation session, knowing that a liability waiver was required. See (DE 94-3 [*21] at 1) (noting that those who failed to sign the waiver would “not be permitted to attend the organized event”). North Carolina courts have held that, when a release is originally invalid or voidable, it may be ratified and affirmed by subsequent acts accepting the benefits. Presnell v. Liner, 218 N.C. 152, 154, 10 S.E.2d 639 (1940); see also VF Jeanswear Ltd. P’ship v. Molina, 320 F. Supp. 2d 412, 422 (M.D.N.C. 2004). Similarly, under the North Carolina theory of quasi-estoppel, also known as “estoppel by benefit,” a party who “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 18, 591 S.E.2d 870 (2004). The doctrine is grounded “upon a party’s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.” Godley v. Pitt Cnty., 306 N.C. 357, 361-62, 293 S.E.2d 167 (1982).6

6 The court notes that defendant did not raise the defense of estoppel in its answer. Generally, estoppel is an affirmative defense that should be raised in the pleadings under Federal Rule of Civil Procedure 8(c). Fed. R. Civ. P. 8(c); Simmons v. Justice, 196 F.R.D. 296, 298 (W.D.N.C. 2000). However, “[I]f an affirmative defense is raised in a manner that does not result in unfair surprise to the opposing party, failure to comply with Rule 8(c) will not result in waiver of the defense.” Simmons, 196 F.R.D. at 298 (quoting United States v. Cook, No. 94-1938, 1995 U.S. App. LEXIS 24342, 1995 WL 508888 (4th Cir. Aug. 29, 1995)). The requirement of pleading [*22] an affirmative defense may be waived if evidence of the defense is admitted into the record without objection. Caterpillar Overseas, S.A. v. Marine Transp. Inc., 900 F.2d 714, 725, n. 7 (4th Cir. 1990). “Courts have been more lenient in the context of motions for summary judgment.” Grunley Walsh U.S., LLC v. Raap, No. 1:08-CV-446, 2009 U.S. Dist. LEXIS 38609, 2009 WL 1298244, at *5 (E.D. Va. May 6, 2009). The defense of quasi-estoppel was raised in defendant’s memorandum supporting summary judgment, and plaintiffs did not object to the defense in their memorandum in opposition. In this instance, no unfair surprise exists and defendant may assert this defense.

Zivich provides a helpful illustration of what constitutes “acceptance” of the benefits of a liability waiver in the context of non-commercial, voluntary recreational activities. Zivich, 82 Ohio St.3d at 375. There, the court held that a mother’s execution of a release would bar the claims of her husband for their son’s soccer practice injury. Id. The court noted that the father “was the parent who was at the practice field” on the evening of that the injury occurred. It held that his “conduct convey[ed] an intention to enjoy the benefits of his wife’s agreement and be bound by it.” Id.

Here, the benefits of the Liability Waiver for plaintiff Pamela Kelly consisted of her daughter’s participation in the NJROTC orientation program, [*23] with the attendant benefits of introducing her to the culture, skills, and values that the NJROTC seeks to impart. By accepting the benefit of her child’s attendance at the orientation session, knowing that a liability waiver was required for attendance, plaintiff Pamela Kelly cannot now disavow the effect of the instrument she signed that allowed her child to attend.

As an alternative ground for denying summary judgment, plaintiffs argue that the Liability Waiver cannot be enforced because the government did not identify the risks that the form covered. Plaintiffs Pamela and Terry Kelly both allege that they never received any information concerning the risks of injury associated with plaintiff Morgan Kelly’s use of the obstacle course. (P. Kelly Decl. ¶¶ 6-11; T. Kelly Decl. ¶¶ 6-11). Consequently, they state they anticipated that plaintiff Morgan Kelly would only be visiting Camp Lejeune to observe equipment and other military activities, and that she would only be performing the same activities that she had performed in the past, such as marching in formations, drills, and “ground-based physical fitness training.” (P. Kelly Decl., ¶ 10; T. Kelly Decl., ¶ 10.)

As a contract, the Liability [*24] Waiver is subject to the recognized rules of contract construction. Adder v. Holman & Moody, 288 N.C. 484, 492, 219 S.E.2d 190 (1975). “The heart of a contract is the intention of the parties,” which “must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed.” Id. Liability waivers are disfavored under North Carolina law, and strictly construed against the parties seeking to enforce them. Hall, 242 N.C. at 709. However, when the language is clear and unambiguous, construction of the agreement is a matter of law for the court, and the court cannot look beyond the terms of the contract to determine the parties’ intent. Root v. Allstate Ins. Co., 272 N.C. 580, 583, 158 S.E.2d 829 (1968).

In an analogous case, Waggoner v. Nags Head Water Sports, Inc., No. 97-1394, 1998 U.S. App. LEXIS 6792, 1998 WL 163811 (4th Cir. April 6, 1998), the plaintiff rented a jet ski from the defendant, signing a rental agreement in which she “assume[d] all risk of accident or damages to my person . . . which may be incurred from or be connected in any manner with my use, operation or rental of the craft checked above.” 1998 U.S. App. LEXIS 6792, [WL] at *1. Plaintiff alleged that she did not understand that the form allowed defendant to escape liability for negligence. Id. Nevertheless, the court held that the clear and unambiguous language of the clause would bar her claim. 1998 U.S. App. LEXIS 6792, [WL] at *3-4.

Here, the Liability Waiver states [*25] in clear and unambiguous language that it is made “[i]n consideration of the privilege of participating in an organized event in a training area at Camp Lejeune,” and that it serves to waive “any and all rights and claims . . . including those attributable to simple negligence . . . which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me.” (DE 94-3).

As such, the waiver provides ample notice to plaintiffs of the potential for a wide range of activities at the event, not limited in any way to marching, drills, or “ground-based physical fitness training.” Plaintiffs do not allege that they were affirmatively misled as to the nature of the activities that would comprise the event, or that they were prevented from inquiring into the activities or the associated risks. They have not provided any reason for the court to look beyond the language clearly and unambiguously covering the circumstances of plaintiff Morgan Kelly’s injury. See Root, 272 N.C. at 583; Waggoner, 1998 U.S. App. LEXIS 6792, 1998 WL 163811 at *3-4; see also Kondrad v. Bismarck Park Dist., 2003 ND 4, 655 N.W. 2d 411, 413-14 (N.D. 2003) (Waiver language relinquishing [*26] all claims for injuries that would occur “on account of my participation of [sic] my child/ward in this program” exonerated park district from liability, even though child’s accident occurred during activity that was not “associated with the program;” language of waiver and release was “clear and unambiguous,” and “not limited only to injuries incurred while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.”).

Plaintiffs also argue that summary judgment should be denied because plaintiff Morgan Kelly has disaffirmed it (by filing complaint) and because the Liability Waiver does not include express language waiving plaintiff Pamela Kelly’s claims on behalf of herself and her child. As noted above, the Liability Waiver refers to “my participation” in the “organized event” and states “I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized event.” (DE 94-3, at 1). This issue, too, was addressed in the court’s order on plaintiffs’ motion to strike. Kelly, 809 F. Supp. 2d at 434-37. There, the court held that, despite plaintiff Morgan Kelly’s disaffirmation of the Liability [*27] Waiver, the document was nevertheless enforceable as signed by her parent. Id. Although the language of the Liability Waiver was written from plaintiff Morgan Kelly’s perspective, its plain language nevertheless stated that “I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, legal representatives and any other persons on my behalf . . . .” Id. at 438, n. 8.

Plaintiffs cite cases from other jurisdictions enforcing liability waivers signed by parents in which the waiver was tailored from the perspective of the signing parent. Hamill v. Cheley Colo. Camps, Inc., 262 P. 3d 945, 948 (Colo. App. 2011) (“I, on behalf of myself and my child, hereby release . . .”); Sharon, 437 Mass. at 100-01 (“[I] the undersigned [father of] . . . a minor, do hereby consent to [her] participation in voluntary athletic programs and do forever RELEASE . . . all claims or right of action for damages which said minor has or hereafter may acquire.”). Yet plaintiffs have not cited any case holding that a form such as that used here, which expressly waives both the claims of the child and her guardians, and which is signed by one of those guardians, cannot be enforced against the guardian who signed it. The court again holds that the Liability [*28] Waiver is enforceable to bar the claims of both Morgan and Pamela Kelly.

The question remains whether the Liability Waiver is effective against the claims of plaintiff Terry Kelly, who did not sign the document, and denies ever seeing it prior to plaintiff Morgan Kelly’s orientation visit. (T. Kelly Decl. ¶ 14). Defendant nevertheless argues that plaintiff Terry Kelly’s claims should also be barred, asserting the doctrine of quasi-estoppel described above. As noted above, quasi-estoppel is applied when a party “accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.” Whitacre P’ship, 358 N.C. at 18. The doctrine faces problems in application to the Liability Waiver, however, where defendant has not directed the court to evidence that plaintiff Terry Kelly knew of the Liability Waiver or its terms.

However, it is not necessary to decide whether plaintiff Pamela Kelly’s signature could bind her husband under these circumstances, because defendant produced a document referred to as the “Naval Junior Reserve Officers Training Corps (NJROTC) Standard Release Form.” (DE 94-4) (“Release Form”) [*29] (See Attached as Addendum B hereto). Page 2 of the Release Form, dated July 13, 2007, provides the following:

I, Terry A Kelly, being the legal parent/guardian of Morgan Kelly, a member of the Naval Junior Reserve Officers Training Corps, in consideration of the continuance of his/her membership in the Naval Junior Reserve Officers Training Corps training, do hereby release from any and all claims, demands, actions, or causes of action, due to death, injury, or illness, the government of the United States and all its officers, representatives, and agents acting officially and also the local, regional, and national Navy Officials of the United States.

(DE 94-4 at 2).

In the paragraph quoted above, the names of plaintiffs Terry and Morgan Kelly are written by hand. Plaintiff Terry Kelly’s declaration provides that page 2 “appears to contains [sic] my handwriting, but I would have to see the original to be certain.” (T. Kelly Decl. at ¶ 16).

Plaintiffs Terry and Pamela Kelly have attempted to challenge the Release Form, stating that they “do not believe that Document No. 94-4 is a genuine document.” In particular, they note that the front page, referenced as page 2 (the certification is appended [*30] as the first page of this filing), is identified as standard form “CNET 5800-4 (Rev. 1-00)” while the final page of the document, which includes a privacy act notification under which plaintiff Pamela Kelly’s name is signed, is identified as “CNET – General 5800/4 (REV. 1-95).” (DE 94-4 at 3; T. Kelly Decl. at ¶ 16; P. Kelly Decl. at ¶ 16). Like her husband, plaintiff Pamela Kelly declares that the writing on page 3 “looks like my signature, but I would need to see the original to be certain.” (P. Kelly Decl. at ¶ 16). She states that she does “not know when Page 3 of 3 was signed or for what purpose.” (Id.).

On April 27, 2011, the court amended its case management order to permit plaintiffs

to have until May 1, 2011, at their option, to visually inspect any original release and/or waiver document or documents relied upon by defendant at defendant’s counsel’s office. This deadline is without prejudice to plaintiffs’ right to have such document or documents examined by experts at a later date, if they deem necessary.

(April 27, 2011, order, p.1, DE 19).

It appears plaintiffs reviewed the Liability Waiver at defendant’s counsel’s office, but not the Release Form. (T. Kelly Decl. at ¶ 15; [*31] P. Kelly Decl. at ¶ 15). No separate request to review was made.

Plaintiffs’ arguments are insufficient to create a genuine issue concerning the Release Form, which is accompanied by a Certificate of Authenticity executed by the Compliance Officer of plaintiff Morgan Kelly’s school district, and notarized by a notary public. (DE 94-4 at 1). “Unsupported speculation . . . is not sufficient to defeat a summary judgment motion.” Ash v. UPS, 800 F.2d 409, 411-12 (4th Cir. 1986)). Plaintiffs had opportunity to review the original Release Form, and to have it assessed by an expert if deemed necessary. An opponent of summary judgment “must produce more than frivolous assertions, unsupported statements, illusory issues and mere suspicions.” Fed. Deposit Ins. Corp. v. Rodenberg, 571 F. Supp. 455, 457 (D. Md. 1983); see also 10A Wright, Miller & Kane, Fed. Practice and Procedure: Civil 3d § 2727 at 510-12 (1998) (“Neither frivolous assertions nor mere suspicions will suffice to justify a denial of summary judgment.”). It is little more than speculation to argue that the Release Form is not genuine, based merely on minor distinctions in form designations between pages. Similarly, plaintiffs’ allegations that they would “have to see the original” to be sure of their signatures amount to nothing more than mere suspicions, [*32] and they had this opportunity. Furthermore, neither Terry nor Pamela Kelly expressly denies seeing or writing on the pages where their names appear. This cannot create a genuine issue for summary judgment.7

7 To the extent plaintiffs’ challenge is an attack on the document’s authentication under Federal Rules of Evidence 901 and 902, it still fails to create a genuine issue of material fact. A party may show the existence of a genuine dispute of material fact by objecting “that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). However, the Certificate of Authenticity signed by the school district’s Compliance Officer satisfies the court that this document could be made admissible in evidence at trial.

The document therefore shows plaintiff Terry Kelly’s acceptance of a transaction whereby his claims were released “in consideration of” plaintiff Morgan Kelly’s continued participation in NJROTC training activities. The Release Form refers to “any and all claims.” In Waggoner, the court held that “the term ‘all claims’ must doubtless include a claim for negligence.” Waggoner, 1998 U.S. App. LEXIS 6792, 1998 WL 163811, at *4. See also Young v. Prancing Horse, Inc., No. COA04-727, 2005 N.C. App. LEXIS 1108, 2005 WL 1331065, at *2 (N.C. App. June 7, 2005) (“[W]e cannot agree with plaintiff [*33] that the absence of the word ‘negligence’ makes the release inoperable to bar this claim . . . . With all due regard to the severity of the injuries suffered by plaintiff, they are of the type contemplated and intended by this release.”).

Even if the Release Form failed to refer to the orientation visit in sufficiently specific terms, quasi-estoppel must operate to bar plaintiff Terry Kelly’s claims, because the record shows that plaintiff Terry Kelly accepted the benefits of the Release Form as it applied to the orientation visit. By detailing the kind of activities that he “understood” and “anticipated” his child would be involved in when she arrived at the orientation visit, plaintiff Terry Kelly’s declaration discloses that he knew plaintiff Morgan Kelly would be visiting Camp Lejeune. (T. Kelly Decl. at ¶ 10). He also alleges that “[a] monetary payment was required as a condition of Morgan’s attendance at the orientation visit,” indicating that he consented to payment for the visit. Id. at ¶ 5. He does not allege any objection to his daughters’ attendance or participation. He does not allege that he was estranged from his family, or that he was kept unaware of the upcoming activity. [*34]

“[A] party will not be allowed to accept benefits which arise from certain terms of a contract and at the same time deny the effect of other terms of the same agreement.” Brooks v. Hackney, 329 N.C. 166, 173, 404 S.E.2d 854 (1991). In Brooks, the court determined that even though an agreement to convey real property was invalid because its terms were not sufficiently definite, the plaintiff was estopped from denying its validity because he had made regular payments on the agreement, and therefore that the defendants reasonably relied on the writing. Id. at 171-73.

The same principle operates here, where plaintiff Terry Kelly signed a Release Form surrendering claims related to his daughter’s participation in NJROTC training, then allowed his daughter to attend a NJROTC training orientation visit. On the evidence, there is no genuine issue that plaintiff Terry Kelly accepted that plaintiff Morgan Kelly’s “membership in the Naval Junior Reserve Officers Training Corps training,” included the orientation visit. In consideration of this training, including the orientation visit, he released “claims, demands, actions, or causes of action, due to . . . injury.” Defendant reasonably relied on plaintiff Terry Kelly’s writing, in addition to his acquiescence to his [*35] daughter’s attendance at the orientation visit. Plaintiff Terry Kelly cannot be allowed to accept the benefits of the Release Form through his daughter’s attendance, while at the same time denying the release that was required as a condition of that attendance.

With all of plaintiffs’ claims disposed by waiver and release, summary judgment must be granted.

CONCLUSION

For the reasons set forth above, the court GRANTS defendant’s motion for summary judgment. (DE 93). The clerk is DIRECTED to close this case.

SO ORDERED, this the 25th day of September, 2014.

/s/ Louise W. Flanagan

LOUISE W. FLANAGAN

United States District Judge

ADDENDUM A

Waiver of liability and Assumption of Risk Agreement United States Marine Corps

Dated: July 20, 2007

EXHIBIT B

WAIVER OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT UNITED STATES MARINE CORPS

In consideration of the privilege of participating in an organized event in a training area at Camp Lejeune, North Carolina, and further recognizing the voluntary nature of my participation in this event, I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, legal representatives and any other [*36] persons on my behalf, any and all rights and claims for damages, demands, and any other actions whatsoever, including those attributable to simple negligence, which I may have against any of the following persons or entities: the United States of America; the Depart of Defense; the Department of the Navy; the United States Marine Corps; Marine Corps Base, Camp Lejeune, North Carolina; any and all individuals assigned to or employed by the United States, including but not limited to the Secretary of Defense; the Secretary of the Navy; the Commandant of the Marine Corps; Commanding General, Marine Corps Base, Camp Lejeune, North Carolina; in both their official and personal capacities; any medical support personnel assigned thereto; and these, persons’ or entities’ representatives, successors, and assigns; which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment, or facilities in conjunction with and furtherance of such participation by me. I FURTHER VERIFY THAT I HAVE FULL KNOWLEDGE OF THE RISKS ASSOCIATED WITH ATTENDING THIS EVENT. I EXPRESSLY, [*37] KNOWINGLY, AND VOLUNTARILY ASSUME THE RISKS INVOLVED IN THE PLANNED ACTIVITIES INCLUDING TRANSPORTATION TO AND FROM THE EVENT, AND AGREE TO HOLD THE UNITED STATES HARMLESS FOR ANY RESULTING INJURY. I understand that this assumption of risk agreement shall remain in effect until notice of cancellation is received by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized event.

(Signature of Witness)

[TEXT REDACTED BY THE COURT]

/s/ Morgan E. Kelly 7/19/07

(Signature) (Date)

Morgan E. Kelly

(Printed Name)

/s/ Pamela D. Kelly

(Signature of Parent/Guardian)

on behalf of Morgan

(Name of Minor)

Date: 7-20-07

Participants Information/POC Page

FOR OFFICIAL USE ONLY

(Please Print Legibly)

Participant Last Name, First Name, Initial: Kelly Pamela D

Parent/Guardian Name: Pam Kelly

Home Phone: [TEXT REDACTED BY THE COURT]

Work Phone: [TEXT REDACTED BY THE COURT]

Cellular Phone: [TEXT REDACTED BY THE COURT]

Alternative Adult to be Contacted in Case of Emergency and Relation to Participant: Terry Kelly

Home Phone: [TEXT REDACTED BY THE COURT]

Work Phone: [TEXT REDACTED BY THE [*38] COURT]

Cellular Phone: [TEXT REDACTED BY THE COURT]

Does the Participant have Any Allergies or Special Medical Conditions? None

ADDENDUM B

Naval Junior Reserve Officers Training Corps (NJROTC)

Standard Release Form With Certificate of Authenticity

Dated: July 13, 2007

EXHIBIT 2

CERTIFICATE OF AUTHENTICITY

The undersigned certifies that I am the person responsible for keeping of school and\or student records in behalf of the Henry County Board of Education and that the within and attached is a true and accurate copy of certain school system records of

Morgan Kelly (DOB: [TEXT REDACTED BY THE COURT])

thereof kept in the normal course of business of the Henry County School System. This Certificate of Authenticity may be used in lieu of the personal appearance of the person certifying hereto.

/s/ Archie Preston Malcom

Archie Preston Malcom, Bd.D

Compliance Officer (Contracted)

11-14-2013

Sworn to and subscribed before me on this 14th day of November 2013

/s/ Slyvia S/ Burch

Notary Public

My Commission Expires: 07/21/16

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Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

Stacy Sanislo, et al., Petitioners, vs. Give Kids The World, Inc., Respondent.

No. SC12-2409

SUPREME COURT OF FLORIDA

157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

February 12, 2015, Decided

PRIOR HISTORY: [*1] (Osceola County). Fifth District – Case No. 5D11-748. Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions.

Give Kids The World, Inc. v. Sanislo, 98 So. 3d 759, 2012 Fla. App. LEXIS 17750 (Fla. Dist. Ct. App. 5th Dist., 2012)

COUNSEL: Christopher Vincent Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, Florida; and Michael J. Damaso, II of Wooten, Kimbrough & Normand, P.A., Orlando, Florida, for Petitioners.

Dennis Richard O’Connor, Derek James Angell, and Matthew J. Haftel of O’Connor & O’Connor, LLC, Winter Park, Florida, for Respondent.

Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association.

JUDGES: LABARGA, C.J., and PERRY, J., concur. CANADY and POLSTON, JJ., concur in result. LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.

OPINION

PER CURIAM.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. 5th DCA 2012), in which the Fifth District held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts. The district court certified that its decision is in direct conflict with [*2] the decisions of the First, Second, Third, and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Courts of Appeal.

FACTS AND PROCEDURAL HISTORY

This action arose as a result of a negligence action brought against Give Kids the World, Inc., (Give Kids the World), a non-profit organization that provides free “storybook” vacations to seriously ill children and their families at its resort village,1 by Stacy and Eric Sanislo, a married couple who brought their seriously ill child to the village, for injuries sustained by Ms. Sanislo while on the vacation.

1 Fulfillment of a child’s wish is accomplished in conjunction with the Make-A-Wish Foundation. See Give Kids the World, 98 So. 3d at 760 n.1.

As part of the application process for the “storybook” vacation, the Sanislos filled out and signed a wish request form, which contained language releasing Give Kids the World from any liability for any potential cause of action. After the wish was granted, the Sanislos arrived at the resort village located in Kissimmee, Florida, and again signed a liability [*3] release form. The wish request form and liability release form both provide, in pertinent part:

I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants, and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind. . . .

I/we further agree to hold harmless and to release Give Kids the World, Inc. from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us. . . .

While at the resort village, the Sanislos and their children participated in the horse-drawn wagon ride operated by Heavenly Hoofs, Inc. The wagon, manufactured by codefendant Thornlea Carriages, Inc., was equipped with a rear, pneumatic lift to allow those in wheelchairs to participate in [*4] the ride. The carriage was carrying the Sanislos’ children. The Sanislos stepped onto the wheelchair lift of the wagon to pose for a picture and the lift collapsed due to weight overload, causing injuries to Ms. Sanislo’s left hip and lower back.

The Sanislos subsequently brought suit in the circuit court for Osceola County against Give Kids the World alleging Ms. Sanislo’s injuries were caused by Give Kids the World’s negligence. See id. at 761. Give Kids the World asserted an affirmative defense of release, and filed a motion for summary judgment arguing that the Sanislos signed releases that precluded an action for negligence. Id. The Sanislos also filed a motion for partial summary judgment on Give Kids the World’s affirmative defense of release. The trial court granted the Sanislos’ motion for summary judgment and denied Give Kids the World’s motion for summary judgment. Thus, the negligence action proceeded to trial. Following a jury verdict, judgment was entered in the Sanislos’ favor awarding them $55,443.43 for damages incurred as a result of the injury and costs of $16,448.61.

On appeal to the Fifth District, Give Kids the World argued that the lower court erred by denying its pretrial [*5] motion for summary judgment on its affirmative defense of release because the release was unambiguous and did not contravene public policy. The Fifth District reversed the trial court’s denial of summary judgment, holding that an exculpatory clause releasing Give Kids the World from liability for “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us” barred the negligence action despite the lack of a specific reference to “negligence” or “negligent acts” in the exculpatory clause. Id. at 761-62. The Fifth District reasoned that exculpatory clauses are effective if the wording of the exculpatory clause is clear and understandable so that an ordinary and knowledgeable person would know what he or she is contracting away, and that the court had previously rejected “‘the need for express language referring to release of the defendant for “negligence” or “negligent acts” in order to render a release effective to bar a negligence action.'” Id. at 761 (quoting Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006)). The Fifth District also held that the bargaining power of the parties should not be considered because it was outside of the public utility or public function [*6] context and the Sanislos were not required to request a vacation with Give Kids the World or go on the vacation.

In Levine, Van Tuyn, Goyings, and Tout, the remaining four district courts of appeal held that exculpatory clauses are ineffective to bar a negligence action unless there is express language referring to release of the defendant for its own negligence or negligent acts. Accordingly, the conflict presented for this Court’s resolution is whether an exculpatory clause is ambiguous and thus ineffective to bar a negligence action due to the absence of express language releasing a party from its own negligence or negligent acts.

The Sanislos argue that express language regarding negligence is necessary to render an exculpatory clause effective to bar an action for negligence because this Court has held that indemnification agreements, which are similar in nature to an exculpatory clause, require a specific provision protecting the indemnitee for its own negligence in order to be effective. Further, the Sanislos argue that an ordinary and knowledgeable person does not expect a release to relieve a party from liability for failure to provide reasonable care; thus, any document intending [*7] to do so must include specific, unambiguous language to that effect. Give Kids the World, however, argues that use of the term “negligence” should not be required because: (1) the term “liability” is more readily understandable than “negligence” to an ordinary and knowledgeable person; (2) the language of this exculpatory clause would be rendered meaningless if found ineffective; (3) indemnification agreements and exculpatory clauses serve different purposes and involve differing allocations of risks; and (4) this rule has been rejected by many states. For the reasons discussed below, we hold that an exculpatory clause is not ambiguous and, therefore, ineffective simply because it does not contain express language releasing a defendant from liability for his or her own negligence or negligent acts; such an approach could render similar provisions meaningless and fail to effectuate the intent of the parties.

ANALYSIS

The issue presented–the enforceability of a pre-injury exculpatory clause that does not contain express language releasing a party of liability for its own negligence or negligent acts–is a question of law arising from undisputed facts. Thus, [HN1] the standard of review is de [*8] novo. See Kirton v. Fields, 997 So. 2d 349, 352 (Fla. 2008) (citing D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (stating that the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower courts)).

[HN2] Public policy disfavors exculpatory contracts because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So. 2d at 578); see Levine, 516 So. 2d at 1103 (“The rule is that [HN3] an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So. 2d at 1146 (same). Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Applegate, 974 So. 2d at 1114 (citing Cain, 932 So. 2d at 578); Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B (1965). Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Cain, 932 So. 2d at 578 (citing Gayon v. Bally’s Total Fitness Corp., 802 So. 2d 420, 420-21 (Fla. 3d DCA 2001)); Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001); cf. Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507, 509 (Fla. 1973) ( [HN4] “‘A contract of indemnity will not be construed to indemnify [*9] the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms. . . .'”).

The liability release forms signed in this case provided that the Sanislos released Give Kids the World from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish . . .” and “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us. . . .” Further, the form states that the scope of the release includes “damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind.” Although this exculpatory clause otherwise clearly and unequivocally includes negligence as its express terms encompass any liability, any and all claims and causes of action, and damages or losses or injuries encountered on the vacation, the issue before this Court is whether an exculpatory clause’s terms “clearly and unequivocally” release a party of liability for its own negligence or negligent acts when the [*10] clause does not contain express language regarding negligence or negligent acts.2

2 The Sanislos do not argue that the exculpatory clause here is void because it is against public policy. This claim is barred. Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (noting that an argument not raised in the initial brief is barred).

As noted above, in Give Kids the World, the Fifth District reaffirmed its position that exculpatory clauses are not ambiguous, equivocal, and unenforceable to bar negligence actions simply because they do not contain express language referring to release of the defendant for negligence or negligent acts. Id. at 761. The First, Second, Third, and Fourth Districts, however, relying on this Court’s holding in University Plaza regarding indemnity agreements, have held that an exculpatory clause is only effective to bar a negligence action if it clearly states that it releases a party from liability for his or her own negligence. Levine, 516 So. 2d at 1103; Van Tuyn, 447 So. 2d at 320; Goyings, 403 So. 2d at 1146 (reasoning that “This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability.”); and Tout, 390 So. 2d at 156 (citing Ivey Plants, 282 So. at 209 (relying on University Plaza to conclude that the language in the indemnification agreement [*11] did not preclude maintenance of an action predicated on the alleged negligence of the defendant)).

Here, both parties argue the merits of extending the holding stated in University Plaza in the context of indemnity agreements to exculpatory clauses and hold-harmless agreements. The Sanislos contend that indemnity agreements and exculpatory clauses achieve the same result–abdication of responsibility for one’s own negligence–and therefore, should be treated the same. Give Kids the World, on the other hand, contends that it is sensible to require specificity in indemnity agreements because both parties to the contract can conceivably cause injury to an unknown third party, whereas exculpatory clauses shift the risk of injury and liability from one contracting party–usually a purveyor of voluntary amusements or a non-profit service provider–to the other contracting party, a voluntary consumer of the amusement or service. To determine whether the holding in University Plaza should be applied in this context, we examine University Plaza and its progeny, and out of state case law.

University Plaza

In University Plaza, University Plaza Shopping Center leased space in its building to a tenant [*12] who used the space to operate a barbershop. During the lease, a gas line exploded underneath the barbershop causing fatal injuries to a barber. The barber’s widow sued University Plaza Shopping Center for wrongful death alleging that the landlord negligently installed and maintained the gas line under the barbershop, which caused the explosion that led to the barber’s fatal injuries. University Plaza Shopping Center then instituted a third-party complaint against the tenant and his insurer seeking to impose liability on them based on an indemnity provision, which provided in pertinent part that the tenant would indemnify and save harmless the landlord from and against any and all claims for damages in and about the demised premises, and against any and all claims for personal injury or loss of life in and about the demised premises. Univ. Plaza, 272 So. 2d at 508-09. University Plaza Shopping Center conceded that the gas line was under, but not part of, the leased premises. Thus, the trial court entered a summary judgment for the tenant finding that an indemnity agreement stated in general terms does not apply to liability resulting from the sole negligence of the indemnitee. Further, the trial court found that the [*13] policy of insurance procured by the tenant was only applicable when the tenant was liable, and the tenant was free from liability for the gas line explosion. On appeal, the First District affirmed. This Court accepted certiorari review based on a decisional conflict because the Third District, in Thomas Awning & Tent Co., Inc. v. Toby’s Twelfth Cafeteria, Inc., 204 So. 2d 756 (Fla. 3d DCA 1967), held that indemnification for “any loss or claims” encompasses the indemnitee’s negligence.

The central issue in University Plaza was whether a contract of indemnity stated in general terms of “any and all claims” indemnifies the indemnitee for damages resulting from his sole negligence. Univ. Plaza, 272 So. 2d at 509. This Court noted that “divergent views” on the particular issue existed throughout the United States, but that the basic premise was that an indemnity contract does not indemnify the indemnitee against losses resulting from the indemnitee’s negligent acts unless such intention is expressed in clear and unequivocal terms. Id. The Court observed that the divergence in views across the country turned on an interpretation of the words “clear and unequivocal” and that three approaches existed: (1) the contract must contain a specific provision providing for indemnification in the event the indemnitee is negligent; [*14] (2) promises to indemnify against “any and all claims” include losses attributed solely to the negligence of the indemnitee because “all” means “all without exception”; and (3) the express use of the terms “negligence” or “negligent acts” is not required if the contractual language and any other factors indicate the intention to clearly and unequivocally indemnify for the indemnitee’s own negligence. Id. at 509-10.

In concluding that [HN5] the best alternative was to require a specific provision protecting the indemnitee from liability solely caused by his own negligence,3 this Court reasoned that its “basic objective in construing the indemnity provision is to give effect to the intent of the parties involved. . .” and that “the use of the general terms ‘indemnify . . . against any and all claims’ does not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee.” Id. at 511 (emphasis omitted). The Court further reasoned that in the context presented, “the phraseology logically relates to the tenant’s occupation of the leased premises–not some outside (though proximately close) independent act of negligence of the landlord. . . . It might be likened to a ‘common [*15] stairway’ in an apartment complex. . . . One would not expect liability to extend under a shopowner’s policy for a landlord’s negligently maintained common walkway or mall in front of a series of shops.” Id. at 512 (emphasis omitted). Finally, we concluded our reasoning by stating that the other alternatives listed above impute an intent to indemnify for liability occasioned by the indemnitee’s sole negligence, which is a “harsh result not necessarily contemplated by the parties nor condoned by this Court.” Id. Six years later, we considered whether this rule applied to situations where the indemnitee was jointly liable due to his or her own negligence in Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979).

3 This Court did not follow the United States Supreme Court’s decision in United States v. Seckinger, 397 U.S. 203, 212 n.17, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970), in which the Supreme Court declined to hold that language in indemnification agreements needed to explicitly state that the indemnification extended to injuries caused by the indemnitee’s own negligence, and recognized that contract interpretation is largely an individualized process “with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention.”

Charles Poe Masonry

In Charles Poe Masonry [*16] , an employee of Charles Poe Masonry was injured when he fell from a scaffold on a construction site. The employee filed an action alleging the manufacturer of the scaffold, Spring Lock, was negligent, breached the implied warranty, and was strictly liable for his injuries. The scaffold had been leased by Spring Lock to Charles Poe Masonry. The lease agreement provided in pertinent part that the lessee assumed all responsibility for claims asserted by any person whatsoever growing out of the erection and maintenance, use, or possession of the scaffolding equipment, and that the lessee agreed to hold the lessor harmless from such claims. Id. at 489. Thus, Spring Lock filed a third-party complaint against Charles Poe Masonry for contractual indemnity.4 Id. at 488.

4 Spring Lock also filed the third-party complaint against Charles Poe Masonry for common law indemnity, which this Court held was unavailable for the reasons expressed in Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979).

In considering whether the provision barred a negligence action, we found that the provision at issue was “exactly the sort of ‘general terms’ which we held in University Plaza do not disclose an intention to indemnify for consequences arising from the wrongful acts of the indemnitee” [*17] and that the public policy reasons expressed in University Plaza applied with equal force to instances where the indemnitor and indemnitee were jointly liable. Id. at 489-90 (“Under classical principles of indemnity, courts of law rightfully frown upon the underwriting of wrongful conduct, whether it stands alone or is accompanied by other wrongful acts.”). Further, we reasoned that the language of the provision demonstrated “nothing more than an undertaking by [Charles Poe Masonry] to hold Spring Lock harmless from any vicarious liability which might result from [Charles Poe Masonry’s] erection, maintenance or use of the scaffold.” Id. at 489.

We reaffirmed these principles thirteen years later in Cox Cable Corp. v. Gulf Power Co., 591 So. 2d 627 (Fla. 1992).

Cox Cable

In Cox Cable, Cox Cable Corporation and Gulf Power Company entered into a written contract authorizing Cox Cable to attach its cables, wires, and appliances to Gulf Power’s utility poles. The contract also provided that Cox Cable was to ensure the safe installation and maintenance of any wires, cables, or devices attached to the poles and indemnify Gulf Power against claims for personal injury and property damages. Cox Cable hired a cable installation contractor to perform the installation, and the [*18] cable installation contractor’s employee suffered electrical burns when he overtightened a guy wire during the course of installation. This employee sued Gulf Power alleging that its failure to warn him of the danger was negligent. Gulf Power then filed a third-party complaint against Cox Cable seeking indemnification.5 Id. at 628-29. The indemnity agreement provided in pertinent part that the licensee was to indemnify and save the licensor forever harmless against any and all claims and demands for damages to property and injury or death to any persons including, but not restricted to, employees of the licensee and employees of any contractor or subcontractor performing work for the licensee which may arise out of or be caused by the erection, maintenance, presence, use or removal of the aforementioned attachments. Id. at 629.

5 Gulf Power also claimed breach of contract and alleged that Cox Cable’s negligence was the sole and proximate cause of the employee’s injuries.

On appeal, the district court stated that the degree of specificity required for indemnification in cases of joint negligence was less stringent than in cases where the indemnitee is solely negligent. This Court, however, reaffirmed the principles [*19] established in University Plaza and Charles Poe Masonry in holding that the district court had erred by applying a less stringent standard to cases involving parties who are jointly liable, and that the language of the provision before it was insufficiently clear and unequivocal. Accordingly, it is clear that since 1973 and as recently as 1992, this Court has found that [HN6] an indemnity agreement only indemnifies the indemnitee for his or her own negligence or negligent acts if the agreement contains a specific provision protecting the indemnitee from liability caused by his or her own negligence.

[HN7] The principles underlying our case law regarding indemnity agreements, however, are not applicable to exculpatory clauses. Generally, “[i]ndemnification provides a party entitled to indemnification the right to claim reimbursement for its actual loss, damage, or liability from the responsible party. . . .” First Baptist Church of Cape Coral, Florida, Inc. v. Compass Constr., Inc., 115 So. 3d 978, 986 (Fla. 2013) (Lewis, J., dissenting) (emphasis added) (citing Black’s Law Dictionary 837 (9th ed. 2009)); see also Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999) ( [HN8] “A contract for indemnity is an agreement by which the promisor agrees to protect the promisee against loss or damages by reason of liability to a third party.”). Further, “[i]ndemnification serves the purpose of holding [*20] the indemnified party harmless by shifting the entire loss or damage incurred by the indemnified party–who has without active negligence or fault ‘been obligated to pay, because of some vicarious, constructive, derivative, or technical liability’–to the responsible party who should bear the cost because it was that party’s wrongdoing for which the indemnified party is held liable.” Compass Constr., 115 So. 3d at 986 (Lewis, J., dissenting) (emphasis added); see also Rosati v. Vaillancourt, 848 So. 2d 467, 470 (Fla. 5th DCA 2003) ( [HN9] “Indemnity is a right which inures to one who discharges a duty owed by him but which, as between himself and another, should have been discharged by the other.” (citing Houdaille Indust., Inc. v. Edwards, 374 So. 2d 490, 492-93 (Fla. 1979))). These contracts are typically negotiated at arm’s length between sophisticated business entities and can be viewed as an effort to allocate the risk of liability. Gross v. Sweet, 49 N.Y.2d 102, 400 N.E.2d 306, 310, 424 N.Y.S.2d 365 (N.Y. 1979). Thus, it would not be apparent that a party has agreed to indemnify a party for liability incurred due to that party’s own negligent conduct based on general language in an indemnification agreement.

[HN10] An exculpatory clause, on the other hand, shifts the risk of injury and deprives one of the contracting parties of his or her right to recover damages suffered due to the negligent act of the other contracting party. See Ivey Plants, 282 So. 2d at 207. Thus, [*21] although indemnification agreements can sometimes produce the same result as an exculpatory provision by shifting responsibility for the payment of damages back to the injured party, see O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446 (Fla. 5th DCA 1982), Florida courts recognize a distinction between exculpatory clauses and indemnity clauses.6 Acosta v. Rentals (N. Am.), Inc., No. 8:12-CV-01530-EAK-TGW, 2013 U.S. Dist. LEXIS 31392, 2013 WL 869520 (M.D. Fla. Mar. 7, 2013).

6 In Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 792 n.6 (Minn. 2005), the court noted that [HN11] although it had previously recognized similarities between exculpatory clauses and indemnity agreements, the “[i]ndemnification clauses are subject to greater scrutiny because they release negligent parties from liability, but also may shift liability to innocent parties.”

These distinctions are evidenced in this Court’s precedent noted above. In University Plaza and Charles Poe Masonry, this Court recognized that [HN12] indemnification agreements are construed subject to the general rules of contract construction–the Court looks to the intentions of the parties. See Dade Cnty. Sch. Bd., 731 So. 2d at 643 (noting that indemnity contracts are subject to the general rules of contractual construction). Thus, given the typical purpose of indemnification, and that the parties’ apparent intent was to reduce the risk of vicarious liability, we were reluctant to decipher an intent to indemnify a party [*22] for its own wrongdoing through the parties’ use of general terms. See Univ. Plaza, 272 So. 2d at 512 (noting that the language of the agreement appeared to relate to injuries occurring due to the tenant’s occupation of the leased premises–liability would not logically extend to a landlord’s negligently maintained common walkway); Charles Poe Masonry, 374 So. 2d at 489 (noting that the language of the lease agreement appeared to be an undertaking by the indemnitor to indemnify the indemnitee from any vicarious liability). Further, because courts “frown upon the underwriting of wrongful conduct. . .,” specificity is required in the indemnity context. See id. at 489-90 (holding that courts should not allow underwriting of wrongful conduct). In short, because indemnification agreements allocate the risk of liability for injuries to an unknown third party, specificity is required so that the indemnitor is well aware that it is accepting liability for both its negligence and the negligence of the indemnitee. Exculpatory clauses, however, primarily release a party from liability for its own negligence and not vicarious liability.7 See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784-85 (Colo. 1989) (noting, in a release relieving a party from liability for any injuries due to horseback riding, that any claim the injured party could [*23] have asserted would have been based on negligence). Further, releasing a party from liability does not result in the underwriting of wrongful conduct or shift liability to an innocent party. Thus, discerning the intent of the parties regarding the scope of an exculpatory clause involves less uncertainty than in an indemnification context. Accordingly, University Plaza and its progeny do not control our conclusion here.

7 Indeed, the petitioner in this case could not indicate what this liability release form covered if not the negligence of Give Kids the World.

Review of out-of-state precedent illustrates that many states have expressly rejected the requirement that an exculpatory clause contain an explicit provision releasing a party from liability for his or her own negligence or negligent acts.

Out-of-State Precedent

State courts across the country have rendered four different standards for determining whether language in an exculpatory clause clearly and unequivocally releases a party from liability for negligence. 57A Am. Jur. 2d Negligence § 53 (2004). First, recognizing that “the intentions of the parties with regard to an exculpatory provision in a contract should be delineated with the greatest of particularity,” [*24] an exculpatory clause will be given effect if the agreement clearly and unambiguously expresses the parties’ intention to release a party from liability for his or her own negligence by using the words “negligence” or “negligent acts” and specifically including injuries definitely described as to time and place. 57A Am. Jur. 2d Negligence § 53 (citing Jones v. Dressel, 623 P.2d 370 (Colo. 1981); Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 663 A.2d 1340 (N.H. 1995)). Second, a specific reference to negligence is not required if the clause clearly and specifically indicates an intent to release the defendant from liability for a personal injury caused by the defendant’s negligence. See 57A Am. Jur. 2d Negligence § 53 (citing Seigneur v. Nat’l Fitness Inst., Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000); Swartzentruber v. Wee-K Corp., 117 Ohio App. 3d 420, 690 N.E.2d 941 (Ohio Ct. App. 1997); Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973); Russ v. Woodside Homes, Inc., 905 P.2d 901 (Utah Ct. App. 1995); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (Wash. Ct. App. 1981)). Third, a specific reference to negligence is not required if protection against negligence is the only reasonable construction of the contract. See, e.g., American Druggists’ Ins. Co. v. Equifax, Inc., 505 F. Supp. 66, 68-69 (S.D. Ohio 1980) (applying Ohio law). Fourth, a specific reference to negligence is not required if the hazard experienced was clearly within the contemplation of the provision. See, e.g., Blide, 636 P.2d 493). Courts, however, have required words conveying a similar import; a release will not cover negligence if it neither specifically refers to negligence nor contains any other language that could relate to negligence. See 57A Am. Jur. 2d Negligence § 53 (citing Lewis v. Snow Creek, Inc., 6 S.W.3d 388 (Mo. Ct. App. 1999) (retransferred to Mo. Ct. of Appeals (Dec. 21, 1999) and opinion adopted [*25] and reinstated after retransfer (Jan. 6, 2000)); Sivaslian v. Rawlins, 88 A.D.2d 703, 451 N.Y.S.2d 307 (N.Y. App. Div. 1982); Colton v. New York Hospital, 98 Misc. 2d 957, 414 N.Y.S.2d 866 (N.Y. Sup. Ct. 1979)). According to American Jurisprudence, however, “the better practice is to expressly state the word ‘negligence’ somewhere in the exculpatory provision.”8 57A Am. Jur. 2d Negligence § 53; see Give Kids the World, 98 So. 3d at 763 (Cohen, J., concurring specially) (“The better view is to require an explicit provision to that effect. . . . I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care.”).

8 Although many courts have noted that it may be “better practice” to include the term “negligence” in contracts, our jurisprudence recognizes that the term “negligence” may not be understood by the average ordinary and knowledgeable person. For instance, the legal term “negligence” is defined for juries. See Fla. Std. Jury Instr. (Civ.) 401.4. Thus, the inclusion of the terms “negligence” or “negligent acts” may not clarify the meaning of an exculpatory contract for the average ordinary and knowledgeable person at all.

Although some courts have suggested that “the better practice” for contracting parties is to require an explicit provision releasing a party from liability for his or her own negligence or negligent acts, most [*26] states have expressly rejected such a requirement. For instance, the Supreme Court of Kentucky does not require the word “negligence,” but reviews the contractual language to determine whether it satisfies any one of four standards articulated by the court. Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005) (“. . . a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word ‘negligence’; or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision.”); see Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644, 649-50 (Ky. 2007) (finding that the wording of the release was “unmistakable” and that “‘the hazard experienced was clearly within the contemplation of the provision.'”).

The Colorado Supreme Court has “examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. . .” and has “also made clear that the specific terms ‘negligence’ and ‘breach of [*27] warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (citing Heil Valley Ranch, 784 P.2d at 785). Indeed, in Heil, the Colorado Supreme Court noted several factors supporting the enforceability of the exculpatory clause: (1) the agreement was written in terms free from legal jargon; (2) the clause was not inordinately long or complicated; (3) when the agreement was read to the injured party at a deposition she indicated that she understood it; (4) the release specifically addressed a risk that adequately described the circumstances of the injury; and (5) it was difficult to imagine any claims that the injured party could have asserted other than negligence. 784 P.2d at 785. However, in Wycoff v. Grace Community Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo. App. 2010), the court of appeals noted that in every Colorado Supreme Court case upholding an exculpatory clause, the clause “contained some reference to waiving personal injury claims based on the activity being engaged in.” Thus, a release form that did not reference the relevant activity or that personal injury claims were specifically waived was unenforceable.

Other states have similarly held that reference to negligence is not required. The Supreme Court of Hawai’i [*28] has held that an exculpatory clause that did not include specific language pertaining to negligence was effective to bar simple negligence claims, but not gross negligence or willful misconduct. See Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 141 P.3d 427, 439-40 (Haw. 2006). In Massachusetts, an exculpatory clause releasing a party from liability for “any and all liability, loss, damage, costs, claims and/or causes of action, including but not limited to all bodily injuries” occurring during a motorcycle safety course was deemed “unambiguous and comprehensive” despite the absence of language specifically mentioning negligence. Cormier v. Cent. Mass. Chapter of the Nat’l Safety Council, 416 Mass. 286, 620 N.E.2d 784, 785 (Mass. 1993).

The following states also hold that the word “negligence” is not required. See, e.g., Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298, 304 (Md. 1996) (“To be sure, as the weight of authority makes clear . . . the exculpatory clause need not contain or use the word ‘negligence’ or any other ‘magic words.'”); Cudnik v. William Beaumont Hosp., 207 Mich. App. 378, 525 N.W.2d 891, 894 n.3 (Mich. App. 1994) (holding exculpatory agreement executed by patient before receiving radiation therapy was void as against public policy, but noting that exculpatory clause was not void for ambiguity because it “quite clearly attempts to absolve defendant of all liability ‘of every kind and character’ arising out of the radiation therapy” despite no reference to negligence); Mayfair Fabrics v. Henley, 48 N.J. 483, 226 A.2d 602, 605 (N.J. 1967) (“But there are no required words [*29] of art and, whatever be the language used or the rule of construction applied, the true goal is still the ascertainment and effectuation of the intent of the parties.”); Reed v. Univ. of N.D., 1999 ND 25, 589 N.W.2d 880, 885-86 (N.D. 1999); Estey v. MacKenzie Eng’g Inc., 324 Ore. 372, 927 P.2d 86, 89 (Or. 1996) (noting that the Supreme Court of Oregon had previously upheld clauses releasing others from liability “‘from whatever cause arising,'” and “‘all liability, cost and expense,'” and declining “to hold that the word ‘negligence’ must expressly appear in order for an exculpatory or limitation of liability clause to be effective against a negligence claim”); Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188, 190 (Tenn. 1973); Russ v. Woodside Homes, Inc., 905 P.2d 901, 906 (Utah Ct. App. 1995); Fairchild Square Co. v. Green Mountain Bagel Bakery, Inc., 163 Vt. 433, 658 A.2d 31, 34 (Vt. 1995); Scott ex rel. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 9-10 (Wash. 1992) (en banc) (rejecting proposed requirement of “the word ‘negligence’ or language with similar import” and holding “[c]ourts should use common sense in interpreting purported releases, and the language ‘hold harmless . . . from all claims’ logically includes negligent conduct”); Murphy v. N. Am. River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504, 511 (W. Va. 1991); Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334, 341 (Wis. 2005) (noting that “this court has never specifically required exculpatory clauses to include the word ‘negligence,'” but has recognized that its inclusion would be “very helpful”); Schutkowski v. Carey, 725 P.2d 1057, 1061 (Wyo. 1986) (adopting a “common sense” approach “based on the clear intent of the parties rather than specific ‘negligence’ terminology” for interpreting exculpatory clauses); Sanchez v. Bally’s Total Fitness Corp., 68 Cal. App. 4th 62, 79 Cal. Rptr. 2d 902, 904 (Cal. Ct. App. 1998)9 (noting that courts look to the intent of the parties [*30] and use of the term “negligence” is not dispositive); Neighborhood Assistance Corp. v. Dixon, 265 Ga. App. 255, 593 S.E.2d 717 (Ga. Ct. App. 2004); Finagin v. Ark. Dev. Fin. Auth., 355 Ark. 440, 139 S.W.3d 797 (Ark. 2003) (noting that courts are not restricted to the literal language of the contract and will consider the facts and circumstances surrounding the execution of the release to determine the intent of the parties).10

9 In Benedek v. PLC Santa Monica, LLC, 104 Cal. App. 4th 1351, 129 Cal. Rptr. 2d 197 (Cal. Ct. App. 2002), the injured party did not contend that the release is ineffective due to the ambiguity of the language. Thus, Division Five of the Second Appellate District did not address this issue. However, California law appears to provide that a release need not achieve perfection, but “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.”

10 It is also evident that federal courts in circuits finding complete limitations on liability enforceable in maritime contracts hold that express reference to the terms “negligence” or “negligent acts” is not required. See Cook v. Crazy Boat of Key West, Inc., 949 So. 2d 1202 (Fla. 3d DCA 2007) (“State laws requiring specific reference to the releasee’s negligence therefore conflict with federal law and may not be applied in cases involving federal maritime law.”).

Other jurisdictions, however, require express use of the terms “negligence” or “negligent acts.” See Sweeney v. City of Bettendorf, 762 N.W.2d 873, 878-79 (Iowa 2009) (requiring specific reference to exculpee’s own negligence); McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C. 242, 612 S.E.2d 462 (S.C. Ct. App. 2005); [*31] Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct. App. 1998); Morganteen v. Cowboy Adventures, Inc., 190 Ariz. 463, 949 P.2d 552 (Ariz. Ct. App. 1997); Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337-38 (Mo. 1996) (holding that express language is required because “[o]ur traditional notions of justice are so fault-based that most people might not expect such a relationship to be altered, regardless of the length of an exculpatory clause, unless done so explicitly”); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508-09 (Tex. 1993) (applying an “express negligence doctrine” because “indemnity agreements, releases, exculpatory agreements, or waivers, all operate to transfer risk” and such agreements are “an extraordinary shifting of risk”); Macek v. Schooner’s Inc., 224 Ill. App. 3d 103, 586 N.E.2d 442, 166 Ill. Dec. 484 (Ill. App. Ct. 1991); Kissick v. Schmierer, 816 P.2d 188, 190-91 (Alaska 1991).11 The Supreme Court of Connecticut held that express language was required explaining that

A person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing. A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights. Furthermore, the requirement that parties seeking to be released from liability for their negligence expressly so indicate does not impose on them any significant cost.

Hyson v. White Water Mountain Resorts of Conn., Inc., 265 Conn. 636, 829 A.2d 827, 831 (Conn. 2003). In New York, the Court of Appeals of New York held that in order for a party to shed [*32] its ordinary responsibility of due care, express use of the terms “negligence,” “negligent acts,” or words conveying a similar import are required because although parties may be alerted to dangers inherent in dangerous activities, “it does not follow that [parties are] aware of, much less intended to accept, any enhanced exposure to injury occasioned by the carelessness of the very persons on which [the parties] depend[] for [his or her] safety. . . . Thus, whether on a running reading or a careful analysis, the agreement could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.” Gross, 400 N.E.2d at 309-11.

11 In Alaska, however, indemnification agreements do not require specific words regarding indemnity for the indemnitee’s own negligence. Kissick, 816 P.2d at 192 (Compton, J., dissenting) (citing Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976)).

Although we agree that it may be better practice to expressly refer to “negligence” or “negligent acts” in an exculpatory clause, we find that the reasoning employed by the states that do not require an express reference to render an exculpatory clause effective to bar a negligence action [*33] is more persuasive, particularly in the context presented here. As discussed above, the courts’ basic objective in interpreting a contract is to give effect to the parties’ intent. Further, as the United States Supreme Court has observed, [HN13] contract interpretation is largely an individualized process “with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention.” United States v. Seckinger, 397 U.S. 203, 212 n.17, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970). As a result, we are reluctant to hold that all exculpatory clauses that are devoid of the terms “negligence” or “negligent acts” are ineffective to bar a negligence action despite otherwise clear and unambiguous language indicating an intent to be relieved from liability in such circumstances. Application of such a bright-line and rigid rule would tend to not effectuate the intent of the parties and render such contracts otherwise meaningless.12 The contract at issue demonstrates as much.

12 In a concurring opinion in Florida Department of Financial Services v. Freeman, Justice Cantero referred to several Florida Supreme Court cases discussing the freedom of contract and noted that this Court had previously recognized that [HN14] “‘while there is no such [*34] thing as an absolute freedom of contract, nevertheless, freedom is the general rule and restraint is the exception.'” 921 So. 2d 598, 607 (Cantero, J., concurring) (quoting Larson v. Lesser, 106 So. 2d 188, 191 (Fla. 1958)). Further, Justice Cantero noted that “[t]his freedom . . . ‘includes freedom to make a bad bargain.'” Id. at 607 (quoting Posner v. Posner, 257 So. 2d 530, 535 (Fla. 1972)). Finally, Justice Cantero acknowledged that courts may not “‘rewrite contracts or interfere with freedom of contracts or substitute [their] judgment for that of the parties to the contract in order to relieve one of the parties from apparent hardships of an improvident bargain.'” Id. at 607 (quoting Quinerly v. Dundee Corp., 159 Fla. 219, 31 So. 2d 533, 534 (Fla. 1947)).

The wish request form and liability release form signed by the Sanislos released Give Kids the World and all of its agents, officers, directors, servants, and employees from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish. . . .” The language of the agreement then provided that the scope of the agreement included “damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind. . . .” This agreement clearly conveys that Give Kids the World would be released [*35] from any liability, including negligence, for damages, losses, or injuries due to transportation, food, lodging, entertainment, and photographs. With regard to Give Kids the World and the wish fulfilled for the Sanislos, it is unclear what this agreement would cover if not the negligence of Give Kids the World and its agents, officers, directors, servants, and employees, given that exculpatory clauses are unenforceable to release a party of liability for an intentional tort. See Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760 (Fla. 5th DCA 2008) (citing Kellums v. Freight Sales Ctrs., Inc., 467 So. 2d 816 (Fla. 5th DCA 1985), and L. Luria & Son, Inc. v. Honeywell, Inc., 460 So. 2d 521 (Fla. 4th DCA 1984)). Further, this agreement specifically operates to release Give Kids the World in connection with circumstances that are not inherently dangerous. Thus, this is not a situation where a person of ordinary intelligence would believe that the release “could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.” Cf. Gross, 400 N.E.2d at 309-10; Hyson, 829 A.2d at 831 (requiring the use of the word “negligence” in a release pertaining to snowtubing). Accordingly, this agreement would be rendered meaningless if it is deemed ineffective to bar a negligence action solely on the basis of the absence of [*36] the legal terms of art “negligence” or “negligent acts” from the otherwise clear and unequivocal language in the agreement.

Despite our conclusion, however, we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions. As noted previously, [HN15] exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care. Applegate, 974 So. 2d at 1114 (citing Cain, 932 So. 2d at 578); see Levine, 516 So. 2d at 1103 (“The rule is that an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So. 2d at 1146 (same). Further, exculpatory clauses are only unambiguous and enforceable where the language unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away. Cain, 932 So. 2d at 578 (citing Gayon, 802 So. 2d at 420); Raveson, 793 So. 2d at 1173; cf. Univ. Plaza, 272 So. 2d at 509 (“‘A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms.'”). Moreover, as we stated in University Plaza, this [*37] Court’s “basic objective . . . is to give effect to the intent of the parties. . . .” Id. at 511 (emphasis deleted). Accordingly, our decision is merely a rejection of the Sanislos’ invitation to extend University Plaza, which applies to indemnity agreements, to exculpatory clauses.

CONCLUSION

For the foregoing reasons, we conclude that [HN16] the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not render the agreement per se ineffective to bar a negligence action. Accordingly, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980).

It is so ordered.

LABARGA, C.J., and PERRY, J., concur.

CANADY and POLSTON, JJ., concur in result.

LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.

DISSENT BY: LEWIS

DISSENT

LEWIS, J., dissenting.

Today the majority leaves our most vulnerable citizens open to catastrophe from those who seek to shield themselves from their own fault. Florida precedent mandates that because the advance liability release and hold harmless agreement signed by the Sanislos did not explicitly and unambiguously warn that Give Kids the World [*38] would be released and held harmless for its own failure to exercise reasonable care as previously outlined and required under Florida law, no such waiver was made. I disagree with the decision of the majority that such explicit warning is required only for valid indemnity agreements, but not for combined releases, indemnification, and hold harmless agreements, such as the document in this case.

In University Plaza Shopping Center v. Stewart, 272 So. 2d 507, 509 (Fla. 1973), the Court considered whether an indemnity agreement in which one party agreed to indemnify another for “any and all claims” included those that arose solely out of the negligence of the indemnitee. The Court concluded that indemnification agreements will be effective against the negligence of the indemnitee only if that intention is expressed in clear and unequivocal terms. Id. The Court then held that an agreement to indemnify against “any and all claims” does not clearly and unequivocally express the intent to include claims that result exclusively from the negligence of the indemnitee. Id. at 511. The majority provides no logical basis to ignore that well established principle.

As the majority recognizes but fails to apply, exculpatory clauses that protect a party from his or her own negligence [*39] are disfavored. See Slip Op. at 7, 32; see also Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979). Based on this policy, the Court in Charles Poe Masonry extended the holding of University Plaza to apply even where the indemnified party is jointly liable with the indemnitor. See id. at 489-90 (“Under classical principles of indemnity, courts of law rightfully frown upon the underwriting of wrongful conduct, whether it stands alone or is accompanied by other wrongful acts.”). Additionally, courts strictly construe exculpatory clauses against the party that seeks to be relieved of liability. See Cain v. Banka, 932 So. 2d 575, 580 (Fla. 5th DCA 2006); see also Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920, 922 (Fla. 3d DCA 1998). Courts have consistently required that explicit language be used in agreements that attempt to contract away liability for one’s own negligence, and the language must be sufficiently clear and understandable such that an ordinary and knowledgeable person will comprehend the rights that he or she relinquishes. Gillette v. All Pro Sports, LLC, 135 So. 3d 369, 370 (Fla. 5th DCA 2014). The language here has previously been held to be insufficient. The public policy that disfavors exculpatory clauses should apply with equal force to all contracts that operate to remove a party’s obligation to act with reasonable care.

Moreover, a hold harmless agreement is simply another term for an indemnification agreement. See 42 [*40] C.J.S. Indemnity § 23 (2014) (“The term ‘hold harmless’ means to fully compensate the indemnitee for all loss or expense, and an agreement to hold harmless is a contract of indemnity that requires the indemnitor to prevent loss to the indemnitee or to reimburse the indemnitee for all losses suffered from the designated peril.”) (footnotes omitted); see also Black’s Law Dictionary 887 (10th ed. 2014) (stating that “indemnity clause” may also be termed “hold-harmless clause”). Accordingly, because the Court has previously held that indemnification agreements are ineffective against the negligence of the party being indemnified unless they clearly and explicitly state this intent in language that can be understood by an ordinary and knowledgeable person, agreements to release and hold harmless without such language should be deemed similarly ineffective.

The rational basis for this principle of law is that a general release and hold harmless agreement may not sufficiently warn the untrained signing party that the other party will not be responsible for its own negligent acts. The signing party may instead understand the contract as an agreement that exempts the other party from any injury [*41] that occurs as a result of a third party. For example, in this case, the Sanislos signed a contract that was both a release and a hold harmless agreement, and a number of other entities were involved in carrying out the wish that Give Kids the World granted, including food vendors and transportation providers. The Sanislos could have understood that Give Kids the World would not be liable for the negligence of these other entities, and may not have understood that Give Kids the Worlds would not be liable for its own negligence. As established under Florida law, a specific provision that explicitly states that a party will be released and held harmless for liability for its own negligence would clarify the nature of the release so that individuals would have full knowledge of what risks they undertake by signing such a contract. There simply is no rational or logical legal reasoning that would require one to explicitly state a party will be indemnified for its own negligence as a condition of validity as is the current law, but not required to do so if that agreement also includes a release!

For these reasons, I dissent.

PARIENTE and QUINCE, JJ., concur.


States that allow a parent to sign away a minor’s right to sue

If 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

 

Florida

Florida Statute § 744.301 (3)

Florida statute that allows a parent to release a minor’s right to sue

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

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)

 

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 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

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Utah courts like giving money to injured kids. This decision does clarify somewhat murky prior decisions about the defenses provided to a ski area in Utah: there are none.

A minor was hurt during ski racing practice by hitting a mound of machine-made snow. The Utah Skier Safety Act is weak and Utah Supreme Court interpretations of the act do nothing but weaken it more. This act clarified those weaknesses and what a Utah ski area can do to protect itself from lawsuits, which is not much really. This court, not finding the act weak enough, agreed with the Utah Supreme Court and eliminated releases as a defense for ski areas in the state of Utah.

Rutherford v. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

State: Utah

Plaintiff: Philip Rutherford and Wendy Rutherford, on Behalf of Their Minor Child, Levi Rutherford

Defendant: Talisker Canyons Finance Co., LLC and ASC UTAH, LLC (The Canyons Ski Area) and the U.S. Ski and Snowboard Association

Plaintiff Claims: the machine that produced the snow mound was not functioning properly, that the Ski Resort could have warned patrons of the hazard by marking the mound or closing the trail, and that the Ski Resort did not adequately monitor the snowmaking taking place on the Retreat run that day

Defendant Defenses: release, Utah Ski Act,

Holding: For the Plaintiff

Year: 2014

Utah famously does not award money for adults who are injured; however, if a minor is injured, as a defendant, be prepared to write a big check. For such a conservative state, the judgments for a minor’s injuries can be massive. In this case, the trial court bent over backwards to allow a case by a minor to proceed even with numerous valid defenses. In all but one case, the appellate court agreed with the plaintiffs.

The minor was going to a race practice. He skied down the hill without changing his position and not turning. He hit a mound of man-made snow and was hurt. His parents sued.

The plaintiff’s sued the resort, Canyons which was identified in the case citation by two different names. The plaintiff also sued the US Ski and Snowboard Association, which were not part of the appeal, but mentioned frequently.

The defendants filed an interlocutory appeal after all of their motions of summary judgment were denied. An Interlocutory appeal is one that is made to a higher court before the lower court has issued a final ruling. The appeal is based on intermediary rulings of the trial court. The appeal can only be heard upon a limited set of rules, which are set out by each of the courts. Interlocutory appeals are rare, normally, when the decision of the lower court will force a new trial because of the rulings if the case goes to trial.

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

The first issue is the application of the Utah’s Inherent Risks of Skiing Act to the case. The trial court ruled the plaintiff was not a competitor as defined by the act. Like many state ski acts the act; a competitor assumes greater risks, and the ski area owes fewer duties to competitors. The trial court based this decision on its review of the facts and determined:

…skiing on an open run that any member of the public could ski on” and that his accident indisputably did not occur during a ski race, while skiing through gates, or while otherwise “negotiating for training purposes something that had been specifically designated as a race course

However, the plaintiffs in their motions and pleadings as well as the plaintiff’s expert witness report stated the minor plaintiff was engaged in race training and practice. The appellate court reversed the trial court’s decision on this. However, instead of holding the plaintiff was a competitor and assumed more risk; the appellate court required the trial court to determine if plaintiff’s “engagement in race training at the time of his injury is truly undisputed by the parties.”

The next issue was whether the phrase machine-made snow in the act was an inherent risk or an exemption from the risks assumed. The plaintiff’s argued the snow machine was malfunctioning and because of that the resort was negligent. The statute states:

§ 78B-4-402.  Definitions

    (b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

The appellate court agreed with the trial court because the supreme court of Utah had found the Utah act:

…does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers” but protects ski-area operators “from suits to recover for injuries caused by one or more of the dangers listed [in the Act] only to the extent those dangers, under the facts of each case, are integral aspects of the sport of skiing.

This interpretation of the act is the exact opposite of how statutes are normally interpreted and how all other courts have interpreted other state skier safety acts. Instead of providing protection, the act simply lists items the act may protect from litigation. The act is to be interpreted every time by the trial court to determine if the risk encountered by the skier in Utah was something the act my say the skier assumed.

This means most injuries will receive some money from the ski area. The injured skier can sue and the resort and its insurance company will settle for a nominal amount rather than pay the cost of going to trial to prove the injury was something that was an inherent risk as defined by the Utah’s Inherent Risks of Skiing Act.

The court as part of this analysis then looked at the phrase “inherent risk.”

The term ‘inherent risk of skiing,’ using the ordinary and accepted meaning of the term ‘inherent,’ refers to those risks that are essential characteristics of skiing–risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks.

This is a normal definition applied to inherent risk. However, the court then went on and quoted the Utah Supreme court as stating.

The court divided these risks into two categories, the first of which represents “those risks, such as steep grades, powder, and mogul runs, which skiers wish to confront as an essential characteristic of skiing.” Under the Act, “a ski area operator is under no duty to make all of its runs as safe as possible by eliminating the type of dangers that skiers wish to confront as an integral part of skiing.”

The second category of risks consists of those hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort,” such as weather and snow conditions that may “suddenly change and, without warning, create new hazards where no hazard previously existed. For this category of risks, “[t]he only duty ski area operators have . . . is the requirement set out in [the Act] that they warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront when participating in the sport of skiing.

Then the interpretation of the Supreme Court decision goes off the chart.

However, this does not exonerate a ski-area operator from any “duty to use ordinary care to protect its patrons”; “if an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside of [the Act].”

Instead of the act providing protection from a list of risks that are part and parcel of skiing, the act in Utah only provides of hazards that if not eliminated will still allow litigation. That is any injury is worth filing suit over because the cost of defending the case will exceed the cost of settling.

How does this apply in this case? The act refers to machine made snow. The complaint states the plaintiff was injured because the snow making machine was not functioning properly. There was no allegation that the snow was at issue, which is protected by the act, just the machine that makes the snow. However, this was enough for the trial court and the appellate court to say the act did not provide immunity for the ski area.

That is the defense of the tree on the side of the road scared me, so I opened the passenger-side door and knocked down the pedestrian. If the snow making machine was malfunctioning, unless it is making “bad” snow that has nothing to do with hitting a mound of snow.

The next issue is the defense of release. This part of the decision actually makes sense.

The US Ski and Snowboard Association has members sign releases. The majority of racing members of the USSA are minors, hoping to become major racers for the US. The USSA is based in Park City, Utah. Utah has always held that a parent cannot sign away a minor’s right to sue. So the USSA made its choice of law provision Colorado in an attempt to take advantage of Colorado’s laws on releases and minors and releases. (See States that allow a parent to sign away a minor’s right to sue.)

However, courts won’t and this court did not, let you get away with such a stretch. The venue and jurisdiction clause in a release must have a basis with where the defendant is located, where the activity (and as such accident) happens or where the plaintiff lives. Here the USSA is based in Park City Utah, the plaintiff lives in Utah and the accident happened in Utah; the Utah trial court and Appellate court properly held the jurisdiction and venue clause in the release was not valid.

On top of that, you need to justify why you are using a foreign state for venue and jurisdiction, in the jurisdiction and venue clause in the release. You need to state with a reasonable degree of plausibility why you are putting the venue in a certain place if it is not the location where the parties are located or the accident occurred. State in the release that in order to control litigation, the jurisdiction and venue of any action will be in the state where the defendant is located.

The release was thrown out before getting to whether a parent can sign away a minor’s right to sue, which the Utah Supreme Court has never upheld. (See States that allow a parent to sign away a minor’s right to sue.) However, the appellate court reviewed this issue and also threw the release out because Utah does not allow a parent to sign away a minor’s right to sue. (The Utah Equine and Livestock Activities Act has been amended to allow a parent to sign away a minor’s right to sue for Equine injuries.)

The court then looked at what releases are viable in the ski industry in Utah. In 90 days, the Utah Supreme Court voided a release in a ski case and then upheld a release in a ski case. (See Utah Supreme Court Reverses long position on releases in a very short period of time.) This court stated the differences where a release is void under Utah’s law for recreational skiers. “Our supreme court has interpreted this public policy statement as prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers.”

The public policy statement is the preamble of the Utah’s Inherent Risks of Skiing Act.

The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act; therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

Simply put this is an analysis of the action of the legislature, by the court, to say, the legislature gave you this, so we, the court, are going to take away releases.

In other words, the Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier who signed the release or whether the release was signed by a parent on behalf of a child.

The court explained that the Act was designed to strike a “bargain” with ski-area operators by freeing them “from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.

The court then looked at whether this release could be applied if the plaintiff was a competitive skier? (Yeah, confusing to me also.)

Following that confusing analysis this court then determined the release by a competitive skier was also invalid, contrary to what the Supreme Court had decided in Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171 P.3d 442. However, the court rationalized the analysis by saying the amendment to the ski act, which occurred before the Berry decision, but after the accident giving rise to Berry, made a competitive skier the same as a recreational skier for the purposes of the act therefore no releases were valid in Utah for skiing.

Here is the conclusion of the case.

The trial court’s determination that Levi was not engaged in race training at the time of his injury, especially in the face of the fact, apparently undisputed by the parties, that he was injured during racing practice, was improper in the context of the Ski Resort’s motions for summary judgment. The trial court correctly denied the Ski Resort’s joinder in the Ski Team’s motion for summary judgment based on the Act and correctly granted the Rutherfords’ related partial motion for summary judgment, based on the court’s determination that there were disputed issues of material fact regarding the applicability of the machine-made snow exemption. We affirm the trial court’s denial of the Ski Resort’s motion for summary judgment based on the USSA release and the court’s determination that the Colorado choice-of-law provision in the USSA release is inapplicable here. We agree with the trial court that the release, as it pertains to the Ski Resort, is unenforceable under Utah law, but base this conclusion on different grounds than the trial court.

It almost reads like it is a normal case. The court sent the issue back to the lower court, basically handing the plaintiff the decision. The only thing left to do is determine the amount.

So Now What?

It’s a kid thing in Utah. Kids get hurt the courts’ hand out money. Even the ski industry is not big enough, or organized enough, to do anything about it.

I don’t know of any other reason why this decision would come out this way.

This decision which eliminates releases as a defense for the ski area may trickle down to other recreational activities. Let’s hope not.

So we know the following about Utah and ski areas.

1.       Releases are not a valid defense unless you are racing, actually on the course for a race or practice.

2.      A competitor under the Utah’s Inherent Risks of Skiing Act is only a competitor when racing or running gates.

3.      The Utah’s Inherent Risks of Skiing Act only sets out the defenses available to a ski area if they ski area was not negligent and could not have prevented the accident or risk which caused the accident.

4.      Minor’s in Utah always win.

What do you think? Leave a comment.

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Rutherfordv. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

Rutherfordv. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

Philip Rutherford and Wendy Rutherford, on Behalf of Their Minor Child, Levi Rutherford, Plaintiffs and Appellees, v. Talisker Canyons Finance Co., LLC and ASC UTAH, LLC, Defendants and Appellants.

No. 20120990-CA

COURT OF APPEALS OF UTAH

2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

August 14, 2014, Filed

NOTICE:

THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTER.

PRIOR HISTORY: [**1] Third District Court, Silver Summit Department. The Honorable Todd M. Shaughnessy. No. 100500564.

COUNSEL: Eric P. Lee, M. Alex Natt, Elizabeth Butler, and Timothy C. Houpt, Attorneys, for Appellants.

David A. Cutt, Attorney, for Appellees.

JUDGES: JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE GREGORY K. ORME and SENIOR JUDGEPAMELA T. GREENWOOD concurred.1 DAVIS, Judge.

1 The Honorable Pamela T. Greenwood, Senior Judge, sat by special assignment as authorized by law. See generally Utah Code Jud. Admin. R. 11-201(6).

OPINION BY: JAMES Z. DAVIS

OPINION

DAVIS, Judge:

[*P1] Talisker Canyons Finance Co., LLC and ASC Utah, LLC (collectively, the Ski Resort) bring this interlocutory appeal challenging the trial court’s denial of their motion for summary judgment and the trial court’s grant of partial summary judgment in favor of Philip and Wendy Rutherford, on behalf of their minor child, Levi Rutherford (collectively, the Rutherfords). We affirm in part, vacate in part, and remand for further proceedings in accordance with this decision.

BACKGROUND

[*P2] In 2010, ten-year-old Levi Rutherford was a member of the Summit Ski Team, a ski racing club that is affiliated with the United States Ski and Snowboard Association (the USSA). The Ski [**2] Team trained primarily at the Canyons, a ski resort near Park City, Utah, with the resort’s permission and subject to the resort’s requirement that the Ski Team carry liability insurance. The Ski Team’s liability insurance was provided through its affiliation with USSA. All Summit Ski Team participants were required to become USSA members, and USSA membership required applicants to execute a release indemnifying USSA from any injury the individual may suffer in connection with his participation in USSA-associated activities, regardless of USSA’s negligence. Because of Levi’s age, his father, Philip Rutherford, executed the release on Levi’s behalf. In that agreement, the term “USSA” is defined as including, inter alia, local ski clubs and ski and snowboard facility operators.

[*P3] On January 15, 2010, Levi and his seven-year-old brother were at the Canyons to attend a Ski Team race-training session. The brothers rode a chairlift that carried them along the length of the “Retreat” ski run where the Ski Team was setting up for practice. Snowmaking machines along the Retreat run were actively making snow at this time. After exiting the chairlift, Levi and his brother skied down Retreat.2 Levi [**3] skied down the slope maintaining a racing stance and without making any turns. Near the bottom of the run, Levi fell when he collided with a mound of man-made snow that was of a different and wetter consistency than other snow on the run. Levi sustained injuries as a result of his fall.

2 It is unclear whether the Ski Team coaches instructed Levi and his brother to take a warm-up run down Retreat or whether the brothers did so of their own accord. See infra note 7.

[*P4] The Rutherfords filed a complaint against the Ski Resort and the Ski Team, seeking damages for Levi’s injuries, which they claim were caused by the defendants’ negligence. As against the Ski Resort specifically, the Rutherfords alleged that the machine that produced the snow mound was not functioning properly, that the Ski Resort could have warned patrons of the hazard by marking the mound or closing the trail, and that the Ski Resort did not adequately monitor the snowmaking taking place on the Retreat run that day.

[*P5] The parties filed several motions for summary judgment. The Ski Team submitted motions for summary judgment on the basis that Utah’s Inherent Risks of Skiing Act (the Act) precluded the Rutherfords’ claims against [**4] it because Levi was indisputably injured when he crashed into a mound of machine-made snow, an inherent risk of skiing for which ski-area operators are exempted from liability under the Act. See generally Utah Code Ann. §§ 78B-4-401 to -404 (LexisNexis 2012) (Inherent Risks of Skiing Act); id. § 78B-4-402(1)(b) (machine-made snow exemption). The Ski Team also contended that it had no duty to protect Levi from a risk inherent to skiing and that it otherwise did not owe him a general duty of care as alleged by the Rutherfords. The Ski Resort joined in the Ski Team’s motions, specifically arguing that the Act exempts the Ski Resort, as a ski-area operator, from any duty to protect Levi from the inherent risk of skiing posed by the mound of machine-made snow. The Ski Resort did not argue that any of the Act’s exemptions other than the machine-made snow exemption applied in this case. The Rutherfords moved for partial summary judgment, arguing that the Act did not bar their claims against the Ski Resort.

[*P6] The trial court rejected the Ski Team’s argument that it is entitled to protection under the Act but granted the Ski Team’s motion for summary judgment on the negligence issue, dismissing with prejudice the Rutherfords’ negligence [**5] claim against it. The trial court concluded that “the Ski Team did not owe Levi a general duty of reasonable care to protect him from harm as alleged by [the Rutherfords]” and that even assuming that it did, “given the undisputed facts in this case, no reasonable jury could find that the Ski Team breached such a duty.”3 The trial court denied the Ski Resorts’ joinder in the Ski Team’s motion for summary judgment based on the Act, ruling that the applicability of the Act and the machine-made snow exemption to the Ski Resort depended on the resolution of disputed facts, namely, whether the snowmaking equipment along Retreat was functioning properly. The trial court granted the Rutherfords’ motion for partial summary judgment based on their argument that the Act did not bar their claims against the Ski Resort.

3 The Ski Team is not a party to this interlocutory appeal.

[*P7] The Ski Resort also filed a motion for summary judgment on the basis that the USSA release that Mr. Rutherford signed on behalf of his son barred Levi’s claims. The court denied the motion based on its determinations (1) that the waiver’s Colorado choice-of- law provision “is unenforceable and . . . Utah law applies to the [**6] USSA release”; (2) that the release is unenforceable under Utah law based on the Utah Supreme Court’s decision in Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062; and (3) that even if the release was enforceable under Utah or Colorado law, Levi was not racing at the time of his injury or otherwise engaged in the activities covered by the release because the Ski Team’s practice had not yet begun. The Ski Resort petitioned for interlocutory review, which was granted by our supreme court and assigned to this court.

ISSUES AND STANDARD OF REVIEW

[*P8] The Ski Resort contends that the trial court erroneously granted the Rutherfords’ motion for partial summary judgment after finding that Levi was not engaged in race training at the time of his injury and that an exemption in the Act regarding competitive skiing did not bar the Rutherfords’ claims. See Utah Code Ann. § 78B-4-402(1)(g) (competitive-skiing exemption). The Ski Resort also asserts that the trial court’s interpretation of the Act’s machine-made snow exemption was incorrect and that, as a matter of law, summary judgment should be entered for the Ski Resort based on either the machine-made snow exemption or the competitive-skiing exemption. Last, the Ski Resort argues that the trial court erred in determining that [**7] the Colorado choice-of-law provision in the USSA release was not enforceable, that the release was not enforceable under Utah law, and that the release was nevertheless inapplicable here, where Levi was engaged in an activity not covered by the release when he was injured.

[*P9] [HN1] Summary judgment is appropriate “only when all the facts entitling the moving party to a judgment are clearly established or admitted” and the “undisputed facts provided by the moving party . . . preclude[], as a matter of law, the awarding of any relief to the losing party.” Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 24, 70 P.3d 904 (alteration in original) (citations and internal quotation marks omitted); see also Utah R. Civ. P. 56(c). “We also note that summary judgment is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994) (citation and internal quotation marks omitted). “An appellate court reviews a trial court’s legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).

ANALYSIS

I. The Distinction Between Competitive Skiing and Recreational [**8] Skiing

[*P10] [HN2] The Act exempts ski resorts from liability for injuries sustained by individuals engaged in “competitive” skiing, including injuries sustained as a result of an individual’s “participation in, or practicing or training for, competitions or special events.” See Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012).4 Here, a determination that Levi was injured while engaged in competitive, as opposed to recreational, skiing under the Act could be case-determinative.5

4 Except where otherwise noted, we cite the most recent version of the Utah Code for the convenience of the reader.

5 The applicability of the USSA release could also turn on whether Levi was injured while engaged in one of the activities specifically enumerated in the release; if he was not, then the release cannot apply, rendering irrelevant the question of the release’s enforceability under Utah or Colorado law. The release defines the covered activities as “skiing and snowboarding in their various forms, as well as preparation for, participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics” “in which USSA is involved in any way.” Because USSA employs different [**9] terminology to describe the competitive skiing activities covered by the release, a determination that Levi was not injured while competitively skiing under the terms of the Act would not necessarily foreclose a finding that he was engaged in an activity covered by the release. However, because we determine that the release is unenforceable for other reasons, see infra ¶ 30, we need not address whether Levi was injured while engaging in an activity covered by the release.

[*P11] In their complaint, the Rutherfords allege that Levi was injured during Ski Team practice, stating, “[T]he Summit Ski Team instructed Levi to ski down the Retreat run. . . . As Levi was skiing down Retreat, he crashed into [a mound of snow] and sustained serious injuries . . . .” Similarly, in the Rutherfords’ motions for partial summary judgment as to the enforceability of the Act and the USSA release, they state, “Levi was injured while participating in racing practice as a member of [the Ski Team].”6 Further, the Rutherfords’ expert witness, whose statement was submitted with the Rutherfords’ summary judgment filings, based his expert report and evaluation on the premise that Levi was engaged in race training and practice. [**10] In its response to the Rutherfords’ motions, the Ski Resort agreed that it was an undisputed fact that “Levi was injured while participating in racing practice as a member of the [Ski Team].”7

6 On appeal, the Rutherfords assert that they “never alleged that Levi was injured while ski racing” but only that he “was injured in connection with Ski Team practice,” and that it was through discovery that they learned that Levi was injured before practice started. To the extent this sentiment is contradictory to the allegations contained in the Rutherfords’ complaint, we note that [HN3] “[a]n admission of fact in a pleading is a judicial admission and is normally conclusive on the party making it.” See Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984); see also Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1197 n.6, 185 L. Ed. 2d 308 (2013) (holding that a party was bound by an admission in its answer); Belnap v. Fox, 69 Utah 15, 251 P. 1073, 1074 (Utah 1926) (overturning a finding entered by the trial court because the finding was “against and in conflict with the admission in the answer of the principal defendant”). But see Baldwin, 676 P.2d at 415 (recognizing “that an admission may be waived where the parties treat the admitted fact as an issue”).

7 The Ski Team, although not a party to this appeal, disputed in part the Rutherfords’ assertion that Levi was injured during practice, stating, “[A]lthough Levi was injured [**11] during a practice in which the [Ski Team] had intended to conduct race training, he was injured while free skiing and not while running gates.” The Ski Team’s summary judgment filings imply that there is a factual dispute as to whether a “warm-up” run can constitute part of the Ski Team’s race training. See supra note 2.

[*P12] The trial court, however, likened Levi to a recreational skier, rather than a competitive skier, and determined that Levi’s accident occurred while he was “skiing on an open run that any member of the public could ski on” and that his accident indisputably did not occur during a ski race, while skiing through gates, or while otherwise “negotiating for training purposes something that had been specifically designated as a race course.” The trial court made this ruling in the context of rejecting the Ski Resort’s argument that the USSA release is enforceable under Utah law. Thus, while the specific details in the trial court’s ruling are not entirely in conflict with the parties’ undisputed statement of fact that Levi was injured during race training, the court’s comparison of Levi to a recreational skier amounts to a rejection of the parties’ undisputed statement of [**12] fact. This ruling also implies a distinction between injuries sustained during a competition and injuries sustained during training for competition that is not made in the Act’s provision that “participation in, or practicing or training for, competitions” are all inherent risks of skiing. See Utah Code Ann. § 78B-4-402(1)(g). We conclude that the trial court improperly made a finding in the summary judgment context and that its finding is contrary to what appear to be undisputed facts. We vacate this ruling and direct the trial court to reconsider the parties’ arguments in light of the undisputed statements of fact as set forth in the Rutherfords’ and the Ski Resort’s pleadings and motion filings.8 See Staker v. Ainsworth, 785 P.2d 417, 419 (Utah 1990) ( [HN4] “Where a triable issue of material fact exists, the cause will be remanded for determination of that issue.”). We likewise leave for the trial court’s determination the question of whether Levi’s engagement in race training at the time of his injury is truly undisputed by the parties.

8 Although we often provide guidance for the trial court on remand by addressing “[i]ssues that are fully briefed on appeal and are likely to be presented on remand,” State v. James, 819 P.2d 781, 795 (Utah 1991), we do not address whether the competitive-skiing exemption precludes the Rutherfords’ [**13] claims against the Ski Resort based on the parties’ agreement that Levi was injured while engaged in race training. That argument was not presented below, nor was it sufficiently briefed on appeal. See McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶ 19, 307 P.3d 650 (determining that [HN5] “it is better to leave” a legal issue that was not addressed by the parties in briefing “for the district court to address in the first instance based on appropriate briefing by the parties” than to “endeavor to provide the district court with guidance”); cf. Medley v. Medley, 2004 UT App 179, ¶ 11 n.6, 93 P.3d 847 (declining to provide the trial court with guidance on a legal issue likely to arise on remand where the court of appeals had “no consensus on whether [it] should offer guidance . . . and, if so, what any such guidance should be”).

II. The Machine-Made Snow Exemption

[*P13] The Ski Resort next argues that the trial court erroneously denied its motion for summary judgment based on the machine-made snow exemption under the Act, particularly where the machine that produced the snow mound that Levi skied into “was indisputably making snow.” (Emphasis omitted.) [HN6] The Act identifies as an inherent risk of skiing “snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, [**14] slush, cut-up snow, or machine-made snow.” Utah Code Ann. § 78B-4-402(1)(b); see also id. § 78B-4-402(1)(d) (immunizing ski-area operators from injuries caused by “variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations”).

[*P14] The Ski Resort contends that the Rutherfords’ “allegations fall squarely into” the machine-made snow exemption given the Rutherfords’ own assertion that Levi was injured when he came into contact with a patch of wet, machine-made snow. As a result, the Ski Resort argues, the trial court “erred in ruling that a mere allegation of malfunctioning snowmaking equipment was sufficient to force a jury trial.”9

9 Because we ultimately reject the Ski Resort’s interpretation of the Act, we do not address the Rutherfords’ argument that the Ski Resort’s interpretation renders the Act unconstitutional.

[*P15] The trial court ruled,

Solely for purposes of this Motion, the existence of ongoing snowmaking is an inherent risk of skiing and a type of danger that skiers wish to confront. Among other things, plaintiff claims that the snowmaking equipment in this particular case was not functioning properly. That claim creates a question of fact as to whether skiers wish to confront [**15] this type of risk and whether that risk could be eliminated through the exercise of reasonable care.

The trial court’s ruling recognizes the principles explained in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991). In that case, our supreme court expressly rejected Snowbird Ski Resort’s argument that recovery from the resort for “any injury occasioned by one or more of the dangers listed in [the Act] is barred by the statute because, as a matter of law, such an accident is caused by an inherent risk of skiing.” Id. at 1044–45. Instead, the court held that [HN7] the Act “does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers” but protects ski-area operators “from suits to recover for injuries caused by one or more of the dangers listed [in the Act] only to the extent those dangers, under the facts of each case, are integral aspects of the sport of skiing.” Id. at 1044 (emphasis added). The court interpreted the Act as providing a non-exclusive list of dangers that must be analyzed on a case-by-case basis to determine whether a given danger is “inherent” in the sport. Id. at 1044–45 (alteration in original) (quoting Utah Code Ann. § 78-27-52(1) (current version at id. § 78B-4-402(1) (LexisNexis 2012))).

[*P16] The court explained, [HN8] “The term ‘inherent risk of skiing,’ using [**16] the ordinary and accepted meaning of the term ‘inherent,’ refers to those risks that are essential characteristics of skiing–risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks.” Id. at 1047. The court divided these risks into two categories, the first of which represents “those risks, such as steep grades, powder, and mogul runs, which skiers wish to confront as an essential characteristic of skiing.” Id. Under the Act, “a ski area operator is under no duty to make all of its runs as safe as possible by eliminating the type of dangers that skiers wish to confront as an integral part of skiing.” Id.

[*P17] [HN9] “The second category of risks consists of those hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort,” such as weather and snow conditions that may “suddenly change and, without warning, create new hazards where no hazard previously existed.” Id. For this category of risks, “[t]he only duty ski area operators have . . . is the requirement set out in [the Act] that they warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront [**17] when participating in the sport of skiing.” Id. However, this does not exonerate a ski-area operator from any “duty to use ordinary care to protect its patrons”; “if an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside of [the Act].” Id. The Clover court then applied its interpretation of the Act to the facts before it, stating that because “the existence of a blind jump with a landing area located at a point where skiers enter the run is not an essential characteristic of an intermediate run,” the plaintiff could “recover if she [could] prove that [the ski resort] could have prevented the accident through the use of ordinary care.” Id. at 1048; see also White v. Deseelhorst, 879 P.2d 1371, 1374–75 (Utah 1994) (reaffirming the approach taken by the court in Clover and concluding that summary judgment was precluded by the question of fact as to whether “an unmarked cat track on the blind side of a ridge” was a risk that the ski resort “could have alleviated . . . through the exercise of ordinary care”).

[*P18] In light of how narrowly the Clover court’s ruling suggests the inherent risk determination [**18] ought to be framed, we agree with the trial court here that summary judgment in favor of the Ski Resort is not appropriate on this claim. The trial court recognized that under the facts of this case, “the existence of ongoing snowmaking is an inherent risk of skiing and a type of danger that skiers wish to confront” but that the Rutherfords’ allegations that the equipment “was not functioning properly,” “[a]mong other things,” created questions of fact as to “whether skiers wish to confront [the] type of risk” created by malfunctioning snowmaking equipment and “whether that risk could be eliminated through the exercise of reasonable care.” Cf. Moradian v. Deer Valley Resort Co., No. 2:10-CV-00615-DN, 2012 U.S. Dist. LEXIS 116075, 2012 WL 3544820, at *4 (D. Utah Aug. 16, 2012) (affirming summary judgment in favor of a ski resort based on a provision in Utah’s Inherent Risks of Skiing Act that immunizes ski-area operators from injuries sustained by a patron’s collision with other patrons because “[t]his type of collision cannot be completely prevented even with the exercise of reasonable care, and is an inherent risk in the sport of skiing,” and rejecting the plaintiff’s speculation that the individual that collided with him was a Deer Valley employee as insufficient “to create [**19] a genuine issue of material fact necessary to defeat summary judgment”). Accordingly, we affirm the trial court’s ruling that questions of fact regarding the applicability of the machine-made snow exemption preclude summary judgment on this issue, and we likewise reject the Ski Resort’s argument that the inclusion of machine-made snow as an inherent risk of skiing in the Act is, by itself, sufficient to immunize the resort from liability in this case.10 See White, 879 P.2d at 1374 ( [HN10] “Courts cannot determine that a risk is inherent in skiing simply by asking whether it happens to be one of those listed in [the Act].”).

10 It is notable, as the Ski Resort points out in its opening brief, that the language of the Act has broadened since the issuance of Clover. See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1044 (Utah 1991). At the time Clover was decided, the Act listed “snow or ice conditions” as inherent risks. Id. [HN11] In the current version of the Act, those same risks are described as “snow or ice conditions, as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow.” See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at Utah Code Ann. § 78B-4-402(1)(b) (LexisNexis 2012)). The Ski Resort contends that this expansion [**20] supports the “practical” necessity of interpreting “the Act broadly when allegations regarding the consistency of snow are in issue” because “the consistency of the snow cannot be objectively tested, measured, retained, analyzed, photographed, or reliably documented.” That this element may be hard to prove, however, is not a persuasive reason to otherwise repudiate our supreme court’s precedent rebuffing the notion that the presence of a risk on the list in the Act is necessarily the end of the inquiry. See White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994); Clover, 808 P.2d at 1044. We likewise reject the Ski Resort’s argument that the post-Clover amendment to the statute adding the competitive-skiing exemption conflicts with the Clover analysis in a manner that “would render the statutory language nonsensical.”

III. Enforceability of the USSA Release

[*P19] To the extent our analysis of the issues raised under the Act may not be dispositive of this case on remand, we next address the parties’ arguments related to the USSA release. See State v. James, 819 P.2d 781, 795 (Utah 1991) ( [HN12] “Issues that are fully briefed on appeal and are likely to be presented on remand should be addressed by [the appellate] court.”). The Ski Resort challenges the trial court’s determination that the Colorado choice-of-law provision [**21] in the USSA release was not enforceable in this case and the court’s subsequent application of Utah law. The Ski Resort contends that the USSA release is enforceable under both Utah and Colorado law and that as a result, the release immunizes it from the Rutherfords’ claims.11 We address each argument in turn.

11 Because of the manner in which we resolve the issues under this heading, we decline to address what impact, if any, the fact that the Ski Resort is not a signatory to the USSA release may have on the applicability of the release to the Ski Resort.

A. The Colorado Choice-of-Law Provision

[*P20] The Ski Resort contends that the trial court erred in ruling that the Colorado choice-of-law provision in the USSA release was not enforceable based on the court’s determination that “Utah is the only state that has an interest in the outcome of the case.” The Ski Resort explains that USSA’s operation as a national organization justifies the need for the choice-of-law provision. It also explains that the USSA designated Colorado law because the USSA holds “more major events in Colorado than any other state” and “more USSA athletes compete in Colorado than any other state,” thereby giving Colorado [**22] “a particular interest in the outcome of this case.” [HN13] We review the trial court’s choice-of-law analysis for correctness. See One Beacon Am. Ins. Co. v. Huntsman Polymers Corp., 2012 UT App 100, ¶ 24, 276 P.3d 1156.

[*P21] [HN14] “Since Utah is the forum state, Utah’s choice of law rules determine the outcome of” whether Utah law or Colorado law applies. See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 14, 54 P.3d 1054. To determine whether the choice of Colorado law will govern our substantive interpretation of the USSA release, we must determine first whether “‘two or more states have an interest in the determination of the particular issue'” in this case and, if so, we then analyze whether Colorado has a “‘substantial relationship to the parties or the transaction'” or there is a “‘reasonable basis for the parties[‘] choice.'” Prows v. Pinpoint Retail Sys., Inc., 868 P.2d 809, 811 (Utah 1993) (quoting Restatement (Second) of Conflict of Laws § 187(2)(a) & cmt. d (Supp. 1988)).

[*P22] In Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Utah 1993), a Canadian company that conducted business throughout the United States sought to enforce a New York choice-of-law provision contained in a contract it entered into with a Utah-based business. Id. at 810–11. The Utah Supreme Court recognized that although “New York has no substantial relationship to the parties or the transaction, there is a reasonable basis for [the Canadian company’s] choosing New York law to govern the [contract]”–“to limit the number of forums in which it may be required to bring [**23] or defend an action.” Id. at 811 (internal quotation marks omitted). Nonetheless, the court concluded that “[t]he existence of that ‘reasonable basis,’ . . . [was] without effect” because “New York [had] no interest in the determination of [the] case.” Id. The court identified various “relevant contacts” that Utah had with the case and concluded that Utah was “the only state with an interest in the action.” Id. (internal quotation marks omitted). Specifically, the court noted that a “Utah plaintiff brought this suit against a Utah defendant and a Canadian defendant,” that the contract “was to be performed in Utah,” that the contract “was signed in Utah, and [that] the alleged breach and tortious conduct occurred [in Utah].” Id. In other words, without any similar relevant contacts, New York had no interest in the case for the choice-of-law provision to be enforceable. Id.

[*P23] Besides analyzing what contacts a state may have with the case, Prows does not provide much guidance for our analysis of whether Colorado has an interest in this case. Indeed, Prows appears to use the terms “interest in,” “substantial relationship,” and “relevant contacts” interchangeably. Accordingly, we look to the Restatement [**24] for guidance. See American Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186, 190 (Utah 1996) (noting that [HN15] Utah courts should apply the test “explained in Restatement of Conflict section 188” to resolve “a conflict of laws question in a contract dispute”). The Restatement lists several factors a court might consider in analyzing the significance of a state’s relationship to the parties and transaction at issue, including, “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws § 188(2) (1971).

[*P24] Here, any interest the state of Colorado may have in this case arises out of the possibility that Levi could have competed in Colorado at some point during the relevant ski season as a USSA member because USSA holds most of its competitions in Colorado and that is where most USSA athletes compete. According to the Ski Resort, “at the time they entered the contract, the parties did not know and could not have known the full geographic scope of where the [USSA] contract was to be performed.” All of these factors, however, relate to the reasonableness of USSA’s choice of Colorado law, not Colorado’s interest [**25] in or substantial relationship with the parties in this case or the transaction at issue. As dictated by Prows, USSA’s interest in having one state’s laws apply to its contracts with its members located throughout the country, and the logic behind its choice of Colorado law specifically, does not vest in the state of Colorado a “substantial relationship” or “interest in” the parties or the transaction before us. See Prows, 868 P.2d at 811. And, as in Prows, the state of Utah clearly has an interest in the determination of this case; the Rutherfords entered into the USSA release while domiciled in Utah, they remained domiciled in Utah at the time of Levi’s injury, Levi’s injury occurred in Utah, USSA is a Utah entity, and the Ski Resort’s principal place of business is in Utah. See id. Accordingly, the choice-of-law provision does not control in this case and we rely on Utah law to determine the enforceability of the release.

B. Enforceability of the USSA Release under Utah Law

[*P25] The Ski Resort argues that even if the Colorado law provision does not apply here, the USSA release is enforceable under Utah law. The trial court determined that the release was unenforceable under Utah law based on case law describing [**26] a general policy in Utah rejecting pre-injury releases signed by parents on behalf of minors and, alternatively, based on its determination that Levi was a recreational skier and pre-injury releases executed by recreational skiers are not valid under the Act. We agree with the trial court that the release, as it may apply to the Ski Resort, is unenforceable under Utah law, but we reach this conclusion based on somewhat different reasoning. See Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 ( [HN16] “[A]n appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record.” (emphasis, citation, and internal quotation marks omitted)).

1. Enforceability of the USSA Release Based on Levi’s Status as a Minor

[*P26] The trial court ruled that Utah law rejects pre-injury releases signed by a parent on behalf of a minor, rendering the USSA release invalid in Utah. The trial court interpreted Utah case law as “prevent[ing] enforcement of the USSA release,” relying specifically on one Utah Supreme Court case in which the court rejected as against public policy a pre-injury release signed by a parent on behalf of a minor as a prerequisite to the minor’s participation in a recreational horseback ride. See Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶¶ 2, 13-14, 37 P.3d 1062, superseded [**27] by statute, Utah Code Ann. § 78B-4-203(2)(b) (LexisNexis 2012), as recognized in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 21 n.43, 301 P.3d 984.

[*P27] In Hawkins, a minor was injured when she was thrown off of a horse during a guided trail ride. Id. ¶ 3. She filed suit against the company that provided the horses and trail guides based on various claims of negligence. Id. The guide company argued that a release signed by the minor’s mother prior to the horseback ride precluded her suit. Id. In addressing the parties’ arguments, the supreme court recognized that releases for liability are, in general, permitted in most jurisdictions “for prospective negligence, except where there is a strong public interest in the services provided.” Id. ¶ 9. The court recognized various standards and criteria employed in other jurisdictions to aid in “determining public policy limitations on releases” but declined to specifically adopt any one standard. Id. ¶¶ 9-10. Instead, the Hawkins court held that “[i]n the absence of controlling statutes or case law,” “general statements of policy found in statutes detailing the rights of minors and the responsibilities of guardians” demonstrate a public policy in Utah disfavoring “contracts releasing individuals or entities from liability for future injuries to [**28] minors.” Id. ¶¶ 7, 11-13. The court was also persuaded by the “clear majority of courts treating the issue” that “have held that a parent may not release a minor’s prospective claim for negligence.” Id. ¶ 10 (collecting cases). Most notably, the court adopted the holding expressed by the Washington Supreme Court that “‘[s]ince a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has authority to release a child’s cause of action prior to an injury.'” Id. ¶¶ 10, 13 (alteration in original) (quoting Scott ex rel. Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992)). The Hawkins court affirmed the trial court’s ruling that because “the general rule permitting release of liability did not apply where a parent signs the contract on behalf of a minor,” the release signed by Hawkins’s mother on her behalf was unenforceable. Id. ¶¶ 6, 13.

[*P28] Since the Utah Supreme Court’s decision in Hawkins, the statute applicable in that case–the Limitations on Liability for Equine and Livestock Activities Act (the Equine Act)–has been amended to specifically “permit[] a parent to sign a release on behalf of a minor.” See Penunuri, 2013 UT 22, ¶ 21 n.43, 301 P.3d 984; see also Utah Code Ann. §§ 78B-4-201 to -203 (LexisNexis 2012) (Equine Act); id. § 78B-4-203(2)(b) (permitting a parent to sign a release). [**29] [HN17] Our supreme court recently recognized that Hawkins remains a valid example of how to determine whether a contract offends public policy when the public policy is not clearly discernible in the applicable statutes or case law. See Penunuri, 2013 UT 22, ¶ 28, 301 P.3d 984 & n.43. The court also explained that a public policy statement arrived at in the manner undertaken in Hawkins does not take precedence over express policy language in a controlling statute. See id. (indicating that, to the extent Hawkins conflicts with the amended Equine Act, the Equine Act controls and the conclusion in Hawkins is overruled).

[*P29] Here, the Act includes a clear “legislative expression[] of public policy” regarding the specific industry and activities at issue; thus, we need not undertake a Hawkins-like public policy analysis. See Rothstein v. Snowbird Corp., 2007 UT 96, ¶¶ 11, 19, 175 P.3d 560. The public policy statement in the Act provides,

[HN18] The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers [**30] have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

Utah Code Ann. § 78B-4-401 (LexisNexis 2012). [HN19] Our supreme court has interpreted this public policy statement as prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers. Rothstein, 2007 UT 96, ¶¶ 16-17, 175 P.3d 560. And the court has outright rejected the notion that releases of liability serve the purpose of the Act–to immunize ski-area operators from liability generally–stating,

This reasoning fails to account for the Legislature’s inescapable public policy focus on insurance and ignores the reality that the Act’s core purpose is not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned [**31] by their negligence.

Id. ¶ 17.

[*P30] In other words, [HN20] the Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier that signed the release or whether the release was signed by a parent on behalf of a child. The Act does not differentiate among the “large number” of residents and nonresidents engaged in the sport of skiing that “significantly contribut[e] to the economy of this state” based on the participant’s age. Accordingly, we reject the trial court’s determination that the USSA release is unenforceable because it was signed by a parent on behalf of a minor; rather, the release is unenforceable based on the Act’s policy statement.

2. Enforceability of the USSA Release Based on Levi’s Status as a Competitive or Recreational Skier

[*P31] The trial court also determined that the USSA release was unenforceable in this case based on its determination that Levi was injured while engaging in recreational skiing, rather than competitive skiing. Utah courts have interpreted the Act’s policy statement as prohibiting pre-injury releases signed by recreational skiers, see Rothstein, 2007 UT 96, ¶¶ 3, 16, 175 P.3d 560, while permitting pre-injury releases signed by competitive skiers, see Berry v. Greater Park City Corp., 2007 UT 87, ¶¶ 18, 24, 171 P.3d 442. Here, the trial court [**32] rejected the release’s enforceability by likening Levi to the recreational skier in Rothstein.

[*P32] As previously discussed, our supreme court in Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560, explained that [HN21] the Act was enacted in recognition that the ski industry, which plays a “prominent role in Utah’s economy,” was in the midst of an “insurance crisis.” Id. ¶ 14. To achieve the Act’s goal of ensuring that ski-area operators had access to “insurance at affordable rates,” the Act prohibited “skiers from recovering from ski area operators for injuries resulting from the inherent risks of skiing.” Id. ¶¶ 13, 15. The court explained that the Act was designed to strike a “bargain” with ski-area operators by freeing them “from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.” Id. ¶ 16. Accordingly, the Rothstein court concluded that “[b]y extracting a preinjury release from Mr. Rothstein for liability due to [the ski resort’s] negligent acts, [the resort] breached [the Act’s] public policy bargain.” Id.

[*P33] However, not long before Rothstein, our supreme court in Berry v. Greater Park City Corp., 2007 UT 87, 171 P.3d 442, deemed a pre-injury release enforceable based on the type of skiing involved in that case. [**33] Id. ¶¶ 18, 24. The pre-injury release in that case was signed in favor of a ski resort by an adult prior to, and as prerequisite for, his participation in a skiercross race. Id. ¶¶ 2-3. The Berry court recognized that the vitality of Utah’s ski industry is a matter of public interest, as evidenced by the enactment of the Act, and “that most jurisdictions that permit [pre-injury] releases draw the line [of enforceability of those releases] at attempts to limit liability for activities in which there is a strong public interest.” Id. ¶¶ 12, 17. The court then applied a six-part test to determine whether skiercross racing is an activity “in which there is strong public interest.” Id. ¶¶ 12, 15 (citing Tunkl v. Regents of the Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963) (in bank)). The Berry court determined that “skiercross racing” “has simply not generated sufficient public interest either through its popularity or because of hazards associated with it to generate a call for intervention of state regulatory authority” and that it is therefore “subject to a separate analysis for the purpose of evaluating the enforceability of preinjury releases,” even though “the services provided by a business operating a recreational ski area and the services provided [**34] by a business sponsoring a competitive ski race may be covered by the provisions of the Act.” Id. ¶¶ 17-18. Accordingly, the supreme court held “that the release Mr. Berry executed in favor of [the ski resort was] enforceable.” Id. ¶ 24.

[*P34] Here, the Ski Resort asserted, and the trial court agreed, “that the critical distinction between Berry and Rothstein is that the plaintiff in Berry signed a release as a condition of participating in a competitive skiercross racing event, while the plaintiff in Rothstein was simply a recreational skier who signed a release when he purchased a ski pass.” Based on that distinction and the seemingly undisputed fact as between the Ski Resort and the Rutherfords that Levi was injured during race training, the Ski Resort argued that the USSA release was enforceable under Utah law because this case “more closely resembles Berry than Rothstein.”

[*P35] However, [HN22] the Act was amended in 2006 to expand the definition of “the sport of skiing to include participation in, or practicing or training for, competitions or special events.”12 See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012)). This amendment indicates the legislature’s intent [**35] that competitive skiing, including practicing and training for competitions, should be treated the same way as recreational skiing.13 Cf. Collins v. Schweitzer, Inc., 21 F.3d 1491, 1493-94 (9th Cir. 1994) (holding that Idaho’s similar act precludes claims brought by competitive skiers against ski resorts, particularly in light of the fact that the statute “does not distinguish between injuries suffered during racing and injuries suffered during other types of skiing”); Brush v. Jiminy Peak Mountain Resort, Inc., 626 F. Supp. 2d 139, 148–49 (D. Mass. 2009) (determining that a USSA waiver was valid under Colorado law and also concluding that a Massachusetts statute requiring ski-area operators to operate their ski areas “in a reasonably safe manner” does not impose on ski-area operators a “greater duty to racing skiers than to other, perhaps less experienced, recreational skiers” because [c]ompetitive skiers . . . have the same responsibility to avoid collisions with objects off the trail as other skiers”); Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 901 (D. Colo. 1998) (explaining that Colorado law defines “[c]ompetitor” as “a skier actually engaged in competition or in practice therefor with the permission of the ski area operator on any slope or trail or portion thereof designated by the ski area operator for the purpose of competition” (citation and internal quotation marks omitted)); Lackner v. North, 135 Cal. App. 4th 1188, 37 Cal. Rptr. 3d 863, 869, 875 (Cal. Ct. App. 2006) (holding that a ski resort has no [**36] duty to eliminate or protect a recreational skier from a collision with a participant in a snowboarding race and that the resort had no duty to supervise the race participants as they warmed up on a designated training run prior to a competition). In conjunction with Rothstein, the amendment supports the conclusion that pre-injury releases extracted by ski-area operators from competitive skiers are also contrary to public policy.

12 Although both Rothstein and Berry were decided in 2007, long after the May 1, 2006 effective date of the amendment to the Act, neither case acknowledges the amended text; the only reference to the amendment was in the Berry court’s inclusion of the 2007 supplement as part of its general citation to where the Act was codified. See Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171 P.3d 442.

13 During the Senate floor debates on the 2006 amendment to the Act, Senator Lyle Hillyard, the sponsor of the bill amending the Act, explained that the “dramatic change[s] of our skiing” industry since the Act’s initial passage required that the Act be updated to “also include[] the sports of recreational, competitive, or professional skiing so that we cover not just the sport, but also the competitive and professional part.” Recording of Utah [**37] Senate Floor Debates, 56th Leg., Gen. Sess. (Feb. 13, 2006) (statements of Sen. Lyle Hillyard). This and other proposed changes were intended “to make [the Act] more compatible with what the ski industry is now doing.” Id. (Feb. 14, 2006). Senator Hillyard also noted that “there is no intention in [the proposed 2006 amendment] to exempt the negligence of the ski resort,” clarifying, “We are just talking about the inherent risks when people go skiing. . . . It’s just bringing the statute . . . up to date and clarify[ing its] policy and so that’s what we’ve done is taken those words and given better definitions and more specificity.” Id. (Feb. 13, 2006).

[*P36] To the extent our interpretation of the Act and its 2006 amendment may seem to be in conflict with the holding in Berry, we note that the plaintiff in that case was injured in February 2001, long before the Act contained the competitive-skiing exemption. Accordingly, [HN23] because the Act does not contain a specific provision permitting the retroactive application of the 2006 amendment, we presume the Berry court abided by “[t]he well-established general rule . . . that statutes not expressly retroactive should only be applied prospectively.” In re J.P., 648 P.2d 1364, 1369 n.4 (Utah 1982) [**38] ; see also Utah Code Ann. § 68-3-3 (LexisNexis 2011) (“A provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.”). Therefore, we construe Berry as applying an older version of the Act and interpreting the Act as it existed prior to the insertion of the competitive-skiing exemption at issue in this case. As it applies to the Ski Resort, we determine that the USSA release is unenforceable because it is contrary to the holding in Rothstein, to the purpose of the Act’s 2006 amendment, and to the public policy statement in the Act, all of which reject pre-injury releases executed by competitive and recreational skiers of all ages in favor of ski-area operators.

CONCLUSION

[*P37] The trial court’s determination that Levi was not engaged in race training at the time of his injury, especially in the face of the fact, apparently undisputed by the parties, that he was injured during racing practice, was improper in the context of the Ski Resort’s motions for summary judgment. The trial court correctly denied the Ski Resort’s joinder in the Ski Team’s motion for summary judgment based on the Act and correctly granted the Rutherfords’ related partial motion for summary judgment, based on the court’s determination that there were disputed issues of material fact regarding the applicability of the machine-made snow exemption. We affirm the trial court’s denial of the Ski Resort’s motion for summary judgment based on the USSA release and the court’s determination that the Colorado choice-of-law provision in the USSA release is inapplicable here. We agree with the trial court that the release, as it pertains to the [**39] Ski Resort, is unenforceable under Utah law, but base this conclusion on different grounds than the trial court. We remand this case for further proceedings consistent with this decision.


The Iowa Supreme Court reaffirms a Permission Slip is not a release, but leaves open the argument that releases may stop a minor’s claim for negligence.

City Parks Department sued for injuries of an eight-year-old girl hit by a flying bat at a baseball game field trip.

Sweeney v. City of Bettendorf, 762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26

State: Supreme Court of Iowa

Plaintiff: Tara Sweeney, Individually, and by Cynthia Sweeney, Her Mother and Next Friend

Defendant: City of Bettendorf and Bettendorf Parks and Recreation

Plaintiff Claims: Negligence

Defendant Defenses: Release (Permission Slip), No duty owed,

Holding: Split, the permission slip was not a release however there triable issues to the defense of duty owed

Year: 2009

The city recreation department would take kids on field trips to see minor-league baseball games in other cities. The plaintiff was an eight-year-old girl who loved baseball and her mother. The minor went on several of these field trips in the past. Her mother signed the permission slip and she went off on the trip.

In the past, the participants had sat behind home plate which was protected by netting from flying objects. This time the kids were taken to bleachers along the third baseline. They were told they had to sit there and could not move.

During the game, a player lost his grip on the bat which sailed down the third baseline hitting the girl. The minor had turned to talk to her friend when she was struck. No adults were around at the time.

The plaintiffs sued for negligent. The defendant filed a motion for summary judgment citing a permission slip the mother had signed as a release and that the plaintiff had not shown a breach of duty owed to the injured minor.

The plaintiff’s opposed the motion for summary judgment arguing:

The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.

The trial court granted the motion for summary judgment based on the permission slip no evidence of a breach of duty. The plaintiff’s appealed.

Summary of the case

The court reviewed several procedural issues and then looked into releases under Iowa law. The court found the permission slip was deficient in many ways.

…the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent would be waiving all claims relating to future acts or omissions of negligence by the City. The language at issue here refers only to “accidents” generally and contains nothing specifically indicating that a parent would be waiving potential claims for the City’s negligence.

Based on the language in the permission slip the court found it could not enforce the release because it was not a release.

Next the court looked at whether being hit by a bat at a baseball game was an inherent risk of being a spectator at a baseball game. In Iowa this is called the inherent risk doctrine. (This doctrine is very similar to a secondary assumption of risk argument.) What created a difference in this issue, is the issue of whether a flying bat is an inherent risk, is a defense of the baseball team/promoter/owner or field rather than a city recreation department field trip.

In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game.

Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected.

Because the inherent risk was not one of a field trip, the court found differently than if the defense was argued by the owner of the field. The issue was not one of attending a sporting event invited by the event, but supervision of a minor child by a recreation department.

A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment.

As a negligent supervision case, the recreation department owed a different type and a higher degree of care to the minor.

Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. The gist of the plaintiffs’ claim is that a substantial cause of the injury was the supervisors’ decision to allow the children, who cannot be expected to be vigilant at all times during a baseball game, to be seated in what a jury could conclude was an unreasonably hazardous location behind third base instead of behind the safety of protective netting.

Add to this the change in sitting and the restrictions the adults placed on where the minors could sit and the court found there was a clear issue as to liability.

The third issue reviewed by the court was whether the recreation department failed to provide an adequate level of care to the minor. Here the court agreed with the recreation department. Not because the level of care was sufficient, but because the plaintiff could not prove the level of care was inadequate.

There was a dissent in this case, which argued that the risk of being hit by a bat was an inherent risk of attending a baseball game and that the permission slip was a valid release.

The case was then sent back for trial on the negligence claims of the plaintiff.

So Now What?

What is of interest is the single sentence that argues a release signed by an adult stops the claims of a minor. It was argued by the plaintiff’s as one of the ways the permission slip was invalid. However, the court did not look at the issue in its review and decision in the case.

The court’s review was quite clear on releases. If you do not have the proper language in your release, you are only killing trees. It was a stretch, and a good one, by the recreation department to argue that a document intended to prove the minor could be on a field trip was also a release of claims.

Releases are different legal documents and require specific language.

You also need to remember that defenses that are available to a lawsuit are not just based on the activity, like baseball, but the relationship of the parties to the activity. If the minor child had attended the baseball game on her own or with her parents, the Iowa Inherent Risk Doctrine would have probably prevented a recovery. However, because the duty owed was not from a baseball game to a spectator, but from a recreation department to a minor in its care, the inherent risk defense was not available.

 

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Sweeney v. City of Bettendorf, 762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26

Sweeney v. City of Bettendorf, 762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26

Tara Sweeney, Individually, and by Cynthia Sweeney, Her Mother and Next Friend, Appellants, vs. City of Bettendorf and Bettendorf Parks and Recreation, Appellees.

No. 07-0127

SUPREME COURT OF IOWA

762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26

March 13, 2009, Filed

COUNSEL: Joseph C. Creen of Bush, Motto, Creen, Koury & Halligan, P.L.C., Davenport, for appellants.

Martha L. Shaff and Edward J. Rose of Betty, Neuman & McMahon, P.L.C., Davenport, for appellees.

JUDGES: APPEL, Justice. All justices concur except Cady, J., who dissents and Streit, J., who concurs in part and dissents in part. CADY, Justice (dissenting). STREIT, Justice (concurring in part and dissenting in part).

OPINION BY: APPEL

OPINION

[*875] APPEL, Justice.

This case involves an appeal from a district court order granting the City of Bettendorf summary judgment in a negligent supervision case. Here, an eight-year-old girl was injured by a flying baseball bat at a minor league game while on a field trip sponsored by the Bettendorf Parks and Recreation Department. The district court found that a permission slip signed by the parent of the injured girl amounted to an enforceable anticipatory release of future claims against the City. The district court in the alternative ruled that the plaintiffs failed to introduce [**2] sufficient evidence to show that the City violated a duty of care owed to the plaintiffs. For the reasons expressed below, we affirm in part, reverse in part, and remand the case to the district court.

I. Background Facts and Prior Proceedings.

Eight-year-old Tara Sweeney enjoyed baseball games. She participated in field trips to Davenport, Iowa, sponsored by the Bettendorf Parks and Recreation Department to see minor league baseball games. In the past, according to Tara, the children sat in “comfy seats” behind home plate that were protected by screening.

In 2003, Tara wanted to go to another ball game. Prior to the field trip, Tara’s mother, Cynthia Sweeney, was asked to sign what was entitled a “Permission Slip,” which the Department required of all participants. The text of the “Permission Slip” was as follows:

I hereby give permission for my child Tara M. Sweeney to attend the Bettendorf Park Board field trip to John O’Donnell Stadium with the Playgrounds Program on Monday, June 30, 2003. I realize that the Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion. Failure to sign this release as is without amendment [**3] or alteration is grounds for denial of participation.

Prior to signing the “Permission Slip,” Cynthia talked with a supervisor about the trip. She was told the times of the field trip and who would be supervising Tara’s group. She then executed and returned the permission slip to the Department.

At the game, the children did not sit in the “comfy seats” behind screening as they had in the past. Instead, Tara was required by the Department to sit on bleachers or the adjacent grassy area along the third base line that was unprotected by screening or netting. Tara chose a seat in the third or fourth row of bleachers. The Department supervisors did not allow the children to move to another location in the stadium.

At a midpoint in the game, a player lost his grip on a bat. The record indicated that the bat flew a distance of about 120 feet along the third base line at a height of approximately six feet. The bat was airborne for two or three seconds before it struck Tara on the right side of her head. Prior to being struck by the bat, Tara had turned to talk to a friend.

At the time of the incident, no supervisors from the Department were in Tara’s immediate vicinity. One supervisor who viewed [**4] the incident from a distance testified that an adult in the area could possibly have done something, either trying to knock down the bat or yelling for the kids to duck. Cynthia, at her deposition, however, testified that the incident could not have been avoided had an adult been in Tara’s place.

Plaintiffs sued the City and a number of other defendants, including the baseball player involved and the teams playing the [*876] game. The plaintiffs’ claims against the City sounded in negligence.

The City filed a motion for summary judgment asserting that the permission slip constituted a waiver of the plaintiffs’ claims and that, in any event, the plaintiffs could not show a breach of any duty of care owed by the City. With respect to the permission slip, the City noted that the language specifically states that a parent realizes that the “Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion” and that “[f]ailure to sign this release” is “grounds for denial of participation.” On the issue of breach of duty, the City argued that there was nothing that the City should have done to avoid the accident.

Plaintiffs resisted and [**5] filed a cross motion for summary judgment. On the issue of waiver, the plaintiffs contended that the permission slip did not amount to a valid anticipatory release of future claims based upon the City’s negligent acts or omissions. The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.

In resisting the City’s motion for summary judgment based upon the lack of a breach of duty, the plaintiffs, in addition to testimony of lay witnesses, offered a report from Susan Hudson, a professor at the University of Northern Iowa and an expert on playground and park safety. Based on her review, Hudson found that the Department breached its duty of care toward the plaintiffs in several ways. Hudson opined that the Department breached its duty of care by: (1) not informing the Sweeneys about the nature of possible [**6] harm even though Cynthia personally inquired about the nature of the activity; (2) not anticipating the known and foreseeable harm that could occur by not paying attention to the selection of seating; (3) not providing direct instructions to the children about paying attention to the possibility of bats and balls flying into the bleacher area; and (4) not providing direct supervision for children under their care.

The district court granted the City’s motion for summary judgment. The district court found that the permission slip constituted a valid waiver of plaintiffs’ claims. In the alternative, the district court found that the plaintiffs did not present sufficient evidence to establish a breach of duty owed to them. Plaintiffs appealed.

II. Direct vs. Interlocutory Appeal.

At the outset, there is a question of whether this case presents a direct appeal or is interlocutory in nature. [HN1] A direct appeal is heard as a matter of right, while this court has broad discretion to consider whether to hear an interlocutory appeal. Iowa R. App. P. 6.1(4). The central issue is whether an appeal of a district court order which dismisses all claims against one party in a negligence action involving [**7] multiple defendants is direct or interlocutory.

In Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732 (Iowa 2008), we considered this question. In Buechel, we noted that under our comparative fault statute, fault sharing cannot occur with a defendant who is no longer a party to the litigation through grant of summary judgment. Id. at 735; Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 863 (Iowa 1994). As a [*877] result, the issues in the motion for summary judgment had impact on the issues of liability against the remaining defendants, are not severable, and are therefore interlocutory in nature. Buechel, 745 N.W.2d at 735. Nonetheless, as in Buechel, we exercise our discretion to treat the notice of appeal here as an application for interlocutory appeal, grant the application, and consider the underlying merits. Id. at 736.

III. Standard of Review.

[HN2] We review a district court’s order on a motion for summary judgment for correction of errors at law. Ratcliff v. Graether, 697 N.W.2d 119, 123 (Iowa 2005). [HN3] Summary judgment is appropriate when the moving party shows there is no genuine issue of material fact. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). Summary judgment should not [**8] be granted if reasonable minds can differ on how a material factual issue should be resolved. Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa 2004).

IV. Discussion.

A. Permission Slip as Anticipatory Release of Claims of Negligence. This case involves an exculpatory provision contained in a permission slip signed by the parent of a minor child in connection with recreational activities sponsored by a municipality. 1 The validity of exculpatory provisions which release future claims in connection with recreational activities is a topic that has been thoroughly explored in the academic literature. See, e.g., Mary Ann Connell & Frederick G. Savage, Releases: Is There Still a Place for Their Use by Colleges & Universities?, 29 J.C. & U.L. 579 (2003); Mark Seiberling, “Icing” on the Cake: Allowing Amateur Athletic Promoters to Escape Liability in Mohney v. USA Hockey, Inc., 9 Vill. Sports & Ent. L.J. 417 (2002). The academic commentators note courts considering such exculpatory provisions deal with the inherent tensions between the law of torts, which generally requires parties to be responsible for their acts of negligence, and the law of contracts, which allows a competent party to make his [**9] or her own agreements. Connell & Savage, 29 J.C. & U.L. at 580; Seiberling, 9 Vill. Sports & Ent. L.J. at 428.

1 [HN4] While many cases appear to use the terms interchangeably, an exculpatory provision is similar but not identical to an indemnity provision. An indemnity provision ordinarily allocates risks of third party losses among parties to a contract. In an indemnity context, at least one party remains liable for the third party losses. The victim thus still has a source of recovery. An exculpatory provision, however, does not allocate risk between responsible parties but eliminates liability all together. Cathleen M. Devlin, Indemnity & Exculpation: Circle of Confusion in the Courts, 33 Emory L.J. 135, 170-71 (1984).

The early Iowa cases dealing with exculpatory provisions involve real estate contracts. As early as 1921, we considered the effect of a provision in a real estate lease that provided that in no case should the lessor be liable for damage to the property. Oscar Ruff Drug Co. v. W. Iowa Co., 191 Iowa 1035, 181 N.W. 408 (1921). Among other things, we noted that the clause in the lease was couched in general terms and did not specifically exempt the lessor from liability for [**10] its own negligent acts. Id. at 1042, 181 N.W. at 411. As a result, we held that the lease did not release the lessor from damages resulting from the lessor’s own negligence. Id. at 1043, 181 N.W. at 412.

More than thirty-five years later, we considered the effect of provisions in a real estate lease which the tenant claimed relieved the tenant from liability for a fire that was allegedly caused by its own negligence. Sears, Roebuck & Co. v. Poling, [*878] 248 Iowa 582, 81 N.W.2d 462 (1957). The lease in Sears, among other things, obligated the tenant to keep the premises in good condition, “loss by fire . . . excepted.” Id. at 586, 81 N.W.2d at 464. While this contractual provision might have had a bearing on fire losses not caused by the tenant’s negligence, we held that the general exculpatory language did not immunize the tenant from liability for damage to the landlord’s premises caused by its own negligence. Id. at 589, 81 N.W.2d at 466. In reaching this determination, we cited with approval an annotation stating that [HN5] “broad exculpatory provisions” would rarely immunize a defendant for acts of affirmative negligence. Id. at 588, 81 N.W.2d at 465 (citation omitted). We further cited with [**11] approval Oscar Ruff Drug and cases from other jurisdictions holding that contract provisions will not be held to relieve a party of liability for its own negligence unless the intention to do so is clearly expressed. Id. at 591-92, 81 N.W.2d at 467-68; see Oscar Ruff Drug, 191 Iowa at 1035, 181 N.W.2d at 408; see also Fields v. City of Oakland, 137 Cal. App. 2d 602, 291 P.2d 145, 149 (Cal. Ct. App. 1955); Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185, 190 (N.C. 1953); Carstens v. W. Pipe & Steel Co., 142 Wash. 259, 252 P. 939, 941 (Wash. 1927).

Following Sears, we decided Baker v. Stewarts’ Inc., 433 N.W.2d 706 (Iowa 1988), a case outside the real estate setting. In Baker, we considered the validity of a document signed by a plaintiff who claimed that hair straightening products applied to her scalp at a cosmetology school produced subsequent baldness. Baker, 433 N.W.2d at 707. The document stated in relevant part, “I will not hold the Stewart School, its management, owners, agents, or students liable for any damage or injury, should any result from this service.” Id.

In Baker, we held that this document did not amount to an anticipatory release of future claims based upon negligent acts or omissions of the professional [**12] staff of a cosmetology school because a release of such claims would not be apparent to a casual reader. Id. at 709. We cited Sears and dicta in the indemnity case of Evans v. Howard R. Green Co., 231 N.W.2d 907, 916-17 (Iowa 1975), for the proposition that [HN6] general exculpatory provisions do not cover the negligence of a party unless the intention to do so is clearly expressed. Id. In other words, the general exculpatory provision in Baker, which stated that the customer would not hold “management, owners, agents or students liable for any damage or injury,” was insufficient to release the defendant from liability for the negligent acts of its professional staff. Id.

In contrast, in Huber v. Hovey, 501 N.W.2d 53, 56 (Iowa 1993), we held that a document signed by a spectator to an auto race did amount to an enforceable anticipatory release of future claims based on negligent acts or omissions of a party. In Huber, the document in question emphasized that it was a “covenant not to sue” and that it “releases” the promoter “from all liability . . . [for] all loss or damage, and any claim . . . on account of injury . . . whether caused by the negligence of the releasees or otherwise. . . [**13] .” 501 N.W.2d at 54. We distinguished this language from the sort utilized in Baker, noting that the document specifically indicated that it was a release of claims caused by the negligence of one of the parties. Id. at 56; see also Grabill v. Adams County Fair & Racing Ass’n, 666 N.W.2d 592 (Iowa 2003).

The permission slip in this case is much closer to the document in Baker than in Huber. As in Baker, the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent [*879] would be waiving all claims relating to future acts or omissions of negligence by the City. Baker, 433 N.W.2d at 707. The language at issue here refers only to “accidents” generally and contains nothing specifically indicating that a parent would be waiving potential claims for the City’s negligence. See Alliant Energy-Interstate Power & Light Co. v. Duckett, 732 N.W.2d 869, 878 (Iowa 2007) (holding a utility tariff that released utility from “all claims, demands, costs, or expenses for injury . . . or damage” was not sufficient to release utility from its own negligent acts). As noted in a recent best seller, [HN7] the term “accident” normally means “unpreventable [**14] random occurrences.” See Marc Gernstein with Michael Ellsberg, Flirting with Disaster: Why Accidents are Rarely Accidental 3 (2008). The general language in this permission slip simply does not meet the demanding legal standards of our Iowa cases.

While we have not previously considered the effect of exculpatory provisions in the specific context of sponsored recreational activities, we see no basis for departing from the BakerHuber principles in this context. The cases from other jurisdictions demonstrate the reluctance of courts to provide defendants who sponsor recreational activities a more lenient framework for analyzing exculpatory clauses seeking to limit liability for the sponsors’ own negligence. Several state courts in a recreational context have adhered to a bright-line test, requiring that the specific words negligence or fault be expressly used if an exculpatory provision is to relieve a defendant from liability for its own negligent acts or omissions. See Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337 (Mo. 1996) (noting general exculpatory language releasing “any . . . injuries” and “all claims” does not suffice to release party of its own negligence, because [**15] such language creates a latent ambiguity in exculpatory contracts); Geise v. Niagara County, 117 Misc. 2d 470, 458 N.Y.S.2d 162, 164 (Sup. Ct. 1983) (holding words “fault” or “neglect” must be used to bar claim for party’s own negligence).

Other courts in the context of recreational activities have not required magic words, but have imposed a demanding requirement that the intention to exclude liability for acts and omissions of a party must be expressed in clear terms. Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291, 1295 (Ariz. Ct. App. 1990) (requiring intention to immunize for negligent acts be clearly and explicitly stated); Turnbough v. Ladner, 754 So. 2d 467, 470 (Miss. 1999) (finding general exculpatory provision inadequate and noting release of acts of a party’s own negligence must be expressed in “specific and unmistakable terms”); Gross v. Sweet, 49 N.Y.2d 102, 400 N.E.2d 306, 309-10, 424 N.Y.S.2d 365 (N.Y. 1979) (noting that while the word “negligence” need not specifically be used, words conveying a similar import must appear). 2 The approach of these cases is [*880] consistent with the approach in Iowa exculpatory clause cases generally. See Baker, 433 N.W.2d at 709 (requiring a clear and unequivocal expression). We see no reason [**16] to relax from the approach in Baker merely because this case involves a recreational activity.

2 Even in these jurisdictions, the better practice is to expressly use the term “negligence” in the exculpatory agreement. See Swartzentruber v. Wee-K Corp., 117 Ohio App. 3d 420, 690 N.E.2d 941, 945 (Ohio Ct. App. 1997) (noting that the “better practice” would be to expressly include the word “negligence”); Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654, 663 (Wis. 1991) (refusing to adopt a magic words test, but noting the use of term “negligence” would be “very helpful”); see also Steven B. Lesser, How to Draft Exculpatory Clauses That Limit or Extinguish Liability, 75 Fla. B.J. 10, 14 (Nov. 2001) (noting from a practical standpoint, utilization of the word “negligence” should increase the likelihood of enforcement); Kevin G. Hroblak, Adloo v. H.T. Brown Real Estate, Inc.: “Caveat Exculpator”–An Exculpatory Clause May Not Be Effective Under Maryland’s Heightened Level of Scrutiny, 27 U. Balt. L. Rev. 439, 469 (1998) (noting a risk adverse drafter should use the word “negligence” in all exculpatory clauses).

In looking at cases involving recreational activities, language similar to that used by the City in this case has been [**17] found insufficient to support a release of a party’s own negligence. For example, in Doyle v. Bowdoin College, 403 A.2d 1206, 1208 (Me. 1979), the court found the use of the term “accidents” insufficient to provide a basis for release from a party’s own negligence. See Hroblak, 27 U. Balt. L. Rev. at 471 (noting drafter should not seek to release party from any “accidents” because the term is ambiguous and insufficient to release own negligent acts); see also O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446-47 (Fla. Dist. Ct. App. 1982) (finding language stating company held harmless from liability and from risks inherent in riding activity not sufficient to release its own negligence); Calarco v. YMCA of Greater Metro. Chicago, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 272-73, 103 Ill. Dec. 247 (Ill. App. Ct. 1986) (holding provision to hold YMCA “free from any and all liability” and discharging “any and all rights and claims for damages” not sufficient to relieve YMCA of liability for its own negligence).

For the reasons expressed above, we hold that the language in the permission slip in this case does not constitute an enforceable anticipatory release of claims against the City for its negligent acts or omissions in [**18] connection with the field trip. 3

3 As a result of our disposition of the release issue, we do not consider four other arguments advanced by the plaintiffs. First, we do not consider whether the failure to specifically name the City in the release prevents its enforcement by the City. Second, we also do not address the question of whether a parent may release the claims of a minor for the negligent acts or omissions of a sponsor of recreational events. The case law from other jurisdictions is divided on this issue. Compare Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 389-90 (N.J. 2006), with Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (Ohio 1998). See generally Doyice J. Cotten, Sarah J. Young, & Sport Risk Consulting, Effectiveness of Parental Waivers, Parental Indemnification Agreements, & Parental Arbitration Agreements as Risk Management Tools, 17 J. Legal Aspects Sport 53 (2007). Third, we do not consider the implications on this case, if any, of Iowa Code section 599.2 (2003), which allows a minor to disaffirm contracts with certain exceptions. Fourth, we do not consider the general question of whether public policy voids a contract provision releasing claims of negligence [**19] under the circumstances presented here. See Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 446-47 (Cal. 1963).

B. Application of Inherent Risk Doctrine to Defeat Negligent Supervision Claim. The City, while acknowledging that it owed Tara a duty of care, seeks to limit that duty through the application of the inherent risk doctrine. The City claims that the risk of being injured by flying bats and balls when seated outside screening is unavoidable as it is an inherent part of attending a baseball game. As a result, the City claims, it had no duty to protect Tara from the subsequent injuries. [HN8] The question of the proper scope of legal duty is a question of law to be determined by the court. J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa 1999); Leonard v. State, 491 N.W.2d 508, 511-12 (Iowa 1992).

In support of its position, the City cites Anderson v. Webster City Community School District, 620 N.W.2d 263 (Iowa 2000). In Anderson, a seven-year-old boy broke his leg while sledding during a noon recess at his elementary school. [*881] Anderson, 620 N.W.2d at 265. The jury instruction in that case noted that some risks naturally attend participation in recreational activities [**20] and that the sponsor has a duty only to protect a participant from unreasonable risks of harm. Id. at 266. The Anderson court noted that the instruction was similar to the “primary assumption of risk doctrine” which, while no longer utilized in Iowa, was an alternative expression for the proposition that a defendant is not negligent or owed no duty for risks inherent in certain activities. Id. at 267.

The City also cites Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974), in support of its motion for summary judgment. In Dudley, a plaintiff baseball player, who was hit by a foul ball, claimed that the college should have had dugouts or netting protecting the participants from the playing field. 219 N.W.2d at 485. We rejected that claim, noting that the duty that was owed extended only to those risks that were unreasonable. Id. at 486-87. “[P]layers in athletic events accept the hazards which normally attend the sport.” Id. at 486. As a result, we held that the injured player did not have a cause of action against the coach and college. Id. at 487. In sum, the City argues that it did not breach its duty of care because being struck by a bat is an inherent risk of attending a [**21] minor league baseball game.

Plaintiffs view the case differently. They distinguish Anderson on the ground that the City had a much greater control over the activities of the children in this case. They note that the City determined that Tara would sit on bleachers unprotected by screening and that the City chose not to follow accepted recreational and leisure standards for the proper safety and supervision of children by failing to ensure direct supervision and by failing to warn them and their parents of the danger of flying bats when sitting in unprotected areas. The plaintiffs further note that in Anderson, whether the defendants unreasonably failed to protect the plaintiff was a question for the jury to decide.

The plaintiffs assert Dudley is inapposite. They see Dudley as a variant of the limited liability rule which relieves baseball park owner-operators of responsibility for flying objects. Here, however, the question on appeal relates not to the duty of the owner-operator of a baseball facility, but to the duty of the City to properly supervise Tara while attending the game. The City, plaintiffs argue, directed Tara to sit in an unprotected area and then did not provide adequate [**22] direct supervision in that area. Further, plaintiffs argue that their expert provided a sufficient basis for a jury to determine that the City acted unreasonably under all the facts and circumstances.

In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game. See generally James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979). Claims against owners or operators for injuries incurred by flying bats and balls that have been decided after the movement toward comparative negligence tend to characterize nonliability as based on a “limited duty” theory. See, e.g., Vines v. Birmingham Baseball Club, Inc., 450 So. 2d 455, 456 (Ala. 1984) (Torbert, C.J., concurring specially); Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1015-16 (Utah 1995); Perez v. McConkey, 872 S.W.2d 897, 900 (Tenn. 1994); Daniel E. Wanat, Torts and Sporting Events: Spectator [*882] & Participant Injuries–Using [**23] Defendant’s Duty to Limit Liability as an Alternative to the Defense of Primary Implied Assumption of Risk, 31 U. Mem. L. Rev. 237 (2001).

Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected. Quinn v. Recreation Park Ass’n, 3 Cal. 2d 725, 46 P.2d 144, 146 (Cal. 1935); Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 424 N.E.2d 531, 533-34, 441 N.Y.S.2d 644 (N.Y. 1981). In Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989), we adopted a version of the limited duty rule in a premises liability case with respect to misthrown balls. 4

4 There has been some resistance to inherent risk or the limited duty doctrine. For example, Professor James noted long ago that the primary assumption of risk doctrine, of which the limited duty rule is a variant, provides “an exceptional curtailment of defendant’s [**24] duty below the generally prevailing one to take care to conduct oneself so as not to cause unreasonable danger to others.” Fleming James, Jr., Assumption of Risk, 61 Yale L. J. 141, 168 (1952). More recently, a few judges have directly challenged the limited duty rule. See Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 185 N.J. 70, 881 A.2d 700, 710-13 (N.J. 2005) (Wallace, J., concurring), superseded by statute, New Jersey Baseball Spectator Safety Act of 2006, N.J. Stat. Ann. § 2A:53A-43-48 (2006); Akins, 424 N.E.2d at 536 (Cooke, J., dissenting). There appears to be a move within the legal profession away from the rule. See Restatement (Third) of Torts: Apportionment of Liability § 3 cmt. c, illus. 6, at 32-33 (2000) (replacing limited duty with comparative fault in cases involving injury to baseball spectators). In addition, recent academic commentary has challenged the doctrine. David Horton, Rethinking Assumption of Risk & Sports Spectators, 51 UCLA L. Rev. 339, 366 (2003) (noting increasingly hazardous nature of stadium seating in light of increased pitching speeds, greater batting capability, and stadium design that places patrons in a zone of danger); Gil Fried & Robin Ammon, Baseball [**25] Spectators’ Assumption of Risk: Is it “Fair” or “Foul”?, 13 Marq. Sports L. Rev. 39, 61 (2002) (same). There is no occasion on this appeal to revisit the application of inherent risk or limited duty doctrine in the context of a premises liability claim.

This case, however, does not involve a premises liability claim against the owner or operator of a baseball stadium. Instead, the issue is whether the district court erred in granting summary judgment in a negligent supervision case against the City based on its view that the injury was due to “an inherent risk in attending the baseball game.”

We conclude that the district court erred in granting summary judgment based on inherent risk. [HN9] A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment. See, e.g., [**26] Stanley v. Bd. of Educ., 9 Ill. App. 3d 963, 293 N.E.2d 417, 422 (Ill. App. Ct. 1973) (holding alleged negligent supervision of children in thrown bat case raises jury question in light of expert opinion); Cook v. Smith, 33 S.W.3d 548, 553-54 (Mo. Ct. App. 2000) (noting acceptance of custody and care of minor child creates duty of care independent of premises liability); Havens v. Kling, 277 A.D.2d 1017, 1018, [*883] 715 N.Y.S.2d 812 (N.Y. App. Div. 2000) (holding parents of eleven-year-old inexperienced golfer did not have claim against twelve-year-old golfer who hit son on the head with club, but did have claim against golf shop and event sponsor for negligent supervision); Gordon v. Deer Park Sch. Dist. No. 414, 71 Wn.2d 119, 426 P.2d 824, 828 (Wash. 1967) (finding possible negligence claim where bat slips from hands of teacher).

Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16-17 (Iowa 2000). The gist of the plaintiffs’ claim is that a substantial cause of the injury was the supervisors’ decision to allow the children, who cannot be expected to be vigilant [**27] at all times during a baseball game, to be seated in what a jury could conclude was an unreasonably hazardous location behind third base instead of behind the safety of protective netting. From this perspective, the inevitable exposure of the children to flying balls and bats that arises from sitting outside the range of protective netting does not provide a complete defense, but instead is a factor for a jury to consider in determining whether the acts and omissions of the supervisors were reasonable under all the facts and circumstances. As in Anderson, moreover, [HN10] whether a defendant has breached its duty of care under all the circumstances is ordinarily a jury question, particularly where the plaintiff has offered expert testimony indicating that the defendant did not follow customary practices for the safety of children when engaged in recreational activities. Anderson, 620 N.W.2d at 266-67.

As a result, the City is not entitled to summary judgment with respect to the specifications of negligence in the plaintiffs’ expert report on the ground of “inherent risk” or the “limited duty doctrine.” [HN11] The extent to which an injured party knowingly engages in risky behavior in a negligent [**28] supervision case is a factor for the fact finder to consider in the framework of comparative fault.

C. Cause in Fact Challenge to Claim of Lack of Direct Supervision. The City also advances an alternate argument in partial defense to some aspects of the plaintiffs’ negligent supervision claim. To the extent that the plaintiffs’ case rested on the failure to have adult supervision in close proximity to Tara when the children were seated along the third base line, the City argued that such direct supervision would not have made a difference. The City’s argument amounts to a claim that even if the City breached its duty toward Tara by not providing adequate adult supervision, that breach of duty was not the cause of Tara’s injuries.

We have held that [HN12] causation has two components: cause in fact and legal cause. Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007). Cause in fact is a but-for test, while determination of legal or proximate cause reflects a policy judgment that the cause of the accident is not so remote or attenuated that liability should not be imposed. Id. Ordinarily, determination of cause in fact is a question for the fact finder to determine. Id.

Conceding for purposes of summary [**29] judgment that the City had a legal duty to reasonably supervise its charges, and further assuming that the City breached its duty of reasonable care by failing to provide direct supervision to the children in a ratio of one adult for ten children as suggested by plaintiffs’ expert, the alleged breach of duty cannot satisfy the “but-for” element of proximate cause for Tara’s injuries [*884] as a matter of law. Although whether a breach of duty was a cause in fact of injuries sustained by the plaintiff is ordinarily a fact question, the evidence in this case, even when viewed in the light most favorable to the plaintiff, does not establish a triable issue.

[HN13] In order to establish cause in fact, the plaintiff need not show certainty or inevitability, but the plaintiff must offer something beyond mere conjecture and speculation. Easton v. Howard, 751 N.W.2d 1, 6 (Iowa 2008) (quoting George v. Iowa & S.W. Ry. Co., 183 Iowa 994, 997-98, 168 N.W. 322, 323 (1918)). A plaintiff must offer sufficient evidence for a fact finder to conclude by a preponderance of evidence that the injuries that occurred would likely have been avoided absent the breach of duty. Mere guesswork about what might have occurred [**30] is not enough.

Here, the evidence simply is not sufficient to allow a reasonable fact finder to conclude that in all likelihood the injuries to Tara would have been avoided if the City would have provided the direct adult supervision as urged by plaintiffs’ expert. Even if the City provided direct supervision in the ratio of one adult for every ten children, there no is reason to believe that an adult supervisor would likely have been able to knock down the bat or warn Tara effectively to avoid injury.

In order to block the flying bat, the supervisor would have had to have seen the bat leave the hands of the batter and would have had to have sufficient presence and verve to thrust himself or herself into harm’s way to knock down the projectile. This scenario is improbable enough, but there is also no reason to believe that a supervisor would have been sitting in sufficiently close proximity to be physically able to knock down the bat. In short, the City could have met the plaintiffs’ expert’s standard for direct supervision without affecting the outcome of this tragic affair.

Perhaps realizing the difficulties of persuading a fact finder that a fortuitous courageous block would have occurred [**31] but for the breach of duty, the plaintiffs fall back on a warning theory. While an adult seated in the vicinity of Tara would have been in a position to provide a louder and more direct warning to her than a supervisor at a greater distance, a reasonable fact finder could not conclude that the accident would have likely been avoided if there was direct supervision as suggested by plaintiffs’ expert. The errant bat in this case did not fly like a helicopter seed dropping from some tree, but rapidly ripped through the air at a low elevation to its unhappy destination. Under these facts, it is anyone’s guess as to whether a sharp verbal warning, even if immediately given, would have done the job. We therefore hold that plaintiffs have failed to generate a fact question on the proposition that enhanced direct supervision would have provided sufficient warning to Tara to avoid the injuries.

Our ruling on the issue of cause in fact is consistent with the case law in a number of other jurisdictions that have considered the issue in the context of flying balls and bats. 5 Further, our decision, though disappointing perhaps, will not come as a total shock to the plaintiffs. Tara’s mother testified [**32] in this case that there was nothing a supervisor sitting in the vicinity could have done to avoid Tara’s injuries. [*885] We do not regard Tara’s mother’s testimony as a binding admission, but the observation is obviously consistent with our conclusion that the evidence does not establish a triable issue of cause in fact on the ground of lack of direct supervision. Cf. Meyer v. Mulligan, 889 P.2d 509, 516 (Wyo. 1995) (noting that lay people are generally not competent to pass judgment on legal questions, including cause).

5 See, e.g., Benedetto v. Travelers Ins. Co., 172 So. 2d 354, 355 (La. Ct. App. 1965) (finding no amount of supervision could have altered manner in which bat was thrown); Lang v. Amateur Softball Ass’n of Am., 1974 OK 32, 520 P.2d 659, 662 (Okla. 1974) (finding no triable issue in wild pitch case where it was not reasonably apparent that injuries suffered were caused by wrongful act).

V. Conclusion.

The permission slip in this case did not release the City from alleged acts of future negligence. Further, the doctrine of inherent risk does not provide a basis to defeat the plaintiffs’ theories of negligence in this case. To the extent the plaintiffs argue that the City breached its duty [**33] of care by failing to provide direct supervision to the children once they were seated along the third base line at the ball park, we conclude that the plaintiffs failed as a matter of law to adduce sufficient evidence to raise a triable issue. To this extent, the City is entitled to summary judgment in this case. As a result, the district court’s grant of summary judgment is affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Cady, J., who dissents and Streit, J., who concurs in part and dissents in part.

CONCUR BY: STREIT (In Part)

DISSENT BY: CADY; STREIT (In Part)

DISSENT

CADY, Justice (dissenting). STREIT, Justice (concurring in part and dissenting in part).

I respectfully dissent. My departure from the decision of the majority is based on two principal reasons, both tied by a common thread. This common thread is woven with the clear understanding that a baseball game–America’s pastime–presents a known, but acceptable, threat of harm to spectators. This threat, of course, comes from baseballs and, on very rare occasions, bats or broken pieces of bats that enter the spectator area from the playing area. While these objects become coveted possessions [**34] for spectators of all ages, they are at the same time an inherent danger of attending the game. This danger is the basis for the lawsuit in this case, which I believe should be thrown out by a call made with relative ease.

I. Release of Liability.

First, I believe the release of liability signed by the parents of the child hit by the baseball bat in this case was valid and prevents the parents from suing. The majority, of course, concludes the release was insufficient to cover the particular claim of negligent supervision brought against the city parks and recreation department, who organized the field trip to the ballgame. I agree the release would not cover the full range of injuries a child could reasonably be expected to encounter during a supervised field trip to a professional baseball park, but I believe it at least covered the very obvious and common danger associated with watching a baseball game–the very purpose of the field trip–that any reasonable parent would have understood and contemplated when deciding to permit their child to attend a baseball game.

The majority seems to construct a rule that invalidates all but the most sophisticated and carefully drawn releases by [**35] focusing on the general principle of law that agreements to release a party from liability for his or her own negligence are disfavored. Yet, this broad principle is not a working rule of law and has given way to the more pragmatic, specific rule that a release must clearly identify to a casual reader those claims or injuries covered under the release. Baker v. Stewarts’ Inc., 433 N.W.2d 706, 709 (Iowa 1988). Importantly, a release does not need to specifically mention a party’s “own negligence” to be valid. In proper context, [*886] most releases could only have meaning as applied to common claims of negligence. Instead, the inclusion of such language merely helps remove any doubt that the release intended to cover any circumstance under the umbrella of negligence. Yet, the critical inquiry is whether the incident claimed to be covered under the release was unambiguously identified to a casual reader.

For example, in Baker a release of “liability for any damage or injury” between a cosmetology school and a patron of services performed by students at the school did not cover an injury to the hair and scalp of the patron that was the subject of a negligence claim for liability against the professional [**36] staff who supervised the student services. Id. The language of the release failed to “clearly and unequivocally” express to a casual reader of the release that it included professional staff in the release of liability. Id. We did not totally invalidate the release as too vague due to the absence of any specific mention of negligence, but only found the language of the release was not broad enough to include professional staff. Id. A patron of the cosmetology school would not understand that he or she was releasing the professional staff from liability by casually reading the release. Id. Similarly, in Huber v. Hovey, 501 N.W.2d 53, 54 (Iowa 1993), we were presented with a release of “all liability” for any claim of injury “whether caused by the negligence of the releasees or otherwise.” The release was between a racetrack and spectators who entered the pit area of the racetrack, and we found the release did cover a spectator who entered the pit area and was injured when a wheel of a race car came off and struck the spectator. Id. at 56-57. In response to the argument that the language of the release did not sufficiently identify the accident, we found the release covered the claim [**37] because it clearly identified the parties to the release, including spectators who entered the pit area, and clearly covered personal injuries to spectators who entered the pit area. Id. Under the circumstances, a casual signer of the racetrack release would understand that the injuries referred to in the release included injuries associated with car racing that could be expected to occur in the pit area. We did mention the release specifically covered injuries caused by the track’s own negligence, but only to further clarify that the release covered a broad range of personal injuries to spectators. The use of the term “negligence” in the release only helped clarify the broad type of injuries covered. It was not a predicate to covering any injury.

Overall, the Baker-Hovey approach considers the context and subject of a release between the parties and the language expressed in the release and looks to consider whether a casual signer would understand the injury or incident at issue was unambiguously covered. In this case, the language of the release may not cover a broad range of injuries that could be sustained by children who go on a field trip to a baseball park. For example, the [**38] release did not express the notion that injuries during the transportation of the children would be covered. The subject of the release was a baseball game, and a parent signing the release would likely not have transportation in mind without some specific identification or reference to the transportation component of the field trip. However, the release did have meaning, and that meaning was the city would at least not be liable for those inherent injuries known to occur to spectators of a baseball game–the subject of the release. The release clearly identified the baseball stadium as the subject of the trip and stated the city would not be “liable for any accidents.” At a minimum, any parent [*887] signing the release would understand that those accidents known to occur to spectators were contemplated under the release of liability.

II. No Duty of Care.

There is a second, more fundamental, reason the case should be dismissed. This reason is the city had no duty to protect the children at the baseball park from the inherent risks of the game of baseball as the children sat in their seats watching the game being played.

I completely agree the city had a duty to supervise the children throughout [**39] the field trip and to generally protect the children from reasonably foreseeable harm. However, the creation of a duty of care and the scope of the duty created are always questions of law. Courts have drawn a line on the scope of a duty of care to protect spectators of a baseball game at a baseball park. That line is roughly drawn in an area behind home plate. This area is where spectators need the most protection from foul balls, or perhaps an occasional wild throw. Protection is most needed in this area because the risk of harm to spectators is most foreseeable in this area of a baseball park. Thus, courts have consistently imposed a duty of care on baseball parks to protect spectators from balls entering the spectator area, and baseball parks have responded to this duty by installing protective netting in the area behind home plate.

Of course, protective netting could easily be installed around the entire perimeter of the playing field, which would provide a consistent level of full protection for all spectators in all areas of the baseball park. Yet, courts have almost universally rejected such a notion as a legal duty, driven largely by public policy, which is normally a major [**40] component in deciding to create any duty of care. Thus, baseball parks have only a limited duty to spectators, and this duty is to protect spectators behind the area of home plate from foul balls. There is no duty to protect spectators in other areas of the baseball park, even though a foreseeable risk of harm continues to exist for spectators. Yet, this gap in protection comes into play due to public policy. Spectators want some limited protection from the inherent risks of attending a baseball game, but they also attend the game for the chance to catch a foul ball or a home run ball. This is a time-honored tradition, deeply imbedded into the game itself and the American culture. It is as much a part of the game as the game itself and has become an inherent but acceptable danger for spectators.

The majority throws a knuckleball in an effort to dance around this culture and the supporting legal principles by relying on the general duty of supervision as a separate, more demanding area of tort law. It holds that supervisors of children have a greater duty of care to protect child spectators from the inherent risks of watching a baseball game than the owner of the ballpark by requiring [**41] adult supervisors to place children in seats that are reasonably protected from the inherent risks. Put another way, the majority essentially declares an adult supervisor can commit negligence by allowing a child to sit in an area of the ballpark outside the protective netting. 6 This approach by the majority is [*888] scuffed and flawed. Most noticeably, it has no support in the application of the factors that go into the imposition of any duty of care and is detached from the traditions and expectations of the game of baseball.

6 It might be argued that the majority does not actually hold children must be seated behind the netting, but instead could be seated in those areas unprotected by netting that are not unreasonably exposed to the inherent risks of the sudden presence of flying objects. In other words, the majority believes the area of Tara’s seat in this case–thirty feet beyond third base, three or four rows into the spectator area–was an “unnecessarily hazardous location.” There was, of course, no evidence to support such a proposition, and such a proposition is contrary to the accepted configuration of a baseball stadium. This configuration recognizes the unreasonably hazardous [**42] area is behind home plate, which supports a duty of the owner of the ballpark to install protective netting around the area of home plate. Moreover, any spectator who has attended a professional baseball game or two knows that a sharply hit line drive off the bat of a professional baseball player that hooks foul can make any spectator location in the path of the ball, for a split second, hazardous. This hazard is the same whether a spectator is seated thirty feet beyond third base, 130 feet beyond third base, or even 230 feet beyond third base. It is simply of no avail to attempt to distinguish between areas of reasonable hazards outside the area protected by netting and areas of unreasonable hazards outside the area protected by netting. Spectators at a professional baseball game are exposed to inherent dangers most anywhere outside the area protected by netting, and it is a danger society has chosen, until this case, to accept.

At the outset, it must be acknowledged that, from a legal standpoint, this case is not merely about a flying bat. If it was, there could be no liability imposed on the city park and recreation department because a flying bat is too unforeseeable to give rise [**43] to a legal duty of care to protect a spectator. That is, it is not reasonably foreseeable to spectators that a flying bat will leave the playing field of a baseball park and enter the spectator area, especially an area thirty feet beyond third base. While the field trip organizers were charged with the responsibility to protect the children during the trip, a flying bat could not have been reasonably anticipated by the trip organizers as a potential harm to the children as they sat in the area of the ballpark beyond third base. Even on those rare occasions when a bat slips from the hands of a batter while attempting to hit a pitched ball, the bat will most likely travel in the direction of the playing field, not 120 feet into the spectator area. It is an extremely rare event for spectators outside the playing area to be placed in the zone of danger of a flying bat, especially a spectator located 120 feet down the third base spectator area. Consequently, no duty of care could be imposed to protect another against such specific, remote harm.

Nevertheless, the law does not impose a duty of care based on the foreseeability of a specific means of injury. See Nachazel v. Miraco Mfg., 432 N.W.2d 158, 160 (Iowa 1988) [**44] (“In negligence cases it is not necessary to a defendant’s liability that the wrongdoer should have foreseen the extent of the harm or the manner in which it occurred, so long as the injuries are the natural, though not inevitable, result of the wrong.”). Instead, only some type of injury must be foreseeable to give rise to a duty of care. In this case, the known danger is flying objects, which is nearly always a baseball. Thus, the duty of care imposed by the majority applies to all flying objects, including baseballs and flying bats. This means a supervisor must protect children from baseballs in the same way as flying bats. Accordingly, this is the duty imposed by the majority that I believe cannot withstand the scrutiny of the factors we rely upon in deciding to impose a duty of care on people, or the scope of such duty of care.

When courts step up to decide whether or not to establish a duty of care under a particular circumstance, three factors are primarily considered: (1) the relationship between the parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns. See Stotts v. Eveleth, 688 N.W.2d 803, 810 (Iowa 2004). These are the same factors that were [**45] essentially applied [*889] by courts in creating the limited duty of care for baseball parks. Yet, the majority avoids any serious discussion and analysis of these factors, but instead merely recognizes that premise liability law, which supports a limited duty of care, is different from supervision-liability law. The majority finds this difference justifies the imposition of a greater duty of care for supervisors to protect others from a premise-based harm than the entity responsible for the creation of the harm. The rationale for this finding is that the supervisor in this case “directed” the children to sit outside the area protected by the netting.

I agree a supervisor should have a continuing duty of care for the safety of children while at the ballpark to protect children from those foreseeable risks of harm that might be encountered from strangers, horseplay on the steps, or other such events, but not from the very risks unique to the game of baseball and those risks that our law has already decided do not need to be eliminated by the baseball parks. An analysis of the factors used to create a duty of care clearly supports this approach.

First, there is nothing particular about a relationship [**46] between a child spectator and an adult supervisor who accompanies the child to a baseball game that favors the imposition of liability. The relationship between parties is a factor in creating a duty of care because it often introduces special considerations that help support a duty, such as control by one party over the other party or special benefits derived by a party. As applied to a baseball game, this factor actually tends to support liability on the premise owner more than it does for liability of a supervisor. The premise owner has a contractual relationship with the spectator, primarily controls the designation of the area to sit, and receives a financial benefit. Moreover, the premise owner has the greatest practical ability to protect the spectator. For sure, the relationship between a supervisor of a field trip to a baseball game and a participant on the field trip is also marked by control over the participant, but not the same type of control that relates to a reasonable and effective ability to provide protection from the inherent risks of watching the game. That is to say, the relationship does not easily transform into the ability of a supervisor to protect the child [**47] spectator from the inherent risks of the game.

The majority finds supervisors determine where children sit, but the baseball park ultimately controls the seating arrangement. Moreover, the seats around home base protected by netting are usually the most expensive seats and are normally reserved for season ticketholders. It is impractical to conclude the relationship between supervisors and children gave supervisors the ability to seat children behind the protective netting.

Second, the foreseeability of harm to child spectators in an unprotected area of the baseball park is the same, if not greater, for the owner of the premise as it is for supervisors of the spectators. The owner has considerably more knowledge of the baseball park and the dangerous areas of the park. A supervisor should be able to safely expect the most dangerous areas for flying objects have been covered by netting, allowing spectators to sit in unprotected areas that are less dangerous.

Third, and most important, the public policies that support limiting the duty of care to protect spectators from the inherent risks of watching baseball are the same under premise-liability law as under supervisor-liability law. These [**48] public-policy concerns have drawn the line, which leaves spectators unprotected except in an area behind home plate. In the other areas of the baseball park, the opportunity [*890] to catch or retrieve a foul ball has won out over the slight risk of harm presented to spectators. In other words, the known risk of harm is not unreasonable under common, practical standards and policies society has embraced since the game was invented by Alexander Cartwright in 1845. 7

7 Alexander Cartwright is recognized as the inventor of modern baseball. He published the rules of baseball in 1845, and his team, the Knickerbocker Club of New York, played the first recorded baseball game in 1846.

Without examining these factors, the majority has changed the game for spectators who bring children to a baseball park to take in the joys of our national pastime. It does this by concluding children must not be exposed to the same inherent risks of attending a baseball game as unsupervised spectators, and by placing the responsibility for protecting children from the inherent risks of attending a baseball game on adults who accompany children to the game. This conclusion, at its core, can only be explained by policies [**49] of overprotectionism and the innate desire to remove children from all potential harm they might encounter in life. Yet, this goal can go too far and can end up depriving children of some of the most rewarding and beneficial experiences of their youth. This will be the likely result of the overprotective decision by the majority in this case.

With this decision, America’s pastime risks becoming a different, or less frequent, event for children than enjoyed in the past. With the imposition of liability on supervisors and others who accompany children to a professional baseball game, the common field trip, as well as the simple pleasure of a parent accompanying a child and the child’s friend to a baseball park, gives rise to new considerations that can only diminish enthusiasm for the trip. Court decisions can have vast consequences on our way of life, and a trip to the ballpark with children in tow may now need to be prCity of Bettendorf and Bettendorf Parks and Recreation,eceded by a trip to a lawyer’s office to obtain a release containing all the essential legal language demanded by the majority or be confined to the most expensive seats behind home base, safely protected from the excitement and anticipation of catching a foul ball.

Just [**50] as there was no joy in Mudville the day the mighty Casey struck out, there is no joy on this day around Iowa’s ballparks. 8 The majority has taken a mighty swing at the correct result in this case and missed by a mile.

8 The legendary baseball poem, “Casey at the Bat,” was written by Ernest Lawrence Thayer, and first published in the San Francisco Examiner on June 3, 1888.

I concur in the majority’s opinion in regard to the release of liability signed by the parent of the child, but join Justice Cady’s dissent as to the duty of care.

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