Release used to defend third party participants in horseback case applying Missouri’s law, not the main party to the contract.

Illinois resident sues Illinois’s resident for getting kicked by a horse in a riding area in Missouri. Area’s release included coverage for participants and protected horse owner from suit.

Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692

State: Illinois, Appellate Court of Illinois, Fourth District Applying Missouri law

Plaintiff: Deanna L. Perkinson

Defendant: Sarah Courson

Plaintiff Claims: Violation of the Animal Control Act and Negligence

Defendant Defenses: Release (neither party brought up the Missouri Equine Liability Act)

Holding: For the Defendant

Year: 2018

Summary

The term “other participants,” was used in a release signed to access land to ride horses to defend the owner of a horse that kicked another horse owner. The term was sufficient to include the rider in the protection the release afforded. Neither party argued the Equine Liability Act of Missouri where the incident took place.

Facts

Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff’s group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another’s homes or that they participated in any activities together other than horseback riding.

In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.

On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff’s group of friends. Plaintiff stated she had not known whether defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.

Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and believed it “was just to register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter.

Plaintiff testified that prior to signing the Cross Country forms, she understood that there was a risk of injury when participating in horseback riding events, including falling off a horse or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified she would have proceeded with the trail ride at Cross Country if she had read the form she signed, which included a warning about the risk of injury when participating in horseback riding events and statements indicating she fully assumed the risks of participation. Plaintiff acknowledged that the form she signed used the phrase “other participants.” She agreed that defendant would have been “another participant” in the activities at Cross Country.

On August 29, 2014, plaintiff, her family, and members of her group intended to take a six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever previously being around Little Bit. Further, she acknowledged consuming beer during the trail ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not remember defendant telling her when the kick occurred or that the horse was in heat at the time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while horseback riding on the day of the incident.

At some point during the trail ride, plaintiff and defendant began riding next to one another and were talking. Plaintiff did not recall who approached whom or how long they rode next to each other. As they were riding together down a hill, defendant’s horse kicked out with both of its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, underwent two surgeries.

Plaintiff testified that during the trail ride defendant should have put a red ribbon on her horse’s tail to warn others that her horse was known to kick. She asserted, however, that the presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated she returned to Cross Country for horseback riding after the August 2014 incident with defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 2016, she did plan to go to another location in Missouri for a Labor Day trail ride.

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

This is a complicated case because it was started in Illinois after the accident happened in Missouri. Consequently, the issues that support the outdoor recreation industry are woven around the other issues such as where the lawsuit should be and what law should be applied to the case.

The court was an Illinois court and the defendant, and the plaintiffs were Illinois’s residents. However, because the accident occurred in Missouri, the court applied Missouri’s law to the case.

The court first looked at Missouri’s law and the requirements to prove negligence.

To obtain relief in a negligence cause of action, “‘the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.'”

Then the assumption of the risk doctrine was reviewed as applied in Missouri.

Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk may not sue another for failing to protect him from it.”

A document showing the plaintiff assumed the risks or explicitly accepted the risks is called an express assumption of the risk document in Missouri (and most other states).

An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.” An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.” Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.”

The Missouri law concerning releases was analyzed.

Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” “[C]ontracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability.'” Missouri law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence,” and “[g]eneral language will not suffice.” “‘The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.’

In this case, the release was not signed because of a legal relationship between the parties, but was signed as part of accessing the land where the accident occurred. Meaning both parties signed the release to ride on the land. Consequently, the argument centered around whether that release was written to protect parties such as the defendant in this case. Whether the release signed by the plaintiff to ride on the land of the landowner provided protection to the owner of the horse that kicked her.

Additionally, [o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member. When an express declaration of intent is lacking, a strong presumption exists “‘that the third party is not a beneficiary and that the parties contracted to benefit only themselves.'”

As in most other states, to understand a contract you must determine the effect intended by the parties to be given to the contract. Each clause should be read in the context of the entire contract, not as individual issues. The information within the “four corners” of the contract is the only information that can be reviewed by a court in determining the meaning of a contract, unless the contract is ambiguous, then outside information can be brought into to define the ambiguous section.

A contract is ambiguous when “duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.”

The language of the release referred to “other participants.” The defendant argued that she was the intended beneficiary of this language. If the defendant was found to be the intended beneficiary, then the release would stop the claims of the plaintiff. The term other participants usually follows the name of the party wanting the release to be signed. In this case, the landowner would have their name as the party to be protected and the clause and other participants followed. Did the term have legal meaning and apply to the defendant or was the term just dicta, additional language in the agreement that had no meaning.

 

 

 

The plaintiff argued that she did not know what she was signing and therefore, could not have intended the release to benefit the defendant. The plaintiff also argued the phrase “other participants” was ambiguous.

However, the court disagreed and found it covered the defendant and was not a catch-all phrase. The court found the defendant was a participant within the meaning of the words and the language of the release.

The final failure of the plaintiff’s argument fell when the court brought up that in her own deposition, she characterized the defendant as another participant in the trail ride.

The next argument, is another argument that is surfacing in plaintiff’s arguments across the US. The plaintiff argued the release should not apply because it purports to relieve liability for more than simple negligence. Meaning the release was written to cover intentional torts, gross negligence and other activities of the public interest.

However, the court did not agree with that argument because the release did not refer to any additional legal theories other than negligence. The release only used the term negligence and did not sue any language that extended that term to a greater definition.

The court also quoted a Missouri Supreme Court decision that held that the plaintiff could not get a release thrown out by arguing it covered gross negligence. Missouri does not recognize gross negligence. Since it does not exist under Missouri’s law, it could not be used to void a release.

In DeCormier v. Harley-Davidson Motor Co. Group, Inc., the Missouri Supreme Court stated that it would “enforce exculpatory agreements to protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule by alleging [a defendant was] grossly negligent because Missouri’s courts do not recognize degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has raised in this case both before the trial court and on appeal.

Nor does Missouri recognize a cause of action for recklessness.

The next argument was the release was not clear because it was mixed in with another form. The top part of the form was labeled a registration form, and the bottom part was a release.

The court recognized this but found the release part of the form was labeled Release of Liability – Read Before Signing and separated by a dotted line from the top of the form. The significant language in the release was also capitalized for emphasis.

The court held with the trial court and found the release signed by the parties to ride on the property protected the defendant in this case.

 

 

 

So Now What?

This is the first case I have found where a release was used to protect a third party from a lawsuit. I have long argued that this should be the case. Even though the release was signed for a land owner, any litigation is going to cost many parties money. The decision does not say, however, in cases like this many times, the landowner and other participants in the ride are deposed, and as such they lose work and possibly incur legal fees for the depositions.

Having the release be part of a registration form was an issue. Eliminate the argument by the plaintiff and make it a separate form. If you need more information than what is normally required on a release collect it a different way or at the end.

What do you think? Leave a comment.

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Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.

Defendant bungee jump operator failed to attach the bungee to the platform. Plaintiff fell into an airbag that had been partially deflated due to the bungee hitting the back first. TV news crew recorded it all.

Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126; 1999 Mo. App. LEXIS 315

State: Missouri

Plaintiff: Loren Martin Hatch

Defendants: V.P. Fair Foundation, Inc. Respondent/Cross-Appellant, and Northstar Entertainment, Inc.,

Plaintiff Claims:

Defendant Defenses:

Holding: for the plaintiff

Year: 1999

Honestly, this case is a summary of the issues I’ve been pushing for years. Better, you might call it, what you need to do as a defendant to make sure the plaintiff wins no matter how great your defense counsel is. Believe me, the defense team in this case was awesome; they just had an uphill battle. Consequently, I wish I had read it years before this to have shoved us in the right direction earlier.

There are two different defendants in this case. Sometimes the decision looks at both defendants equally and sometimes individually; consequently, it gets confusing. The defendant V.P. Fair Foundation, Inc., puts on an annual multi-day fair in downtown St. Louis to celebrate the Fourth of July.

Defendant V.P. Fair Foundation, Inc., (Fair) hired the defendant Northstar Entertainment, Inc., (Northstar) to provide a bungee jumping attraction for the fair.

The plaintiff was the first person to jump the day of the incident. The plaintiff arrived when the attraction opened but before any employees of Defendant, Northstar has arrived. When the Northstar employees arrived, the Northstar employees weighed the plaintiff, had him sign a release of liability and a log book.

The plaintiff was placed in a harness around his ankles and waist and fastened the bungee cord to the harness. The plaintiff then walked to the bungee cage and entered the cage with a Northstar employee who was the jumpmaster, a reporter and a cameraman for the local TV station. A crane lifted the cage into the air 170 feet above the ground. The cage door was opened; the bungee cord straightened out, and the plaintiff was told he was “was locked in and safe to jump.”

Unfortunately, no one attached the bungee cord to the crane, and when Hatch leaped off the platform, he plunged 170 feet to the ground. Initially, Hatch fell head-first. Although not attached, the bungee cord momentarily snagged on the bungee cage and stretched out. Breaking loose, the cord recoiled and struck Hatch as it passed him. The force of the recoil apparently reversed Hatch’s position so that his descent was upright. The bungee cord and tackle, together weighing between seventy-five and eighty pounds, reached the airbag first and partially deflated it prior to his landing. After landing feet-first in the airbag, Hatch was taken to the hospital. As a result of the fall, Hatch sustained serious injuries to his back, legs, and shoulders.

A tape of the event was shown to the jury.

The plaintiff suffered serious back, leg and shoulder injuries. He was eventually fired from his job as an accountant because he missed so many days at work because he could not concentrate.

The plaintiff sued the defendants on multiple negligence theories. Prior to trial, several motions for summary judgment were granted for the defendants. At trial, the plaintiff’s case was down to two “questions of whether Northstar acted recklessly and whether bungee jumping constituted an inherently dangerous activity were submitted to the jury.” The jury found that bungee jumping was inherently dangerous and awarded the plaintiff $500,000.

The defendants filed a motion for J.N.O.V. (see Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier for a definition of J.N.O.V.) The court granted the defendant’s Motion for Judgment Not Withstanding the Verdict.

Everyone then appealed.

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

The court looked at a couple of factual issues. A safety manual was created by an association of bungee jumping businesses. The defendant Northstar adopted the manual. However, the safety manual was ignored by the Northstar employees. The court specifically pointed out the following issues the Northstar employees did not follow from the safety manual.

The manual called for a crew of six, Northstar supplied only a crew of five; the manual specified that the controller must be twenty-five years old, Northstar’s controller was eighteen years old; the manual required every piece of equipment to be inspected daily and recorded on a checklist, there was no record of an inspection on July 5, 1993, indicating that Northstar’s employees either failed to inspect the equipment, failed to record the inspections, or failed to do both; the manual required a test jump before opening the bungee jump to the public, Northstar failed to conduct a test jump on the day of Hatch’s fall.

The court then looked at the plaintiff’s appeal issues starting with the J.N.O.V on the Premises Liability claim. The plaintiff’s suit was based on the duty a landowner owes to people on its land, in this case the Defendant’s Fair’s duty to the plaintiff.

The plaintiff was classified as an invitee of the Defendant Fair. That means the defendant owed the plaintiff a duty of ordinary and reasonable care to prevent injury to the plaintiff. That care can be eliminated if the landowner hires an independent contractor to do work rather than the landowner himself. The liability is shifted to the contractor. In this case Defendant Fair hired Defendant Northstar and shifted the liability of a bungee jump on the land of Defendant Fair to Defendant Northstar.

However, hiring an independent contractor is not an absolute shift of liability.

Nevertheless, there are at least two exceptions under which a non-negligent landowner may be held vicariously liable for the negligence of an independent contractor: the landowner control exception and the inherently dangerous activity exception.

The issues in this case were the inherently dangerous activity exception.

Under this exception, a landowner who hires an independent contractor to perform an inherently dangerous activity has a nondelegable duty to take special precautions to prevent injury from the activity. The landowner “remains liable for the torts of the contractor, simply for commissioning the activity. The liability attaches without any need for showing that the employer is in any respect negligent. It is purely vicarious.

Several theories abound about using contractors to shift liability; however, they are rarely if ever successful. It may shift liability initially; however, the person hiring the independent contractor can always be found liable for something if the independent contractor was negligent.

The theory upon which this liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute, nondelegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or in other words, to see that all reasonable precautions shall be taken during its performance, to the end that third persons may be effectually protected against injury.

Not brought up in this trial but important is even if you shift the liability to an independent contractor, you are still liable for hiring the wrong contractor. In some state’s proof you hired, the wrong contractor is the independent contractor was negligent.

The court then looked at the issues of the J.N.O.V.

An appellate court will affirm the entry of a judgment notwithstanding the verdict only when all of the evidence and reasonable inferences drawn therefrom are so strongly against the plaintiff’s case that there is no room for reasonable minds to differ and the defendant was entitled to judgment as a matter of law. Only when the plaintiff has failed to make a submissible case should the trial court grant a motion for judgment notwithstanding the verdict. Id. To determine whether a plaintiff, who obtained a jury verdict, has made a submissible case, we view the evidence in a light most favorable to the plaintiff, giving plaintiff the benefit of all reasonable inferences.

The issue then fell on whether or not bungee jumping was an inherently dangerous activity. The trial court found that bungee jumping could be performed safely; therefore, it was not an inherently dangerous activity.

Under Missouri’s law an inherently dangerous activity is “an activity that necessarily presents a substantial risk of harm unless adequate precautions are taken.” Taken from the Missouri Jury Instructions, MAI 16.08.

Proof of the fact bungee jumping was an inherently dangerous activity was found by the court in the release the Defendant Northstar had the plaintiff sign.

Northstar’s release form contained the following language:

The participant is fully aware that bungee-jumping and all associated activities is a calculated risk sport and contains inherent risk and dangers (including serious injury or death) that no amount of care, caution, instruction, or expertise can eliminate. [Emphasize added]

No other evidence was looked at by the court to prove the activity inherently dangerous. Because the release said the sport had inherent risks the court found the sport was inherently dangerous!

The next issue was whether the action of failing to attach the bungee cord to the cage was collateral negligence. ”Collateral negligence occurs when the negligence is unusual or foreign to the normal contemplated risks of performing the activity.” If the actions of Defendant Northstar were collateral, then Defendant Fair would not be vicariously liable. Meaning if the actions of a contractor were collateral the landowner was not liable.

The issue then becomes should the landowner have contemplated that the Defendant Northstar would have failed to hookup the bungee cord to the cage. “…the proper focus for the factfinder is whether the landowner contemplated or should have contemplated the type of negligence committed by the independent contractor.

The test is whether or not the independent contractor’s acts were or should have been within the contemplation of the landowner. The Restatement provides that a landowner may be required to contemplate abnormal or unusual kinds of negligence if the circumstances under which the activity is performed give the landowner warning of special reasons to take precautions or some special risk of harm to others inherent in the activity.

The court found that the landowner, Defendant Fair, should have contemplated that the employee of Defendant Northstar would have failed to hook the bungee cord to the cage.

The participant’s safety in making a bungee jump depends in large part on the security of the bungee cord. The risk that a participant could be injured as a result of any failure of the cord, its attachment, or the persons operating the jump is a peculiar risk that V.P. Fair should have contemplated. Accordingly, Hatch made a submissible case under the inherently dangerous activity exception.

The court then found the entry of the J.N.O.V. was incorrect.

The next issue the court touched upon was a claim by the plaintiff whom the defendants were operating as a joint venture. A joint venture is a legal entity used where to business or people join together for a limited purpose to accomplish a goal. “A joint venture is an “association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge.”

A joint venture requires:

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

The trial court found, and the appellate court agreed there was no joint venture here.

…there was no agreement between V.P. Fair and Northstar to share profits and losses from the bungee jumping operation and because V.P. Fair did not exercise sufficient control over the bungee jumping operation.

The court could not find a joint venture between Defendant Fair and Defendant Northstar. The Appellate court upheld the trial court’s granting of the defendants’ Motion for Summary judgment on this issue.

The court then went and reviewed the issues brought up by the Defendant’s appeal. The defendants argued that Missouri does not recognize a claim for recklessness.

Recklessness looks to the tortfeasor’s state of mind. Recklessness is an aggravated form of negligence which differs in quality, rather than in degree, from ordinary lack of care. It is applied to conduct which is negligent, rather than intentional, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended.

The court then differentiated recklessness from negligence.

Negligence is one kind of tort, an unintentional injury usually predicated upon failure to observe a prescribed standard of care while a willful, wanton, reckless injury is another kind of tort, an intentional injury often based upon an act done in utter disregard of the consequences. Reckless conduct may be negligent in that it is unreasonable but it is and must be something more than unreasonable, “it must contain a risk of harm to others in excess of that necessary to make the conduct unreasonable and therefore, negligent.” “The actor’s (defendant’s) conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.”

The release signed by the plaintiff stopped the plaintiffs simple or ordinary negligence claims. However, under Missouri’s law, like the majority of states a release cannot bar a claim for more than negligence. “There is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”

Since the release only stopped the negligence claim the recklessness was a valid claim under Missouri’s law.

The next issue raised by the Defendants was remittitur. Simply stated remittitur is a request to reduce the damages awarded by the plaintiff because they are too great. For a court to reduce excessive damages it must find:

(1) present and future loss of income, (2) medical expenses, (3) plaintiff’s age, (4) the nature and severity of the injuries, (5) economic factors, (6) awards given in similar cases, and (7) the superior opportunity of the trial court and jury to appraise plaintiff’s injuries and other damages.

The court found that both the damages awarded by the jury were substantiated by the injury and damages the plaintiff had suffered, and none of the defendants failed to prove to the judge the requirements for a remittitur were met. “We do not find that the verdict is so grossly excessive as to shock the conscience or that both the jury, and the judge abused their discretion.”

The case was sent back to the trial court for the judgment to be reinstated against the defendants in the amount of $500,000.00.

So Now What?

First if you are going to adopt a manual, a standard, a program an emergency plan, you have to understand it, explain it and use it.  Saying you are trying to be safe while ignoring safety issues does not work. Worse, as in this case, adopting the manual was proof that what you did was wrong, and proof that was you did was more than simple negligence. It showed the appellate court that you failed the plaintiff miserably because it was there in black and white.

Second the whole theory that you can shift liability away from yourself by hiring an independent contractor does not work. In this case, that act increased the liability of the defendant and provided no defense because the actions of the defendant who was negligent were not controllable by the other defendant.

If it is your land, your operation, your business, your liability may change its name, however, it never leaves. Instead of being sued for negligence, you will be sued for negligently hiring a bad contractor. Instead of having a defense to litigation you will be liable with no defense because you had no control over the independent contractor.

If you walk into court looking bad, or in this case having a video prove you are bad, your chances of winning are slim.

clip_image002What do you think? Leave a comment.

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Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126; 1999 Mo. App. LEXIS 315

Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126; 1999 Mo. App. LEXIS 315

Loren Martin Hatch, Appellant/Cross-Respondent, vs. V.P. Fair Foundation, Inc. Respondent/Cross-Appellant, and Northstar Entertainment, Inc., Respondent/Cross-Appellant.

Nos. ED73279, ED73280

COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION TWO

990 S.W.2d 126; 1999 Mo. App. LEXIS 315

March 16, 1999, Filed

SUBSEQUENT HISTORY: [**1] As Corrected March 30, 1999.

PRIOR HISTORY: Appeal from the Circuit Court of the City of St. Louis. Hon. Floyd McBride.

DISPOSITION: JUDGMENT NOTWITHSTANDING THE VERDICT IN FAVOR OF V.P. FAIR REVERSED AND REMANDED FOR ENTRY OF JUDGMENT AGAINST V.P. FAIR IN ACCORDANCE WITH THE VERDICT. REMAINDER OF JUDGMENT AFFIRMED.

COUNSEL: Richard C. Witzel, David A. Dimmitt, Witzel, Kearns, Kenney & Dimmitt, St. Louis, MO. Alan G. Kimbrell Louis, MO, for appellant/cross-respondent.

Thomas C. Walsh, Elizabeth C. Carver, St. Louis, MO, for respondents/cross-appellants.

JUDGES: James R. Dowd, Judge, Kathianne Knaup Crane, P.J., concurs. Mary Rhodes Russell, J., concurs.

OPINION BY: JAMES R. DOWD

OPINION

[*130] OPINION

This is an appeal and a cross-appeal from a judgment entered on a jury verdict in a personal injury lawsuit commenced by Loren Martin Hatch against defendants V.P. Fair Foundation, Inc. (“V.P. Fair”) and Northstar Entertainment, Inc. (“Northstar”) to recover damages for injuries Hatch suffered when Northstar failed to attach the bungee cord to the crane when he made a bungee jump. The jury awarded Hatch $ 5,000,000, finding V.P. Fair vicariously liable on a premises liability theory and Northstar liable on a recklessness theory. Hatch appeals from the trial court’s grant of V.P. [**2] Fair’s motion for judgment notwithstanding the verdict on his premises liability claim and from the trial court’s entry of summary judgment on two of his other claims against V.P. Fair. He also appeals from the trial court’s grant of summary judgment on his negligence [*131] claim against Northstar. In their cross-appeal, 1 defendants claim that the trial court erred in submitting Hatch’s recklessness claim to the jury and in defining recklessness for the jury. Defendants also contend that the trial court abused its discretion in overruling their motion for a remittitur of the jury’s verdict. We reverse the judgment notwithstanding the verdict in favor of V.P. Fair and remand for entry of judgment against V.P. Fair in accordance with the verdict. In all other respects the judgment is affirmed.

1 V.P. Fair has joined Northstar’s cross-appeal as a “conditional cross-appellant” to assert errors in the denial of its motion for new trial that would become viable if the judgment notwithstanding the verdict in its favor is reversed. See Rule 72.01(c)(1).

[**3] I. Factual Background

V.P. Fair organizes an annual multi-day fair in downtown St. Louis to celebrate the Fourth of July. The fair offers a variety of events and activities, including air shows, musical performances, food stands, and amusement rides. In 1993, V.P. Fair contracted with Northstar for the provision of a bungee jumping 2 attraction. On July 5, 1993, Hatch and a group of his friends arrived at the fair between 10:30 and 10:45 a.m. Although the fair and all of its activities were scheduled to open at 10:00 a.m., Northstar’s employees had yet to arrive at the site. Hatch purchased a ticket to bungee jump and waited approximately fifteen minutes until Northstar’s employees arrived and set up the attraction. Hatch was then called into a tent area where he was weighed and signed a log book. He also signed a document written by Northstar, entitled “Release and Waiver of Liability and Indemnity Agreement.”

2 The bungee jump in this case was designed to allow participants to jump from a substantial height secured by an elastic cord attached to a crane. A participant’s fall is arrested when the cord reaches its length, stretches, and recoils, causing the participant to bounce. Following the jump, the participant is slowly lowered to the ground and unhooked.

[**4] Hatch was then prepared for his bungee jump. He was to be the first jumper of the day. A Northstar employee placed a harness around Hatch’s waist and ankles, and fastened the bungee cord to the harness. Hatch walked to the bungee cage where he joined Paul Murray, Northstar’s jumpmaster, and a reporter and cameraman from a local television station. A crane lifted the bungee cage 170 feet above the ground, and Murray opened the cage door and straightened out the bungee cord inside the cage. Murray then directed Hatch to the front of the cage and told him that he was locked in and safe to jump. Unfortunately, no one had attached the bungee cord to the crane, and when Hatch leaped off the platform, he plunged 170 feet to the ground. Initially, Hatch fell head-first. Although not attached, the bungee cord momentarily snagged on the bungee cage and stretched out. Breaking loose, the cord recoiled and struck Hatch as it passed him. The force of the recoil apparently reversed Hatch’s position so that his descent was upright. The bungee cord and tackle, together weighing between seventy-five and eighty pounds, reached the airbag first and partially deflated it prior to his landing. After [**5] landing feet-first in the airbag, Hatch was taken to the hospital. As a result of the fall, Hatch sustained serious injuries to his back, legs, and shoulders. A tape depicting the premises, the preparation for the jump, and the jump itself was shown to the jury.

At some point prior to the 1993 fair, Northstar adopted a safety manual. The manual was created by an association of bungee jumping businesses in an effort to provide safety guidelines for operating a bungee jumping attraction. The manual’s safety procedures were largely ignored by Northstar’s crew. The manual called for a crew of six, Northstar supplied only a crew of five; the manual specified that the controller must be twenty-five years old, Northstar’s controller was eighteen years [*132] old; the manual required every piece of equipment to be inspected daily and recorded on a checklist, there was no record of an inspection on July 5, 1993, indicating that Northstar’s employees either failed to inspect the equipment, failed to record the inspections, or failed to do both; the manual required a test jump before opening the bungee jump to the public, Northstar failed to conduct a test jump on the day of Hatch’s fall.

After [**6] his fall, Hatch instituted this lawsuit against Northstar and V.P. Fair. The second amended petition consisted of eight counts and contained several theories of recovery. Count I of the second amended petition (“Careless Disregard–Joint Venture”) sought damages from both defendants, jointly and severally, for negligence based on the theory of joint venture. Count II (“Negligence/Careless Disregard–Northstar Entertainment, Inc.”) sought damages from Northstar for negligence in failing to take reasonable efforts to ensure the safety of the bungee jumping operation. Count III (“Negligence/Careless Disregard–V.P. Fair Foundation, Inc.”) sought damages from V.P. Fair for its negligence in failing to inspect Northstar’s bungee jumping operation to ensure that it was being operated in a reasonably safe manner. Count IV (“Premises Liability–Defendant V.P. Fair Foundation, Inc.”) sought damages from V.P. Fair on a premises liability theory for negligence in (1) inviting the public onto its premises which were not in a reasonably safe condition for intended use, (2) failing to warn the public of the existence of a dangerous condition, and (3) failing to inspect the premises and to discover [**7] the defective conditions. Count V (“Gross Negligence/Conscious Disregard–Joint Venture”) sought damages from both defendants, jointly and severally, for gross negligence or recklessness on a joint venture theory. Count VI (“Gross Negligence/Conscious Disregard–Northstar Entertainment, Inc.”) sought damages from Northstar based on Northstar’s gross negligence or recklessness in failing to inspect the bungee jumping equipment and in failing to attach the bungee cord to the crane or cage assembly prior to Hatch’s jump. Count VII (“Gross Negligence/Conscious Disregard–V.P. Fair Foundation, Inc.”) sought damages from V.P. Fair based on its gross negligence or recklessness in failing to inspect Northstar’s bungee jumping operation. Count VIII (“Premises Liability–Defendant V.P. Fair Foundation, Inc.”) sought damages from V.P. Fair based on its gross negligence or recklessness in (1) inviting the public onto its premises when the premises were not in a reasonably safe condition, (2) failing to warn the public of the existence of a dangerous condition on the premises, and (3) failing to inspect the premises and to discover the defective condition.

Prior to trial, defendants filed [**8] motions for summary judgment. The court granted summary judgment in favor of defendants on Counts I and V, finding no joint venture because there was no agreement between V.P. Fair and Northstar to share profits and losses from the bungee jumping operation and because V.P. Fair did not exercise sufficient control over the bungee jumping operation. The court also granted summary judgment in favor of Northstar on Count II, finding that the release signed by Hatch barred his negligence claim against Northstar. As to Count IV, the court found that V.P. Fair could be liable under a premises liability theory only if bungee jumping was an inherently dangerous activity. It entered summary judgment in favor of V.P. Fair on Count VII because it did not state a viable claim against V.P. Fair independently of Count IV. It also entered summary judgment on Count VIII.

Hatch proceeded to trial on Counts IV and VI. 3 The questions of whether Northstar acted recklessly and whether bungee jumping constituted an inherently dangerous activity were submitted to the jury. [*133] On the recklessness claim, the jury returned a verdict in favor of Hatch and against Northstar. The jury also found that bungee [**9] jumping was an inherently dangerous activity and returned a verdict in favor of Hatch and against V.P. Fair on the premises liability claim. The jury awarded Hatch $ 5,000,000 in damages, and the trial court entered a judgment against defendants in that amount. Defendants filed post-trial motions for judgment notwithstanding the verdict, new trial, and remittitur. The trial court granted V.P. Fair’s motion for judgment notwithstanding the verdict and overruled the remaining post-trial motions. This appeal followed.

3 It appears that Hatch abandoned Count III at trial.

On appeal, Hatch contends that the trial court erred in: (1) granting V.P. Fair’s motion for judgment notwithstanding the verdict on the basis that bungee jumping is not an inherently dangerous activity, (2) sustaining V.P. Fair’s motion for summary judgment on the ground that defendants were not engaged in a joint venture, (3) sustaining V.P. Fair’s motion for summary judgment on the premises liability claim based on retained control because [**10] V.P. Fair did not surrender sufficient control of the premises to avoid liability for the dangerous condition to which patrons of the bungee jumping operation were exposed, and (4) sustaining Northstar’s motion for summary judgment on his claim for negligence and holding that the release he signed exculpated Northstar from liability for its future negligence. We hold that there was sufficient evidence to support a finding that bungee jumping is an inherently dangerous activity and that the risk was not caused by collateral negligence; therefore, the trial court erred in granting the judgment notwithstanding the verdict in favor of V.P. Fair. Accordingly, we reverse the judgment notwithstanding the verdict in favor of V.P. Fair and remand for entry of judgment in accordance with the verdict. However, we hold that the trial court did not err in sustaining V.P. Fair’s motion for summary judgment on the grounds that it was not engaged in a joint venture. Because V.P. Fair is vicariously liable as a landowner under the inherently dangerous activity exception, we do not need to address the question of whether it is also liable based on retained control. We likewise need not reach the merits [**11] of the question of whether Hatch’s release released Northstar’s negligence because, even if Hatch had a claim for negligence against Northstar, he has already been awarded damages for his injuries based on his recklessness claim against Northstar.

In their cross-appeal, defendants argue that the trial court erred in: (1) submitting Hatch’s claim of recklessness to the jury because Missouri does not recognize a cause of action for recklessness; and (2) overruling defendants’ motion for new trial because the jury instruction defining the term “recklessness” failed to include a standard of care. Defendants also claim that the trial court abused its discretion in overruling their motion for remittitur of the jury’s verdict. We find no error in the points raised on cross-appeal.

II. Hatch’s Appeal

A. Judgment Notwithstanding the Verdict – Premises Liability

In his first point, Hatch argues that the trial court erred in granting V.P. Fair’s motion for judgment notwithstanding the verdict on the basis of its finding that as a matter of law bungee jumping is not an inherently dangerous activity. The parties agree that for the purposes of tort liability, V.P. Fair is [**12] considered a landowner of the fairgrounds.

[HN1] In general, a landowner owes a duty of ordinary and reasonable care to invitees to prevent injury to the invitee. Hunt v. Jefferson Arms Apartment Co., 679 S.W.2d 875, 879 (Mo.App. E.D.1984). A well-recognized exception to this general rule exists when a landowner hires an independent contractor. A landowner is not vicariously liable for injuries to third [*134] parties caused by the negligence of the independent contractor or his employees. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403-04 (Mo.App. W.D.1997). Thus, by hiring an independent contractor, the landowner may shift the duty to use reasonable and ordinary care to prevent injury to the independent contractor. Halmick v. SBC Corporate Servs., Inc., 832 S.W.2d 925, 927 (Mo.App. E.D.1992).

[HN2] Nevertheless, there are at least two exceptions under which a non-negligent landowner may be held vicariously liable for the negligence of an independent contractor: the landowner control exception and the inherently dangerous activity exception. Lawrence, 957 S.W.2d at 404. As previously stated, in this opinion we reach only the application of the inherently dangerous activity [**13] exception.

As a preliminary matter, the parties disagree whether the determination of whether an activity is inherently dangerous is a question of law or fact. Defendants argue that Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. banc 1991), stands for the proposition that the issue of whether an activity is inherently dangerous is entirely one of law. We disagree. By noting that the question is initially one of law, Zueck simply enunciated the firmly rooted principle that the trial court must initially decide as a question of law whether or not a plaintiff has made a submissible case. Id. at 386. The court noted that for the purposes of its opinion in Zueck it was assuming that the work in issue was inherently dangerous, thereby removing any issue of unresolved fact. Id. The court did not engage in any further discussion of the matter or purport to overrule any appellate decisions to the contrary.

Furthermore, at the time Zueck was decided, substantial authority indicated that the question of whether a particular activity is “inherently dangerous” is generally a question of fact for the jury. See Smith v. Inter-County Telephone [**14] Co., 559 S.W.2d 518, 524 (Mo. banc 1977); Nance v. Leritz, 785 S.W.2d 790, 792 (Mo.App. E.D.1990); Floyd v. Benson, 753 S.W.2d 945, 948 (Mo.App. S.D.1988); Donovan v. General Motors, 762 F.2d 701, 703 (8th Cir. 1985). Therefore, we find Zueck does not stand for the proposition that the question of whether a specific activity is inherently dangerous is solely a question of law. Developments after the Supreme Court handed down Zueck also support this conclusion. After Zueck, the Missouri Supreme Court Committee on Jury Instructions adopted MAI 16.08, which leaves for the jury the ultimate question of whether an activity is inherently dangerous. Accordingly, we hold that [HN3] the determination of whether an activity is inherently dangerous, while initially a question of law, is ultimately a question of fact.

[HN4] Landowner liability under the inherently dangerous activity exception is a species of premises liability. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 130 (Mo. banc 1993). Under this exception, a landowner who hires an independent contractor to perform an inherently dangerous activity has a nondelegable duty to take special precautions to [**15] prevent injury from the activity. Id. The landowner “remains liable for the torts of the contractor, simply for commissioning the activity. The liability attaches without any need for showing that the employer is in any respect negligent. It is purely vicarious.” Ballinger v. Gascosage Elec. Coop., 788 S.W.2d 506, 511 (Mo. banc 1990).

The theory upon which this liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute, nondelegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or in other words, to see that all reasonable precautions shall be taken during its performance, to the end that third persons may be effectually protected against injury.

[*135] 41 Am.Jur.2d Independent Contractors sec. 41 (1968).

[HN5] A landowner who hires an independent contractor to perform an inherently dangerous activity, however, is not vicariously liable for every act of an independent contractor that causes injury to a third party. According to the Restatement (Second) of Torts, 4 the inherently dangerous activity exception applies only where “the harm [**16] results from the negligence of the contractor in failing to take precautions against the danger involved in the work itself, which the employer should contemplate at the time of the contract.” Restatement (Second) of Torts sec. 427 cmt. d (1965). On the other hand, if the contractor’s negligence is “collateral,” the general rule of landowner non-liability applies. Nance, 785 S.W.2d at 793; Restatement (Second) of Torts sec. 426 cmt. a (1965).

4 In Ballinger, the court stated that the Restatement correctly reflects Missouri law with respect to the inherently dangerous activity exception. 788 S.W.2d at 511. MAI 16.08, which was adopted after the Ballinger decision, cites the Restatement as authority.

[HN6] The Restatement defines collateral negligence as “negligence which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work, as distinguished from negligence which creates only the normal or contemplated risk.” Restatement (Second) of Torts sec. 426 cmt. a (1965). Under [**17] this rule,

a landowner is not required to contemplate or anticipate abnormal or unusual kinds of negligence on the part of the contractor, or negligence in the performance of the operative details of the work which ordinarily may be expected to be carried out with proper care, unless the circumstances under which the work is done give him warning of some special reason to take precautions, or some special risk of harm to others inherent in the work.

Restatement (Second) of Torts sec. 426 cmt. b (1965).

[HN7] An appellate court will affirm the entry of a judgment notwithstanding the verdict only when all of the evidence and reasonable inferences drawn therefrom are so strongly against the plaintiff’s case that there is no room for reasonable minds to differ and the defendant was entitled to judgment as a matter of law. Thieme v. Tour-Toiseshell, Inc., 887 S.W.2d 795, 796 (Mo.App. E.D.1994). Only when the plaintiff has failed to make a submissible case should the trial court grant a motion for judgment notwithstanding the verdict. Id. To determine whether a plaintiff, who obtained a jury verdict, has made a submissible case, we view the evidence in a light most favorable [**18] to the plaintiff, giving plaintiff the benefit of all reasonable inferences. Id.

In its judgment notwithstanding the verdict, the trial court first concluded that bungee jumping was not inherently dangerous as a matter of law because the evidence indicated that bungee jumping could be done safely. In so holding, the trial court relied on dicta found in Reed v. Ocello, 859 S.W.2d 242 (Mo.App. E.D.1993), in which this Court stated “if there is a safe way to perform the activity, it is not inherently dangerous, and the general rule of landowner non-liability applies.” Id. at 245; see also Lammert v. Lesco Auto Sales, 936 S.W.2d 846, 850 (Mo.App. E.D.1996) (relying on Reed for the same proposition).

In our view the dicta in Reed and Lammert directly contradicts Ballinger v. Gascosage Electric Cooperative, 788 S.W.2d 506 (Mo. banc 1990), in which the court stated that [HN8] “the essence of inherent danger . . . is the need for special precaution. It is not sufficient for the defendant to show that the work can be done safely.” Id. at 509; see also W. Keeton, et al., Prosser and Keeton on The Law of Torts 512-15 (5th ed. 1984). The holdings [**19] in Reed and Lammert correctly hold that the [*136] activity in question in those cases was not inherently dangerous, however, the dicta indicating that an activity is not inherently dangerous if it can be performed safely should not be followed. Accordingly, the trial court erred in entering judgment notwithstanding the verdict in favor of V.P. Fair.

[HN9] To initially determine whether an activity is inherently dangerous, Zueck, 809 S.W.2d at 384, the trial judge should begin by ascertaining the nature of the activity and the manner in which the activity is ordinarily performed. If after considering these factors the trial court concludes the activity does not involve some peculiar risk of harm, then the activity is not inherently dangerous as a matter of law. If the trial court does not so find, then the question should be submitted to the jury pursuant to MAI 16.08.

In this case, while there was evidence that the activity could be done safely, there was also evidence, including Northstar’s release form itself, 5 which would support a conclusion that by its very nature the activity involves some peculiar risk of physical harm. Thus, the trial court erred in determining [**20] as a matter of law that bungee jumping is not inherently dangerous.

5 Northstar’s release form contained the following language:

The participant is fully aware that bungee-jumping and all associated activities is a calculated risk sport and contains inherent risk and dangers (including serious injury or death) that no amount of care, caution, instruction, or expertise can eliminate.

Having found sufficient evidence to support a finding that the bungee jump in this case was inherently dangerous, we must next determine if Northstar’s failure to attach the bungee cord is an act of collateral negligence. In its judgment notwithstanding the verdict, the trial court found that Northstar’s failure to attach the bungee cord was an act of collateral negligence. Collateral negligence would preclude a finding that the V.P. Fair is vicariously liable. We conclude that the trial court misinterpreted the collateral negligence rule.

[HN10] Collateral negligence occurs when the negligence is unusual or foreign to the [**21] normal contemplated risks of performing the activity. Restatement (Second) of Torts sec. 426 cmt. a (1965). A landowner is not immune from liability simply because the independent contractor’s negligence contributed to the third party’s injury. Nance, 785 S.W.2d at 793. Instead, the proper focus for the factfinder is whether the landowner contemplated or should have contemplated the type of negligence committed by the independent contractor. Id.; Restatement (Second) of Torts sec. 426 cmt. b (1965). As to what an employer is and is not expected to contemplate, the Restatement provides the following example:

[HN11] An employer may hire a contractor to make an excavation, reasonably expecting that the contractor will proceed in the normal and usual manner with bulldozer or with pick and shovel. When the contractor, for his own reasons, decides to use blasting instead, and the blasting is done in a negligent manner, so that it injures the plaintiff, such negligence is “collateral” to the contemplated risk, and the employer is not liable. If, on the other hand, the blasting is provided for or contemplated by the contract, the negligence in the course of the operation is within the [**22] risk contemplated, and the employer is responsible for it.

Id.

[HN12] The test is whether or not the independent contractor’s acts were or should have been within the contemplation of the landowner. The Restatement provides that a landowner may be required to contemplate abnormal or unusual kinds of negligence if the circumstances under which the activity is performed give the landowner warning of special reasons to take precautions or some special risk of harm to others inherent in the activity. [*137] Restatement (Second) of Torts sec. 426 cmt. b (1965). Here, because of the extreme height involved, V.P. Fair should have been aware of a special risk of injury to bungee jumping participants if Northstar failed to properly attach the bungee cord. V.P. Fair had the opportunity to argue to the jury that Northstar’s actions were not and should not have been within its contemplation. The participant’s safety in making a bungee jump depends in large part on the security of the bungee cord. The risk that a participant could be injured as a result of any failure of the cord, its attachment, or the persons operating the jump is a peculiar risk that V.P. Fair should have contemplated. Accordingly, [**23] Hatch made a submissible case under the inherently dangerous activity exception.

The trial court properly instructed the jury under MAI 16.08 to determine whether bungee jumping was inherently dangerous. 6 We are satisfied that in considering whether the activity of bungee jumping was inherently dangerous, the jury reasonably could have found that unless adequate precautions were taken, bungee jumping necessarily presents a substantial risk of harm. In addition, the jury reasonably could have found that the risk of injury from a fall is a risk that inheres in bungee jumping itself in the absence of adequate precautions and that the risk was not negligently created solely as the result of the improper manner in which Northstar performed the work. Because Hatch made a submissible case under the inherently dangerous activity exception, the trial court erred in entering judgment notwithstanding the verdict.

6 [HN13] MAI 16.08 defines inherently dangerous activity as an activity that necessarily presents a substantial risk of harm unless adequate precautions are taken.

The Notes on Use accompanying MAI 16.08 [HN14] authorize the defendant to request the court to further instruct the jury that an inherently dangerous activity does not include a risk of harm that is not inherent in or a normal part of the work to be performed and that is negligently created solely as a result of the improper manner in which the work under the contract is performed.

This additional provision, which defendants requested be given, properly submitted the question of whether or not Northstar’s negligence was collateral and, if it was, whether or not it was the sole cause of the risk of harm.

[**24] V.P. Fair argues that the judgment notwithstanding the verdict can be sustained on other grounds set forth in its motion for judgment notwithstanding the verdict, even if not relied on by the trial court. See Budding v. Garland Floor Co., 939 S.W.2d 419, 421 (Mo.App. E.D.1996). It requests that we sustain the judgment notwithstanding the verdict on the ground that the inherently dangerous activity exception permits a landowner to be held vicariously liable only for an independent contractor’s negligent acts and not for its reckless acts or on the ground that its release precludes Hatch’s premises liability claim.

Neither of these grounds was raised in V.P. Fair’s motion for directed verdict. [HN15] Rule 72.01(a) requires that a motion for a directed verdict state the specific grounds therefore. Rule 72.01(b) provides that when a motion for directed verdict is not granted, “the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” A motion for judgment notwithstanding the verdict is a motion “to have judgment entered in accordance with the motion for a directed verdict.” Id. For this reason a sufficient [**25] motion for a directed verdict is required to preserve the motion for judgment notwithstanding the verdict and for appeal. Fust v. Francois, 913 S.W.2d 38, 45 (Mo.App. E.D.1995). V.P. Fair’s failure to raise these issues as grounds for its motion for directed verdict precluded it from obtaining a judgment notwithstanding the verdict in its favor on these grounds and further precludes it from obtaining appellate review of the trial [*138] court’s failure to enter judgment notwithstanding the verdict on these grounds. Id.

B. Summary Judgment Issues

In his next three points Hatch asserts the trial court erred in entering summary judgment against him on his claims based on joint venture, premises liability based on retention of control, and Northstar’s negligence. For the reasons stated in Part I, we only address the joint venture claim.

1. Preservation of Error

Defendants initially challenge our jurisdiction to consider any of the points of error based on the summary judgment because they were not raised in the motion for new trial. They argue that for the same reasons that error in granting a directed verdict must be preserved in the motion for new trial, a summary [**26] judgment should be likewise preserved. We disagree. [HN16] On appeal we treat summary judgments as the equivalent of court-tried cases and do not require that such judgments be preserved for review in motions for new trial. Title Ins. Corp. of St. Louis v. United States, 432 S.W.2d 787, 790 (Mo.App. 1968). This rule applies whether or not any issues in the case which were not resolved by summary judgment proceeded to trial.

2. Joint Venture

Hatch asserts the trial court erred in entering summary judgment against him on his claims that V.P. Fair was jointly liable with Northstar on the grounds of joint venture. We disagree. [HN17] A joint venture is an “association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge.” Labor Discount Ctr., Inc. v. State Bank & Trust Co. of Wellston, 526 S.W.2d 407, 424 (Mo.App. 1975) (internal quotations omitted). The elements of a joint venture are: (1) an express of implied agreement among the members; (2) a common purpose to be carried out by the members; (3) a community of pecuniary interests in that common purpose; and (4) an equal voice, giving an [**27] equal right of control in the direction of the enterprise. Eads v. Kinstler Agency, Inc., 929 S.W.2d 289, 292 (Mo.App. W.D.1996).

No express agreement between V.P. Fair and Northstar to act as joint venturers was in the summary judgment record. Further, no such agreement could be implied because the parties’ contract expressly included an addendum that Northstar is an independent contractor and is not authorized to act as an agent or employee of V.P. Fair. [HN18] The existence of a different type of express contract is in itself inconsistent with a claimed relationship of joint venture by implication. Martin v. City of Washington, 848 S.W.2d 487, 495 (Mo. banc 1993); see also Jeff-Cole Quarries, Inc. v. Bell, 454 S.W.2d 5, 16 (Mo. 1970). A court may not imply a joint venture where it is evident a different business form was involved. Rosenfeld v. Brooks, 895 S.W.2d 132, 135 (Mo.App. E.D.1995).

In addition, the record did not support a finding that the parties had a community of pecuniary interest. [HN19] The mere fact that both parties have an economic interest in the activity does not make them joint venturers. Eads, 929 S.W.2d at 292. The community of pecuniary interest requires [**28] that the parties have a right to share in the profits and a duty to share in the losses. United States Fidelity & Guar. Co. v. Houf, 695 S.W.2d 924, 928 (Mo.App. E.D.1985); Labor Discount Ctr., 526 S.W.2d at 424-25. Profit is defined as the excess of income over expenditures. Labor Discount Ctr., 526 S.W.2d at 424. The summary judgment record established that V.P. Fair’s fee was to come out of Northstar’s gross income from the bungee jump operation whether or not Northstar made any profit, and V.P. Fair was not to share in any of Northstar’s losses.

[*139] Lastly, the record does not support a finding that V.P. Fair had an equal right to control the bungee jump. There must be some active participation in the enterprise and some control over the subject matter thereof or property engaged therein. Jeff-Cole Quarries, 454 S.W.2d at 15. The evidence that V.P. Fair chose the site, permitted Northstar to use its logo, took tickets and payment, controlled the crowd, and lined up prospective jumpers does not establish that V.P. Fair had any voice, much less an equal voice, in the details of the operation of the bungee jump. See Archer v. Outboard Marine Corp., 908 S.W.2d 701, [**29] 703 (Mo.App. W.D.1995). Further, defendants presented uncontradicted testimony that no one from the V.P. Fair was in control of physical activities of Northstar’s employees or the manner in which the bungee jump was conducted.

The trial court did not err in granting summary judgment in V.P. Fair’s favor on Counts I and V. This point is denied.

III. Northstar’s and V.P. Fair’s Cross-Appeal

A. Recklessness Claim

1. Existence of a Cause of Action for Recklessness

Defendants contend that Missouri does not recognize a cause of action for recklessness, and therefore, the trial court erred in submitting Hatch’s recklessness claim against Northstar to the jury. In support of their argument, defendants rely chiefly upon Fowler v. Park Corp., 673 S.W.2d 749, 755 (Mo. banc 1984), in which the court noted that “there are no legal degrees of negligence.” We disagree with defendants’ argument.

When the Fowler court said that there are no legal degrees of negligence in Missouri, it was referring to the fact that Missouri does not recognize a doctrine, originally developed in bailment law, which recognizes three “degrees” of negligence: slight negligence, [**30] which is the failure to use great care; ordinary negligence, which is the failure to use ordinary care; and gross negligence, which is the failure to use even slight care. See Prosser and Keeton sec. 34, at 210; see also 57A Am.Jur.2d Negligence secs. 240-43 (1989). This theory has been rejected by the courts of most states, including Missouri. See Fowler, 673 S.W.2d at 755; Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881, 886 n. 11 (Mo. banc 1983). [HN20] The prevailing view is that “there are no ‘degrees’ of care or negligence as a matter of law; there are only different amounts of care, as a matter of fact.” Prosser and Keeton sec. 34, at 211.

[HN21] The fact that Missouri does not recognize legal degrees of negligence has nothing to do with whether Missouri recognizes a cause of action for recklessness. Recklessness looks to the tortfeasor’s state of mind. Id. Recklessness is an aggravated form of negligence which differs in quality, rather than in degree, from ordinary lack of care. Id. It is applied to conduct which is negligent, rather than intentional, but which is so far from a proper state of mind that it is treated in many respects as if it were so [**31] intended. Id. at 212-13.

Missouri recognizes a cause of action for recklessness which our supreme court has explained and defined as follows:

[HN22] Negligence is one kind of tort, an unintentional injury usually predicated upon failure to observe a prescribed standard of care (52 Am.Jur., Sec. 20) while a willful, wanton, reckless injury is another kind of tort, an intentional injury often based upon an act done in utter disregard of the consequences. 52 Am.Jur., Secs. 22, 23; 38 Am.Jur., Secs. 4, 5. Reckless conduct may be negligent in that it is unreasonable but it is and must be something more than unreasonable, “it must contain a risk of harm to others in excess of that necessary to make the conduct unreasonable and therefore, negligent.” 2 Restatement, Torts, p. 1294. “The actor’s (defendant’s) conduct [*140] is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial [**32] harm will result to him.” 2 Restatement, Torts, Secs. 500, 501.

Nichols v. Bresnahan, 357 Mo. 1126, 212 S.W.2d 570, 573 (Mo. 1948).

In this case Hatch proceeded on his recklessness claim after the trial court found that his release precluded his negligence claim but did not release Northstar’s recklessness. ” [HN23] There is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” Alack v. Vic Tanny Int’l of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. banc 1996). This point is denied.

2. Definition of Recklessness in Jury Instructions

Defendants next claim that the trial court erroneously defined recklessness in its instruction to the jury in that the instruction failed to include a standard or degree of care by which to measure Northstar’s actions. We do not reach the merits of this point because Northstar failed to preserve this issue for review.

[HN24] In order to preserve claims of instructional error for review, counsel is required to make specific objections to the instruction at trial and again raise the error in the motion for new trial. Rule 70.03 [**33] provides:

Counsel shall make specific objections to instructions considered erroneous. No party may assign as error the giving or failure to give instructions unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.

Defendants did not make a specific objection at trial to the failure to include a standard of care in Instruction No. 6 at trial. Rather, they objected on different grounds. Counsel stated:

First, it’s not in MAI. Second, there is no independent cause of action for recklessness for Missouri. Third, the standard here is gross negligence and the recklessness definition tendered by the plaintiff is not the proper definition for gross negligence.

[HN25] Where an alleged error relating to an instruction differs from the objections made to the trial court, the error may not be reviewed on appeal. Seidel v. Gordon A. Gundaker Real Estate Co., 904 S.W.2d 357, 364 (Mo.App. E.D.1995); Wilson v. Kaufmann, 847 S.W.2d 840, 846-47 (Mo.App. E.D.1992).

Northstar argues that the objection was not insufficient because a different, more generalized standard should apply [**34] to instructions which are not in MAI and the objection that was given should have alerted the trial judge to the irregularity of the entire submission. We disagree. First, Rule 70.03 is not limited to those instructions which are in MAI. Second, even if one objection can preserve a different one, a contention with which we disagree, none of the specific objections raised was a valid objection and in no way alerted the trial judge to the fact that there might be a different or valid problem with the instruction.

Northstar next requests that if the objection was not preserved, we review for plain error because of the seriousness of the error. We decline to do so. This was a long and complex trial. If the instruction was as seriously erroneous as Northstar contends, counsel should have made that flaw known to the trial court prior to submission to the jury. [HN26] Rule 70.03 is designed to prevent retrials for instructional error which was not brought to the trial court’s attention prior to submission. This point is denied.

[*141] B. Remittitur

In their final point of error, defendants contend that the trial court abused its discretion in refusing to enter a remittitur of the jury’s verdict [**35] because it exceeds reasonable compensation for Hatch’s injuries and damages. Specifically, defendants claim that the damages award greatly exceeds Hatch’s economic damages and is out of line with similar cases.

[HN27] Although the trial court has broad discretion in ordering a remittitur, the assessment of damages is primarily the function of the jury. King v. Unidynamics Corp., 943 S.W.2d 262, 268 (Mo.App. E.D.1997). We will not disturb the trial court’s decision whether or not to reduce damages absent an abuse of discretion so grossly excessive that it shocks the conscience and convinces this Court that both the trial judge and the jury have abused their discretion. Id. In reviewing whether a verdict is excessive, our review is limited to the evidence supporting the verdict. Wright v. Fox-Stanley Photo Prods., Inc., 639 S.W.2d 407, 410 (Mo.App. E.D.1982).

[HN28] There is no precise formula for determining whether a verdict is excessive, and each case must be considered on its own facts with the ultimate test being what fairly and reasonably compensates plaintiff for the injuries sustained. Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 211 (Mo. banc 1991). In Magnuson [**36] by Mabe v. Kelsey-Hayes Co., 844 S.W.2d 448, 458 (Mo.App. W.D.1992), the court listed several factors to assist in the determination of whether an award is excessive. These factors include: (1) present and future loss of income, (2) medical expenses, (3) plaintiff’s age, (4) the nature and severity of the injuries, (5) economic factors, (6) awards given in similar cases, and (7) the superior opportunity of the trial court and jury to appraise plaintiff’s injuries and other damages. Id.

As a result of his fall, Hatch sustained serious injuries to his back, legs, and shoulders. He has undergone six surgeries, including the placement and subsequent removal of spinal hardware devices. Hatch suffers from chronic pain syndrome and depression for which he takes pain medication and antidepressants. He is no longer able to engage in many of the activities he enjoyed prior to the accident. He cannot exercise, participate in sports or actively interact with his four children. Hatch, who was thirty-nine years old at the time of the accident, was terminated by his employer for excessive absences due to his injuries. Prior to his fall, he maintained an exemplary work record and had consistently [**37] received outstanding evaluations. He is presently unable to work as an auditor or accountant because of his inability to concentrate due to ongoing pain and physical limitations. An economic expert testified that Hatch’s past wage losses were $ 37,000 and that his future wage losses were $ 670,000. His medical expenses at the time of trial totaled $ 150,000.

Defendants argue that the jury’s award is excessive when compared to similar cases. This, however, is not the sole test. Fowler v. Park Corp., 673 S.W.2d 749, 758 n.15 (Mo. banc 1984); Bender v. Burlington-Northern R.R. Co., 654 S.W.2d 194, 202 (Mo.App. S.D.1983). The trial court was in the best position to evaluate the evidence regarding Hatch’s injuries and damages. We do not find that the verdict is so grossly excessive as to shock the conscience or that both the jury and the judge abused their discretion. Point denied.

The judgment is affirmed in part and reversed in part. The case is remanded with directions to reinstate the verdict against V.P. Fair and to enter judgment thereon.

James R. Dowd, Judge

Kathianne Knaup Crane, [**38] P.J., concurs.

Mary Rhodes Russell, J., concurs.


Missouri Sales Representative

TITLE 26. TRADE AND COMMERCE (Chs. 400-421)

CHAPTER 407. MERCHANDISING PRACTICES

SALES COMMISSION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

§ 407.911 R.S.Mo. (2013)

§ 407.911. Definitions

As used in sections 407.911 to 407.915, the following terms mean:

(1) “Commission”, compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales, or as a specified amount per order or per sale;

(2) “Principal”, a person, firm, corporation, partnership or other business entity, whether or not it has a permanent or fixed place of business in this state, and who:

(a) Manufactures, produces, imports, provides, or distributes a product or service for sale;

(b) Contracts with a sales representative to solicit orders for the product or service; and

(c) Compensates the sales representative, in whole or in part, by commission;

(3) “Sales representative”, a person, firm, corporation, partnership, or other business entity who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission, but shall not include a person, firm, corporation, partnership, or other business entity who places orders or purchases for its own account for resale.

§ 407.912. Commission to become due, when — termination of employment, all commissions due, when

1. When a commission becomes due shall be determined in the following manner:

(1) The written terms of the contract between the principal and sales representative shall control;

(2) If there is no written contract, or if the terms of the written contract do not provide when the commission becomes due, or the terms are ambiguous or unclear, the commission shall be paid when the product or service is delivered and accepted by the purchaser or the principal receives satisfaction in full;

(3) If neither subdivision (1) nor (2) of this subsection can be used to clearly ascertain when the commission becomes due, then the commission shall be due on the date the principal accepts the order and receives satisfaction in full, unless the custom and usage prevalent in this state for the parties’ particular industry is different, in which event such custom and usage shall prevail.

2. Nothing in sections 407.911 to 407.915 shall be construed to impair a sales representative from collecting commissions on products or services ordered prior to the termination of the contract between the principal and the sales representative but delivered and accepted by the purchaser after such termination.

3. When the contract between a sales representative and a principal is terminated, all commissions then due shall be paid within thirty days of such termination. Any and all commissions which become due after the date of such termination shall be paid within thirty days of becoming due.

§ 407.913. Failure to pay sales representative commission, liability in civil action for actual damages — additional damages allowed — attorney fees and costs

Any principal who fails to timely pay the sales representative commissions earned by such sales representative shall be liable to the sales representative in a civil action for the actual damages sustained by the sales representative and an additional amount as if the sales representative were still earning commissions calculated on an annualized pro rata basis from the date of termination to the date of payment. In addition the court may award reasonable attorney’s fees and costs to the prevailing party.

§ 407.914. Out-of-state principal with sales representative soliciting in this state, Missouri courts to have jurisdiction

A principal who is not a resident or citizen of this state who contracts with a sales representative to solicit orders in this state is declared to be transacting business in this state for purposes of the exercise of jurisdiction of the courts of this state under section 506.500.

§ 407.915. Civil action for all claims against principal may be joined–express or contract waivers of commission laws, invalid

1. Nothing in sections 407.911 to 407.915 shall invalidate or restrict any other or additional right or remedy available to a sales representative from seeking to recover in one action on all claims against a principal.

2. A provision in any contract between a sales representative and a principal purporting to waive any provision of sections 407.911 to 407.915, whether by expressed waiver or by a contract subject to the laws of another state, shall be void.

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Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

A judge that works hard to find problems does not help.

This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.

The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.

Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:

I.                  Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;

II.               Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;

III.           Defendant created a dangerous condition by making artificial snow; and

IV.            IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.

The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.

Summary of the court’s analysis

The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:

·        Trespasser

·        Invitee

·        Business Invitee

Here, the injured skiers were either “invitees” or “business invitees.”

An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.

The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.

·        Express

·        Implied

·        Primary

·        Implied Secondary

Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.

The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.

Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.

Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…

The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.

The court found, even though the release used the term negligence, it was not enough.

In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!

In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”

The court held the word negligence in this release was too broad and covered claims that could not be released.

The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”

The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.

The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”

The court then went back to the assumption of the risk discussion.

Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.

Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.

…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.

The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”

The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.

The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.

So Now What?

The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.

1.      Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.

2.    Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.

3.    No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.

4.    If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)

5.     If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.

And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.

Plaintiff: Lesa Moffatt and Carrie Lewis

 

Defendant: Snow Creek, Inc.

 

Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence

 

Defendant Defenses: Assumption of the Risk

 

Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.

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

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