Morgan, et al., v. Water Toy Shop, Inc., et al., 2018 U.S. Dist. LEXIS 61546

Morgan, et al., v. Water Toy Shop, Inc., et al., 2018 U.S. Dist. LEXIS 61546

Jasmine Nicole Morgan, et al., Plaintiffs,

v.

Water Toy Shop, Inc., et al., Defendants.

Civil No. 16-2540 (PAD)

United States District Court, D. Puerto Rico

March 30, 2018

OPINION AND ORDER

PEDRO A. DELGADO HERNÁNDEZ, United States District Judge

This case arises out of a tragic accident, a collision between two jet skis -one ridden by plaintiffs Jasmin Nicole Morgan and Jarita Kennedy, and the other by Mark A. Castro- in the territorial waters of Puerto Rico (Docket No. 1).[1] In essence, the complaint alleges that: (1) Castro was grossly negligent in operating the jet ski, seriously injuring plaintiffs (id. at ¶ 51); and (2) Water Toy Shop, Inc., Acosta Water Sports, Inc., and Axel Acosta, who rented the jet skis, did not adequately train Castro to operate the jet ski, and as owners of the jet ski that Castro was riding are liable for the damages claimed. Id.

Before the court is defendants Water Toy Shop’s, Axel Acosta’s and Ironshore Indemnity, Inc.’s “Motion for Summary Judgment and Memorandum of Law in Support Thereof” (Docket No. 52), which plaintiffs opposed (Docket No. 61). Defendants replied (Docket Nos. 69), and plaintiffs surreplied (Docket No. 73). For the reasons explained below, the motion is GRANTED and plaintiffs’ claims against the appearing defendants DISMISSED.[2]

I. SUMMARY JUDGMENT STANDARD

Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate when the record shows no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it has the potential of determining the outcome of the litigation. Farmers Ins. Exchange v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011)(quoting Rodríguez-Rivera v. Federico Trilla Regional Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008)).

In assessing a motion for summary judgment, the court must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor. Griggs-Ryan, 904 F.2d at 115 (citations omitted). There is no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, and no room for the judge to superimpose his own ideas of probability and likelihood . Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir. 1987). The court may, however, safely ignore conclusory allegations, improbable inferences, and unsupported speculation. Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted).

II. UNCONTESTED FACTS[3]

Plaintiffs are residents of Washington, D.C. See, Docket No. 52-1, “Statement of Uncontested Material Facts in Support of Motion for Summary Judgment” (“SUMF” at ¶ 1). While vacationing in Puerto Rico, they rented a jet ski from Archie Jet Ski Rental (SUMF ¶ 4), the name used to advertise Water Toy Shop and Acosta Water Sports, two separate corporations that operate different jet ski rental stands in the Isla Verde beach area in Carolina, Puerto Rico. See, PSUMF at ¶ 6 and defendants’ response at Docket No. 69-1 pp. 26-27.[4] Water Toy owned the jet skis involved in the accident, and operated the stand where the jet skis were rented. SUMF ¶ 5; PSUMF ¶¶ 14, 6, 36.

In order to rent the jet ski, both plaintiffs signed a “Personal Watercraft Rental Operations Release of Liability, Waiver of Claims, Express Assumption of Risk and Indemnity Agreement” (“Rental Agreement”) and a “Declaration of Fitness to Operate Personal Watercraft” (“Declaration of Fitness”). SUMF ¶ 7, ¶10.[5] The Rental Agreements read as follows:

PERSONAL WATERCRAFT RENTAL OPERATIONS RELEASE OF LIABILITY, WAIVER OF CLAIMS, EXPRESS ASSUMPTION OF RISK AND INDEMNITY AGREEMENT

Please and be certain you understand the implications of signing. Express Assumption of Risk Associated with use of rental of Personal Watercraft and Related Activities I,, do hereby affirm and acknowledge that I have been fully informed of the inherent hazards and risks associated with motorized (e.g., jet ski) or non-motorized (e.g., kayak) and related water sport activities to which I am about to engage, including but not limited to:

1) changing water flow, tides, currents, wave action, and ship’s wakes;

2) collision with any of the following:

a) other participants,

b) the watercraft,

c) other watercraft,

d) man made or natural objects,

e) shuttle boat;

3) wind shear, inclement weather, lightning, variances and extremes of wind, weather and temperature;

4) my sense of balance, physical condition, ability to operate equipment, swim and/or follow directions;

5) collision, capsizing, sinking, or other hazard that may result in wetness, injury, exposure to the elements, hypothermia, impact of the body upon the water, injection of water into my body orifices, and/or drowning;

6) the presence of insects and marine life forms;

7) equipment failure or operator error;

8) heat or sun related injuries or illnesses, including sunburn, sun stroke or dehydration;

9) fatigue, chill and/or reaction time and increased risk of accident.

I specifically acknowledge that I read, understand and agree to abide by the Personal Watercraft Operational instructions at all times and that I have been trained in the safe use of watersport equipment to my complete satisfaction, and I am physically/mentally able to participate in the water sport activities to which I am about to engage.

I specifically waive any defense insofar as this contract is concerned that may arise as a result of any state or local law and/or regulation or policy that may impact its enforceability.

RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT.

In consideration of being allowed to participate in the above-described activities, as well as the use of any of the facilities and the use of the equipment of the below listed releases, I hereby agree as follows:

1) To waive and release any and all claims based upon negligence, active or passive, with the exception of intentional, wanton, or willful misconduct that I may have in the future against all of the following named persons or entities herein referred to as releasees.

Water Toy Shop, Inc. Owner (Company and/ or Individual)

___ (Scheduled Personal Watercraft)

___ (Scheduled Shuttle Boat (if applicable)

2) To release the releasees, their officers, directors, employees, representatives, agents, and volunteers, and vessels from any liability and responsibility whatsoever and for any claims or causes of action that I, my estate, heirs, executors, or assigns may have for personal injury, property damage, or wrongful death arising from the above activities, whether caused by active or passive negligence of the releassees or otherwise, with the exception of gross negligence. By executing this document, I agree to hold the releases harmless and indemnify them in conjunction with any injury or loss of life that may occur as a result of engaging in the above activities.

3) By entering into this agreement, I am not relying on any oral or written representation or statements made by the releasees, other than what is set forth in this Agreement.

I hereby declare that I am of legal age and am competent to sign this Agreement or, if not, that my parent or legal guardian shall sign on my behalf and that my parent or legal guardian is in complete understanding and concurrence with this Agreement.

I have read this Agreement, understand it, and I agree to be bound by it. SUMF at ¶¶ 8, 20 (bold emphasis in the original, underlined emphasis added).[6] The Declarations of Fitness state: “by signing this form I still choose to participate in the activity with the rental property and agree to waive all responsibilities to all the above mentioned parties concerning any consequences that would result from my actions.” SUMF at ¶ 9.[7] Morgan did not read the contents of the Rental Agreement and Declaration of Fitness before signing them, or at any time before boarding the rented jet ski, despite having around one hour to spare between the time she signed the documents and when she boarded the jet ski.[8] Neither did she ask Water Toy personnel anything about the document. SUMF at ¶ 11.

Before Castro was allowed to rent the jet ski, he was asked for his I.D. in order to verify that he was old enough to rent a jet ski, which he was; he signed a Rental Agreement and Declaration of Fitness; and was informed of the boundaries within which he could ride, the applicable speed limit and to stay clear of other people. SUMF at ¶ 13, 15.[9] To that end, Mr. Héctor Peralta informed Castro the price for the jet ski ride; explained that he could only ride between the ESJ Tower and the Water Club Hotel; warned him stay away from the swimming area; told him to go slow until he passed the buoys; cautioned him not to get close to a nearby natural reserve and to stay away from other objects or persons because jet skis don’t have breaks; described how the jet skis worked; let him know that when his time was up an employee would let him know; and provided him copy of a Rental Agreement and Declaration of Fitness, explaining their contents and having him sign them. SUMF at ¶ 16.[10]

Additionally, Mr. Jonathan Pérez informed Castro of the boundaries he had to observe whilst riding, by pointing out the ESJ Tower, the Water Club Hotel and the buoys; told him not to ride too far away so that help could get to him straight away in case something happened; warned him not to go over five miles per hour as he left the buoys area in front of the Water Toy stand and when he rode back to it to return his jet ski; and asked him to stay far away from people to avoid any accident. SUMF at ¶ 17.[11] Plaintiffs were taking a break in their jet ski, drifting next to the buoys in front of the Water Toy stand, when Castro’s jet ski collided with theirs at high speed, without warning. SUMF at ¶ 19.

III. DISCUSSION

A. General Principles

Plaintiffs claim defendants are liable to them under Puerto Rico law (Docket No. 61, pp. 2-3), which defendants deny (Docket No. 51, p. 1), stating that general principles of maritime law rather than local law apply in this case, and under those principles they are not liable. Id. at p. 2. Because this case “involves a watercraft collision on navigable waters, it falls within admiralty’s domain.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996). With admiralty jurisdiction comes the application of substantive admiralty law. Id. Federal maritime law may be supplemented by state law to the extent that it “would not disturb the uniformity of maritime law.” Kossick v. United Fruit Co., 365 U.S. 731, 738 (1961).

In maritime law, “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests [e.g., passengers] the duty of exercising reasonable care under the circumstances of each case.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959); Muratore v. M/S Scotia Prince, 845 F.2d 347, 353 (1st Cir. 1988)(under maritime law, “a carrier owes a duty of exercising reasonable care towards its passengers under the circumstances”). The degree of required care must be in proportion to the apparent risk. See, Muratone, 845 F.3d at 353 (discussing concept)(citing Prosser, Law of Torts, Section 34, at 180 (4th ed. 1971)).

Plaintiffs contend that defendants are directly and vicariously liable under Puerto Rico law because Congress allowed Puerto Rico to adopt liability standards inconsistent with maritime law (Docket No. 61 at pp. 12-20). Congress can alter, qualify, or supplement admiralty law as it sees fit, provided it neither excludes a thing that falls clearly within the admiralty and maritime law nor includes a thing that clearly falls without, as long as the statute is coextensive with and operates uniformly in the whole of the United States. See, Zych v. Unidentified Wrecked and Abandoned Vessel, Believed to be the Seabird, 19 F.3d 1136, 1140 (7th Cir. 1994)(examining congressional power to revise and supplement maritime law).

However, Puerto Rico is an unincorporated territory of the United States. See, Maysonet-Robles v. Cabrero, 323 F.3d 43, 53 (1st Cir. 2003)(so describing Puerto Rico). It belongs to, but is not part of the United States, a category considered “foreign … in a domestic sense.” See, United States v. Lebrón-Cáceres, 157 F.Supp.3d 80, 88 & n.11 (D.P.R. 2016)(discussing Puerto Rico’s territorial status)(quoting Downes v. Bidwell, 182 U.S. 244, 287, 341-342, 346-347 (1901)). Accordingly, “… Congress can, pursuant to the plenary powers conferred by the Territorial Clause [U.S. Const. art. IV, § 3, cl. 2], legislate as to Puerto Rico in a manner different from the rest of the United States.” U.S. v. Rivera-Torres, 826 F.2d 151, 154 (1st Cir. 1987).[12]

In 1917, Congress enacted Puerto Rico’s second organic act, commonly known as the Jones Act, 39 Stat. 951, Act of March 2, 1919.[13] Under Section 37 of the Jones Act, the legislative authority of Puerto Rico extended “to all matters of a legislative character not locally inapplicable.” In turn, Section Eight read:

The harbor areas and navigable streams and bodies of water and submerged lands underlying the same in and around the island of Puerto Rico and the adjacent islands and waters, owned by the United States on March 2, 1917, and not reserved by the United States for public purposes, are placed under the control of the government of Puerto Rico … All laws of the United States for the protection and improvement of the navigable waters of the united States and the preservation of the interests of navigation and commerce, except so far as the same may be locally inapplicable, shall apply to said island and waters to its adjacent islands and waters.

Both provisions were reenacted as part of the Federal Relations Act. See, 48 U.S.C. §§ 749 and 821.[14] Interpreting and applying them in the context of admiralty and maritime law, the First Circuit held in Guerrido v. Alcoa Steamship Co., 234 F.2d 349 (1956), that the rules of admiralty and maritime law of the United States “are presently in force in the navigable waters of the United States in and around the island of Puerto Rico to the extent that they are not locally inapplicable either because they were not designed to apply to Puerto Rican waters or because they have been rendered inapplicable to these waters by inconsistent Puerto Rican legislation, ” provided that legislation does not “supplant a rule of maritime law which Congress in the exercise of its constitutional power has made applicable to Puerto Rican waters.” Id. at p. 355 (Emphasis added).[15] In line with Garrido, plaintiffs argue that defendants authorized Castro to operate the jet ski, and as a result, are liable for the resulting damages under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 §§ 5141-5142, and Puerto Rico Law 430 of December 21, 2000, P.R. Laws Ann. tit. 12 §§ 1401-1411 (Docket No. 61, pp. 4-7, 15-20). Because it is undisputed that Water Toy owned and rented the jet skis, unless otherwise stated the court circumscribes the discussion of potential liability to that entity.

B. Puerto Rico Law

Article 1802 imposes liability for personal acts, not for acts of others, providing in part that “a person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.” P.R. Laws Ann. tit. 31 § 5141. See, Burgos-Oquendo v. Caribbean Gulf Refining Corp., 741 F.Supp. 330, 332 (D.P.R. 1990)(discussing concept). To establish liability, the plaintiff must show: (i) a duty of care requiring defendant to conform to a certain standard of conduct; (ii) breach of that duty; (iii) damages; and (iv) a causal connection between the breach and the damages. See, De-Jesús-Adorno v. Browning Ferris Industries of Puerto Rico, Inc., 160 F.3d 839, 842 (1st Cir. 1995)(so explaining).

In general, the duty of care is defined by the tenet that one must act as would a prudent and reasonable person under the same circumstances. See, Vázquez-Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 49 (1st Cir. 2007)(so observing). This includes complying with statutes, regulations, and ordinances relevant to the action. See, Sánchez v. Seguros Triple S, Inc., 687 F.Supp.2d 6, 9 (D.P.R. 2010)(setting forth and applying formulation). The standard applies to those who operate businesses for profit, commanding them to exercise reasonable care toward business invitees. See, Calderón-Ortega v. U.S., 753 F.3d 250, 252 (2014)(recognizing obligation).

In turn, Article 1803 codifies a special type of vicarious liability, a type of liability based in part on the acts or omissions of others. See, P.R. Laws Ann. tit. 31 § 5142. To that end, it states that the obligation imposed by Article 1802 “is demandable not only for personal acts and omissions, but also for those of the persons for whom …[the defendant is] responsible, ” including under that rubric the liability of the father or mother for damages caused by minor children; of guardians for the damage cause by the person under their authority who live with them; of employers for the damage caused by an employee acting in the course of his employment; of masters or directors of arts and trades for damage caused by their pupils or apprentices; and of the Government of Puerto Rico under certain pre-established circumstances. Id. The enumeration is taxative, not of an exemplary nature. See, Burgos-Oquendo, 741 F.Supp. at 333 (so acknowledging). Imposition of vicarious liability in other instances must be anchored in alternate precepts or legislation, like Law 430. See, id. (dismissing complaint brought against lessor under Article 1803 in absence of provision establishing responsibility in the lessor for actions of the lessee).

At common law, vicarious liability implies that by reason of some preexisting relation between two parties, one of them may be held automatically liable to a third party for the negligence of the other even if he is free from fault. See, Prosser and Keeton, The Law of Torts, West Publishing Co., 1984, p. 499 (explaining concept). The doctrine applies in admiralty unless excluded by statute. See, Thomas J. Schoenbaum, supra at p. 188 (so noting). In that context, the negligence of employees is imputed to the owner of the vessel upon a finding of master-servant relationship, but in absence of that relationship, the shipowner is not liable in personam for the negligence of persons to whom the vessel is entrusted. Id. Under Article 1803, however, liability does not attach if the defendant shows that he employed the diligence expected of a good father of family, the bonus pater familias, to prevent the damage. Id. Diligence is predicated on how a prudent and reasonable man would have acted in connection with the obligations arising from the situations enumerated in Article 1803. See, Pueblo v. Rivera Rivera, 23 P.R. Offic. Trans. 641, 1989 WK 607294, *§ V (Rebollo López, J., concurring)(analyzing standard).

By contrast, Law 430 operates much like vicarious liability does at common law, providing in part that “[t]he owner of any ship or navigation vessel shall be responsible for damages caused when operating any of these, with fault or negligence, and when it is operated or under control of any person who, with the main purpose of operating or allowing it to be operated by a third party, obtains possession of it through express or tacit authorization of the owner.” P.R. Laws Ann. tit. 12 § 1406(6)(h). By extension, it imposes liability on the principal -the vessel’s owner- for the damages caused by the wrongful operation of the vessel when that vessel has been operated with the owner’s express or tacit authorization, irrespective of whether the owner has acted -in the words of Article 1803 of the Civil Code- with the diligence of a good father of family to avoid the damage.

As enacted, the provision is preempted by the Limitation of Liability Act of 1851, as amended, 46 U.S.C. § 30501 et seq., because it conflicts with the negligence standard set in the federal statute. See, In the Matter of Rockaway Jet Ski, LLC, 2016 WL 8861617, *603-*604, (holding New York’s Navigation Act § 48 preempted by Limitation Act, as it imposes vicarious liability on the owners of personal watercrafts if the watercraft is operated by a person who used it with the owner’s permission, irrespective of the owner’s wrongdoing)(quoting In re Hartman, 2020 WL 1529488, *4 n.10 (D.N.J. Apr. 15, 2010)(to the extent the claimant argues that the jet ski owner is strictly liable under state law, the claim is preempted because the state’s strict liability standard directly conflicts with the negligence standard of the Limitation Act)). For the same reason, so too here. And given that the Limitation Act applies in Puerto Rico, [16] its preemptive effect comports with Garrido, banning reliance on Law 430 to impose vicarious liability on the vessel owner in the absence of the owner’s negligence.

Against this background, plaintiffs argue that Water Toy Shop violated Law 430 in: (1) operating an illegal additional kiosk a quarter of a mile east of the area specified in the permit issued by the Puerto Rico Department of Natural Resources (“DNR”); (2) renting a jet ski that was not expressly identified in the permit; (3) using a rental ski as a patrol boat operated by a licensed individual who nevertheless had not received the required first aid training; (4) operating a rental stand without a valid navigation license; (5) keeping defective records lacking customers’ identification, addresses, tag of the jet ski used and date and time it was returned; and (6) renting skis without informing customers of navigation rules, safety briefing and prohibited activities (Docket No. 61 at pp. 5-7), making it liable for the collision and resulting damages. But merely violating a statute or regulation is not a synonym for liability in Puerto Rico, since in order for liability to attach, there must be a causal relationship – adequate cause – between the violation and the damages. See, González v. Puerto Rico Elec. Power Authority, 1993 WL 525644, *8 (D.P.R. Nov. 23, 1993)(so holding)(citing Pacheco v. A.F.F., 12 P.R. Offic. Trans. 367 (1982)).[17]

Adequate cause is not an event in the absence of which the damage would not have occurred, but that which in general experience causes it. See, Cárdenas Mazán v. Rodríguez Rodríguez, 125 D.P.R. 702, 710 (1990) (so stating); Ganapolsky v. Boston Mut. Life Ins. Co., 138 F.3d 446, 447-448 (1st Cir. 1998)(accidental injury to plaintiff’s left foot resulting from tripping on a two-inch step at entrance to men’s room in a theater not adequate cause of gangrene requiring foot’s amputation, as the infection that lead to the gangrene normally does not arise from tripping on a step). As such, causation is a function of foreseeability, requiring plaintiff to show that the injury was reasonably foreseeable. See, Marshall v. Pérez Arzuaga, 828 F.2d 845, 847 (1st Cir. 1987)(discussing foreseeability as part of the “causal nexus” element of tort action); Vázquez-Filipetti, 504 F.3d at 49 (highlighting centrality of foreseeability to a successful tort claim).[18]

Within this framework, that violations may have occurred in connection with items (1) to (5)-an unsubstantiated assumption at best- is not causally linked to Castro’s crashing of his jet ski onto plaintiffs’, for there is no evidence in the record showing it was foreseeable for a reasonable person to anticipate that a jet-ski collision would result from those violations.[19] Foreseeability cannot be established through the simple fact that an accident occurred. Id. (so recognizing).[20]The situation is no different in admiralty. See, Poulis-Minott v. Smith, 388 F.3d 354, 363 (1st Cir. 2004)(dismissing claim in admiralty for lack of proof that under the circumstances, there was a reasonable possibility that compliance with the regulatory standard would have prevented the accident).[21]

Water Toy’s obligation to provide Castro with an oral or written orientation on the navigation rules the Commissioner of Navigation of Puerto Rico prepared in accordance with Law 430 stands on a different footing, as it directly implicates the provision of information necessary to safely operate the jet ski. See, Wills v. Amerada Hess Corp., 379 F.3d 32, 42-45 (2d Cir. 2004)(distinguishing between statutory or regulatory provisions naturally and logically linked to maritime safety and those not so linked). The uncontested facts, however, show that Water Toy did provide adequate training to Castro in connection with the operation of the jet ski as well as of the applicable navigation rules. See, SUMF at ¶ 15-17. And the Rental Agreement Castro executed additionally confirms that he: (1) was fully informed of the inherent risks associated with jet skis; (2) understood and agreed to abide by the personal watercraft operational instructions he was given; and (3) was trained in the safe use of water sport equipment to his complete satisfaction. All in all, the record does not sustain a finding of liability against Water Toy deriving from a negligent act causally connected to the damages claimed.

C. Waivers

Beyond the issue of liability, plaintiffs executed a waiver precluding liability as to Water Toy and Axel Acosta – Water Toy’s sole owner and president, representative and agent – except for gross negligence, which the complaint only imputed to Castro. Plaintiffs attack the waiver, essentially characterizing it as unenforceable (Docket No. 61, at pp. 20-31). Voluntary waivers of liability for negligence in maritime activities are enforceable provided they: (1) are consistent with public policy; (2) do not configure a contract of adhesion; and (3) are drafted in clear and unambiguous language. See, Olmo v. Atlantic City Parasail, 2016 WL 1704365, *9 (D.N.J. April 28, 2016)(articulating and applying test)(citing Olivelli v. Sappo Corp., Inc., 225 F.Supp.2d 109, 116 (D.P.R. 2002)). By these standards, the waivers that plaintiffs signed are valid and enforceable.

First, exculpatory clauses waiving liability for negligence in maritime recreational activities are consistent with public policy. See, Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F.Supp.2d 1295, 1299 (D. Nevada 2013)(so acknowledging); Olmo, 2016 WL 1704365, at *10 (same).[22] Thus, parties may enter into agreements to allocate risks inherent in those activities, allowing operators to contractually disclaim liability for their own negligence. See, Brozyna v. Niagara Gorge Jetboarding, Ltd., 2011 WL 4553100, *4-*5 (W.D. N.Y. Sept. 29, 2011)(explaining exculpatory waivers).[23] Relying on In the Matter of Rockaway Jet Ski LLC, 2016 WL 8861617, however, plaintiffs argue the waiver violates public policy because it has been invoked to prevent them from asserting negligence claims based on the violation of Law 430, a safety statute which, at bottom, does not contain a waiver authorization clause (Docket No. 61, at pp. 23, 27).

In Rockaway, the court evaluated whether an exculpatory clause can release negligence claims premised on the violation of a state safety statute, New York Navigation Law 73(a)(2), which (1) required businesses renting personal watercraft to provide a video or in-water demonstration of how to safely operate watercraft; and (2) prohibited those businesses from renting a personal watercraft to an individual unless that individual demonstrated ability to (i) operate the personal watercraft, and (ii) use applicable safety equipment. Id. at *595-*596. The court surveyed relevant caselaw, finding that some jurisdictions considering the same question did not permit parties to waive negligence claims premised on the violation of safety statutes, whereas other jurisdictions permitted the waivers. Id. at *598-*599. It sided with the former, noting “the apparent absence of an established admiralty rule on this question, ” (id. at *601); that statutory violations amount to negligence per se; and that waivers of a negligence per se claim violate public policy. Id. at *602.

Applying the reasoning to Law 430, the only statutory item involving safety is the one requiring information to safely operate the jet ski. But renting out a jet ski without taking steps to provide for its safety operation falls within the realm of negligence regardless of whether it is statutorily required. See, In re Hartman, 2010 WL 1529488, *4 (D.N.J. Apr. 15, 2010)(no need to resort to state safety statute to establish negligence in case originating in jet ski accident, because irrespective of statute, ski owner owed plaintiff a duty of care). And as pointed out above, those actions may be waived. See, Waggoner, 141 F.3d at *8-*9 (rejecting argument that exculpatory clause in recreational boat rental contract violated public policy based in part on Restatement (Second) of Contracts’ explanation that “a party to a contract can ordinarily exempt himself from liability for harm caused by his failure to observe the standards of reasonable care imposed by the law of negligence”). Moreover, although Law 430 imposes vicarious liability, that type of liability is less about boat safety and more about ensuring compensation for injured parties. See, Rockaway, 2016 WL 8861617 at *604 (so observing in validating waiver to protect vessel owner from vicarious liability imposed by state navigation law). In the end, Law 430 does not prohibit waivers, and neither does public policy.

Second, adhesion contracts are “take it or leave it” contracts with no opportunity for negotiation between parties with unequal bargaining power. Id. at *6 (delineating elements of adhesion). The definition does not fit waivers used in connection with voluntary recreational pursuits rather than rendition of essential services such as medical care, where courts would be more likely to find that a contract of adhesion exists. See, Olmo, 2016 WL 1704365 at *10 (so recognizing). For the same reason, liability waivers for voluntary recreational activities in navigable waters are not considered adhesion contracts, as the plaintiff has the option of signing or turning around and declining to do business with the defendant. Id. (waiver in case involving parasailing and related activities). So too here, for plaintiffs were free to choose another jet ski rental company or leave the beach without ridding a jet ski at all. See Olivelli, 225 F.Supp.2d at 110-11, 118-120 (waiver of liability not considered adhesion contract in part because scuba diving is a strictly voluntary recreational pursuit and deceased was free to decline defendant’s services if she did not wish to assent to the terms of the waiver); Brozyna, 2011 WL 4553100 at *6 (same with respect to jetboating excursion, as plaintiff had to option to decline to participate in the excursion); Murley ex rel. Estate of Murley v. Deep Explorers, Inc., 281 F.Supp.2d 580, 589-590 (E.D.N.Y. 2003)(if scuba diver did not agree to or understand any of the clauses of the release, he was free to write “VOID” or decline defendant’s services).[24]

Third, the waivers are clear and unambiguous. Their language (1) identified the specific risks inherent to and associated with riding a jet ski;[25] (2) explained and highlighted the fact that, by executing the Agreement, plaintiffs waived and released any and all claims based upon negligence against Water Toy, its officers, directors, employees, representatives, agents, and volunteers and vessels; and (3) stated that plaintiffs accepted responsibility for the consequences of riding the rented jet skis. The language should have put plaintiffs on notice of its legal significance and effect. Murley, 281 F.Supp.2d at 580-581, 591 (validating liability release with similar characteristics in dismissing action arising out of scuba diving accident that resulted in diver’s death). Even more, both plaintiffs and Castro signed the Agreements before boarding their respective jet skis, acknowledging that they (1) were fully informed of the hazards and risks associated with the jet ski and related water sports activities, including collision with other participants or watercrafts; (2) read, understood, and agreed to abide by the “Personal Watercraft Operational” instructions at all times; (3) were trained in the safe use of watersports equipment to their complete satisfaction; and (4) were physically and mentally able to participate in the water sports activities.

Fourth, plaintiffs are college-educated U.S. citizens, who were interested in participating in a recreational, hazardous maritime activity, one conditioned upon the jet ski’s owner and renter being released from liability as set forth in the waivers, a condition plaintiffs voluntarily agreed to.[26] Plaintiffs state that Ms. Morgan signed the documents without reading them (Docket No. 61-1 at ¶ 11). Nonetheless, the defendant is entitled to rely in good faith upon the reasonable appearance of consent that plaintiff created. See, Chieco v. Paramarketing, Inc., 228 A.D.2d 462, 643 N.Y.S.2d 668 (2d Dept. 1996)(holding release and waiver for paragliding lesson valid despite plaintiff’s allegation that he did not read or understand the document), cited in Murley, 281 F.Supp.2d at 591; Dan B. Dobbs, The Law of Torts, 217-218 (West 2000) (discussing defendant’s reasonable reliance on plaintiff’s acts and words to infer binding consent). Private and uncommunicated reservations to a waiver does not subject defendant to liability. See, Dan B. Dobbs, supra (so noting). Therefore, plaintiffs cannot escape the consequences of their voluntary decisions, bypassing the contracts they signed to avoid the legal consequences of their free choice, for there is no evidence of deceit, violence or intimidation exerted on plaintiffs to coerce or wrongfully induce them to sign the waivers, or that they did so by mistake, thinking they were signing something else. See, P.R. Laws Ann. tit. 31 § 3404 (codifying elements voiding consent under Puerto Rico law, to include violence, intimidation, deceit and error); Cutchin v. Habitat Curacao-Maduro Dive Fanta-Seas, Inc., 1999 WL 33232277, *3 (S.D. Fla. Feb. 8, 1999)(applying pre-accident waiver to dismiss action arising from diving accident, as there was no evidence showing that plaintiff was coerced to sign the document); Murley, 281 F.Supp.2d at 590 (dismissing suit based on scuba diver’s death in part because there was no evidence that defendants procured release by fraud or that deceased signed release under duress); .

Plaintiffs posit the waivers mention negligence but not fault, and cannot bar their action because the complaint alleges that their damages result from defendants’ “fault” or “negligence” (Docket No. 61 at p. 25). These terms have specific meanings in the civil code context of Puerto Rico law. See, CMI Capital Market Investment, LLC v. González-Toro, 520 F.3d 58, 64 (1st Cir. 2008)(so recognizing). Fault consists in the failure to exercise due diligence, the use of which would have prevented the wrongful result, and requires the execution of a positive act causing a damage to another person different from the one who executed it. Id. Negligence supposes an omission producing the same effect as fault (id.), predicated as with fault, on the failure to exercise due diligence. See, Sánchez v. Esso Standard Oil de Puerto Rico, Inc., 2010 WL 3069551, *4 (D.P.R. Aug. 2, 2010)(discussing terms). Both concepts “have in common that the act be executed or the omission incurred without an injurious intent, ” González-Toro, 520 F.3d at 64, and for the same reason, have been described as “faces of the same coin.” Sánchez, 2010 WL 3069551 a *4 (quoting Gierbolini v. Employers Fire Ins. Co., 4 P.R. Offic. Trans. 1197, 1201 (1976).

On this reading, it is apparent that to the extent the waiver mentions negligence it necessarily contemplates the failure to exercise due diligence, the same operative feature underlying fault, reflecting the waiver’s reference to both active and passive negligence. See, Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991)(“An actor is at fault, or negligent, when he fails to exercise due diligence to prevent foreseeable injury”)(emphasis added). Even more, plaintiffs’ factual allegations are couched in negligence, not fault. See, Complaint, ¶ 30 (“As a consequence of the accident caused by the negligence of all defendants, … [Ms. Morgan] has suffered mental anguish, physical injuries and scars;” ¶ 43 (“As a consequence of the accident caused by the negligence of all defendants,, , [Ms. Kennedy] has suffered mental anguish, and physical injuries”).

Plaintiffs allege the waiver does not mention Axel Acosta, the insurance company, or Acosta Water Sports (Docket No. 61, pp. 27-28). Nonetheless, the waiver expressly releases Water Toy Shop’s officers, directors, and agents, and Axel Acosta is Water Sports’ president and resident agent (Docket No. 61-1 at ¶ 23). In addition, the insurance company’s exposure is linked to that of its insured. If the action fails as to Water Toy Shop and Axel Acosta, there is no viable claim against their insurer. Acosta Water Sports would not benefit from the waiver, though, as it is not one of the releases. Only one conclusion follows: the waivers and releases are valid, and must be enforced except as to Acosta Water Sports.

IV. CONCLUSION

For the reasons stated, the motion for summary judgment (Docket No. 52) is GRANTED and the claims against Water Toy, Axel Acosta and Ironshore Indemnity DISMISSED WITH PREJUDICE. Since it is uncontested that Acosta Water Sports is not the owner of the jet skis at issue, and did not seem to have incurred in any wrongdoing related to the accident, plaintiffs shall show cause, by April 20, 2018 as to why their claims against Acosta Water Sports should not be dismissed as well. In their motion, plaintiffs shall include relevant caselaw arising out of analogous facts and procedural settings in support of their position.

SO ORDERED.

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Notes:

[1] Collisions have been described as “the most feared catastrophe of every mariner.” Thomas J. Schoenbaum, Admiralty and Maritime Law, Vol. 2, 103 (West 5th ed. 2011).

[2] Castro was sued and served with process, but failed to appear and the Clerk entered default against him (Docket No. 77).

[3] Except otherwise noted, the facts included in this section are drawn from the parties’ Local Rule 56 submissions (Docket No. 52-1, Docket No. 61-1, Docket No. 69-1). Local Rule 56 is designed to “relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute.” CMI Capital Market Investment, LLC v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It requires a party moving for summary judgment to accompany its motion with a brief statement of facts, set forth in numbered paragraphs and supported by citations to the record, that the movant contends are uncontested and material. Local Rule 56(b) and (e). The opposing party must admit, deny, or qualify those facts, with record support, paragraph by paragraph. Id. 56(c), (e). The opposing party may also present, in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c). While the district court may “forgive” a violation of Local Rule 56, litigants who ignore the rule do it “at their peril.” Mariani-Colón v. Department of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).

[4] At his deposition, Axel Acosta explained that these corporations operate separately, with their own permit and insurance. Their personnel, however, is interchangeably used. See, Plaintiffs’ Exhibit 3 at p. 84, lines: 6-20. Water Toy Shop owns the stand adjacent to the San Juan Hotel, whereas Acosta Water Sports owns the stand adjacent to the Intercontinental Hotel. See, PSUMF ¶¶ 6, 36.

[5] Plaintiffs stated they were rushed into signing the documents. However, that do not contest the fact that both of them signed the documents. Moreover, the deposition testimony submitted in support of their contention does not prove that they were rushed to sign documents, but that they “were rushing” (Defendants’ Exh. 2 at p. 94). At any rate, in their opposition to the motion for summary judgment, plaintiffs seem to have abandoned the “rushing” characterization of the events, focusing instead on the alleged invalidity of the releases (Docket No. 61 at pp. 20-29).

[6] Plaintiffs’ explanation as to who gave them the documents does not controvert the language of the Rental Agreements that each plaintiff signed. Their undeveloped and unsupported contention as to the “content and admissibility of the documents” – without any analysis, case law or support whatsoever – does not contest the statement either.

[7] The “disputed” and generalized statement made by plaintiffs “as to the content and admissibility of the documents” does not contest the language of the Rental Agreement and Declaration of Fitness.

[8] Plaintiff testified during her deposition that “thirty to forty five maybe an hour” elapsed (Docket No. 52-3 at p. 100, lines 14-17).

[9] Plaintiffs “disputed” this statement as follows: “Disputed as to hearsay and admissibility of the documents. With the exception of the witness testimonies, Defendants have not yet produced a single piece of evidence that can confirm the identity, address or telephone number of the person who caused the collision, someone allegedly named Mark Castro.” See, Docket No. 61-1. But in addition to the general language disputing this statement, plaintiffs provided no discussion or authority in support of the argument. As such, the statement is deemed admitted. See, U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)(“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones”). Moreover, their “dispute” language does not comply with Local Rule 56 either. See also, Natal-Pérez v. Oriental Bank & Trust, —F.3d.—-, 2018 WL 618598, *1-*2 (D.P.R. January 30, 2018)(explaining what constitutes a proper denial or qualification under Local Rule 56).

[10] Plaintiffs’ denial does not comply with Local Rule 56. This time, they refer the court’s attention to certain portions of plaintiffs’ Exhibit 6. But nothing in those pages serve to properly controvert defendants’ SUMF ¶ 16. Therefore, the statement is deemed admitted.

[11] Plaintiffs did not admit, deny or qualify this statement as required by Local Rule 56. Moreover, their explanation does not contest this statement.

[12] The Territorial Clause gives Congress authority to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” As a territorial entity subject to congressional authority under the Territorial Clause, Puerto Rico nevertheless boasts “a relationship to the United States that has no parallel in … [United States’] history.” Puerto Rico v. Sánchez-Valle, —U.S.—-, 136 S.Ct. 1863, 1876 (2016). In a well-documented and comprehensive commentary, “Why Puerto Rico Does Not Need Further Experimentation With Its Future: A Reply To The Notion of ‘Territorial Federalism’, ” 131-3 Harvard Law Review Forum (January 2018), Juan R. Torruella examines the different phases of Puerto Rico’s territorial relationship with the United States, divided into what the author has labeled “the four ‘experiments’ in the colonial governance of Puerto Rico by the United States.” Id. at pp. 65-66.

[13] For a description of the main features of the Jones Act, see, Lebrón-Cáceres, 157 F.Supp.3d at 92. Juan R. Torruella, supra, focuses on the historical context of the statutory enactment. The first organic act, known as the Foraker Act, 31 Stat. 77-86, had been enacted in 1900, two years after the United States invaded Puerto Rico during the Hispanic American War. It established a civilian government in the territory, replacing the military government that had exerted control over Puerto Rico from October 1898. See, Lebrón-Cáceres, 157 F.Supp.3d at 91-92 & n.17 (sketching statute); Juan R. Torruella, supra (surveying historical setting).

[14] Lebrón-Cáceres, 157 F.Supp.2d at 92-93, 99-101, and Juan R. Torruella, supra, provide useful information about this statute.

[15] Gustavo A. Gelpí, “Maritime Law in Puerto Rico, An Anomaly in a Sea of Federal Uniformity, ” published as part of The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898-Present), Interamerican University of Puerto Rico, Metropolitan Campus (2017), p. 57, discusses Garrido and other judicial decisions in light of the interplay between Federal maritime law and Puerto Rico.

[16] See, Aponte v. Caribbean Petroleum, 141 F.Supp.3d 166, 171 (D.P.R. 2015)(applying Limitation Act in Puerto Rico).

[17] The term “adequate cause” is similar to “proximate cause.” See, Rodríguez v. Puerto Rico, 825 F.Supp.2d 341, 347 (D.P.R. 2011)(so noting)(citing Tokyo Marine and Fire Ins. Co., Ltd. v. Pérez &Cia. de Puerto Rico, Inc., 142 F.3d 1, 7 &n. 5 (1st Cir. 1998)(referring to Puerto Rico decisions explaining adequate cause)).

[18] Foreseeability allows courts to reconcile physical or natural cause and effect relationships with the causation necessary to establish civil liability. See, González, 1993 WL 525644 at *4 (so explaining). If that were not so, “damages following a breach … [would] be linked to each other in an endless chain of events.” Federal Deposit Insurance Corporation v. Arrillaga-Torrens, 212 F.Supp.3d 312, 353 (D.P.R. 2016).

[19] At the most, those alleged violations would warrant administrative sanctions under Section 1407 of Law 430. Yet there is no evidence that the DRN sanctioned, fined, suspended or revoked Water Toy’s permit for those reasons.

[20] See also, Marshall, 828 F.2d at 848 (comparing Negrón v. Orozco, 113 D.P.R. 921 (1983)(finding Puerto Rico Police liable for a shooting death in a police station because intervening act, though criminal and intentional, was reasonably foreseeable) with Rivera v. Cruz, 87 J.T.S. 51(1987)(no liability since defendant had no reason to anticipate the criminal act)).

[21] Poulis-Minott measured liability against the so-called Pennsylvania Rule, pursuant to which if a plaintiff in admiralty establishes both that the defendant breached a statutory duty and the breach is relevant to the causal question, the defendant assumes the burden of proving that its breach could not have caused plaintiff’s damages. See, Poulis-Minott, 388 F.3d at 363 (describing Pennsylvania Rule). The Rule aims to enforce strict compliance with maritime regulations pertaining to the safe operation of ships. Id. So to invoke it, the plaintiff must show a relationship between the regulatory violation and the injury. Id. Plaintiffs never invoked the Pennsylvania Rule, but assuming they had done so, there is no evidence linking a safety-related statutory violation with the accident.

[22] Public policy does prohibit a party to a maritime contract to shield itself contractually from liability for gross negligence. See, Royal Ins. Co. of America v. Southwest Marine, 194 F.3d 1009, 1016 (9th Cir. 1999)(discussing issue). The prohibition does not apply here, because as pointed out in the text, the complaint only raised gross negligence allegations as to Castro.

[23] Congress could block the enforceability of these waivers like it did in 46 U.S.C. § 183(c), which prohibits a vessel owner from limiting its liability for its own negligence when carrying passengers between ports of the United States or from a port of the United States to a foreign port. But that provision applies only to common carriers. See, Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162, *5-*6 (4th Cir. 1998)(unpublished)(so holding). No common carrier was involved in the case sub judice.

[24] Still and all, “adhesion does not imply nullity of contract” in Puerto Rico. Nieves v. Intercontinental Life Ins. Co. of Puerto Rico, 964 F.2d 60, 63 (1st Cir. 1992). If the wording of the contract is explicit and its language clear, its terms and conditions are binding on the parties. Id. As will be discussed, the waivers here satisfy this requirement.

[25] Those risks included (1) changing water flow, tides, currents, wave action, and ship’s wakes; (2) collision with any of the following: a) other participants, b) the watercraft, c) other watercraft, d) man made or natural objects, e) shuttle boat; (3) wind shear, inclement weather, lightning, variances and extremes of wind, weather and temperature; (4) my sense of balance, physical condition, ability to operate equipment, swim and/or follow directions; (5) collision, capsizing, sinking, or other hazard that may result in wetness, injury, exposure to the elements, hypothermia, impact of the body upon the water, injection of water into my body orifices, and/or drowning; (6) the presence of insects and marine life forms; (7) equipment failure or operator error; (8) heat or sun related injuries or illnesses, including sunburn, sun stroke or dehydration; (9) fatigue, chill and/or reaction time and increased risk of accident.

[26] Morgan had signed similar documents in order to rent jet skis before the accident. At the time of the accident, she had a Bachelor’s degree in Biology, and Kennedy had a High School diploma with one year of nursing school. SUMF at ¶ 2.

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Words and Phrases Defined in an Articles

The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.

This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.

Term or Phrase

State

Article that Defines the Term or Phrase

Adhesion Agreement Colorado Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
Admiralty Law Nevada Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.
Agency New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Amicus Curiae Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Ambiguity Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Apparent Authority New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Pennsylvania Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Assumption of Risk Assumption of the Risk    http://rec-law.us/wMtiET
Assumption of Risk — Checklist
California Assumption of the Risk to be a bar to a claim the defendant must now owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Hawaii The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Massachusetts Duty of care for a Massachusetts campground is to warn of dangerous conditions.
New York If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court.

Skier assumes the risk on a run he had never skied before because his prior experience.

Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Pennsylvania PA court upholds release in bicycle race.
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
South Carolina Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Express Assumption of risk California BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Delaware If you agree to the rules you have to follow the rules
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Implied Assumption of the risk Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Primary Assumption of Risk Delaware If you agree to the rules you have to follow the rules
Minnesota Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

BSA (Cub Scout) volunteer not liable for injuries to cub because cub assumed the risk of his injuries. BSA & Council not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Secondary
Assumption of Risk
Arkansas Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.
California Most references in case law to assumption of the risk are to this California decision
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Business Invitee Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Certiorari Colorado Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Common Carrier California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
Contracts
Meeting of the Minds North Carolina When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Consideration What is a Release?
Concurring Opinion Utah The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Contribution Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Declaratory Judgment New Hampshire What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire you have no coverage.
Derivative Claim Sign in sheet language at Michigan health club was not sufficient to create a release.
Duty of Care California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Washington Summer Camp, Zip line injury and confusing legal analysis in Washington

Good News ASI was dismissed from the lawsuit

Essential Public Services Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Expert Witness Connecticut Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.
Failure to Warn New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Foreseeability Colorado Be Afraid, be very afraid of pre-printed forms for your recreation business
Illinois When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
Ohio Liability of race organizer for State Park Employees?
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff.
Idaho Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Forum non conveniens Kansas If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Fraud Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality
Fraudulent Inducement New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Fraudulent Misrepresentation Georgia Lying in a release can get your release thrown out by the court.
California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Gross Negligence California Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Idaho Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.
Maryland Sky Diving Release defeats claim by Naval Academy studenthttp://rec-law.us/1tQhWNN
Massachusetts Colleges, Officials, and a Ski Area are all defendants in this case.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Michigan Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

Allowing climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate release.

Nebraska In Nebraska a release can defeat claims for gross negligence for health club injury
New Hampshire In this mountain biking case, fighting each claim pays off.
New Jersey New Jersey upholds release for injury in faulty bike at fitness club
New York New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.
Tennessee 75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense
Texas Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.
Utah Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality

Inherently Dangerous Missouri 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.
Inherent Risks California This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).
Interlocutory Appeal Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Utah Utah courts like giving money to injured kids
Invitee Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Joint Venture Missouri 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.
Judgment Notwithstanding the Verdict (JNOV or J.N.O.V.) Maryland Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier
Missouri 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.
Lex loci contractus Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Long Arm Statute Requirements New York To sue a Vermont ski area there must be more than a web presence to sue in New York
Material Breach of a Contract Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Motion to Dismiss Colorado Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligence Georgia Georgia court finds no requirement for employee to interview when higher trained first aid providers are present
Idaho Idaho Supreme Court holds is no relationship between signs posted on the side of the trampoline park in a duty owed to the injured plaintiff
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Indiana Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball.

An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

Louisiana Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Maryland Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Mississippi Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Negligence (Collateral) Missouri 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.
Negligence Per Se Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Florida Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Illinois (does not exist) When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligent Misrepresentation New York The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff
No Duty Rule Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Open and Obvious Michigan The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.
New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Rhode Island
Passive-Retailer Doctrine Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Premises Liability Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Prima facie New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Prior Material Breach Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Product Liability Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Tennessee Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Negligent Product Liability Illinois Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury
Public Policy California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
Oregon Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?

Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Punitive Damages New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Rescue Doctrine South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Recklessness Missouri 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.
New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Ohio BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Release Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality

Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.

New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Oklahoma Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.
New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Pennsylvania Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Release Fair Notice Requirement under Texas law Texas Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Remittitur Missouri 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.
res ipsa loquitur Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Respondeat superior Missouri US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Restatement (Second) of Torts Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Standard Colorado
California
Words: You cannot change a legal definition
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Rhode Island Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Standard of Review Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Sudden Emergency Doctrine New York Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Summary Judgment Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Superseding or Intervening Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Tort Louisiana Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR
Unconscionable Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
United States Constitution Fourteenth Amendment Buy something online and you may not have any recourse if it breaks or you are hurt
Willful, Wanton or Reckless Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Ohio Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Nebraska Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death.
Wyoming Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming
Wrongful Death Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.

Last Updated April 24, 2018


A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.

A Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.

Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484

State: Colorado, United States District Court for the District of Colorado

Plaintiff: Linda Schlumbrecht-Muniz, M.D.

Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT

Plaintiff Claims: negligence, negligence per se, and respondeat superior

Defendant Defenses: Colorado Skier Safety Act

Holding: for the Defendant

Year: 2015

The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.

The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.

The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.

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

The court first looked at the requirements necessary to properly plead a claim.

“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”

This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.

The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…

Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.

Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:

Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.

The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.

Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.

The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:

…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.

In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.

I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.

The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”

The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.

Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”

Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.

Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”

The final claim was based on respondeat superior.

Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)

Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.

So Now What?

This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.

What do you think? Leave a comment.

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Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.

Defendant took plaintiffs on a guided personal watercraft tour with an employee/guide who had not been trained as required by Florida’s law.

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

State: Florida: United States District Court for the Southern District of Florida

Plaintiff: Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva

Defendant: Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff

Third Party Defendant(s): Jeffrey Wilkerson, Third-Party Defendant

Plaintiff Claims: Negligence Per Se

Defendant Defenses: : (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

Holding: For the Plaintiff

Year: 2007

Summary

If there is a statute that applies to your business or activity, you must know and abide by the statute. Failure to do so can void all of your defenses and in some cases the claim may not be covered by your insurance policy.

Here the defendant rented personal watercraft to the plaintiffs without instructing the guests as required by Florida Statute. By not abiding by the statute, the defendant’s defenses were void and the defendant’s liability was decided by the court.

Facts

The plaintiff’s, husband, wife and daughter paid for a guided personal watercraft (PWC or formerly known as jet ski) tour. During the tour, another tour participant panicked and drove his PWC at a high rated of speed into the plaintiff’s.

The plaintiff’s sued the defendant PWC tour company. The PWC tour company sued the participant who drove the PWC into the plaintiff’s as third-party plaintiffs versus third party defendants.

The defendants relied on four defenses:

(1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness;

(2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness;

(3) Florida statutory law does not apply; and

(4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

The plaintiff argued that because the defendant did not hire or require it’s guides to meet educational requirements required by state law, the defendant was negligent per se.

Negligence per se is negligence that violates a law or regulation which was created for the purpose of protecting a group of people that were injured by the plaintiff.

The Florida statutes in question were:

Florida Statute § 327.39

§ 327.39. Personal watercraft regulated.

(b) 1. It is unlawful for the owner of any leased, hired, or rented personal watercraft, or any person having charge over or control of a leased, hired, or rented personal watercraft, to authorize or knowingly permit the watercraft to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.

The second statute was Florida Statute § 327.54

§ 327.54. Liveries; safety regulations; penalty.

(1) A livery may not knowingly lease, hire, or rent a vessel to any person:

(e) When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:

1. Operational characteristics of the vessel to be rented.

2. Safe vessel operation and vessel right-of-way.

3. The responsibility of the vessel operator for the safe and proper operation of the vessel.

4. Local characteristics of the waterway where the vessel will be operated.

Any person delivering the information specified in this paragraph must have successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.

The first statute required the person renting a PWC to instruct the renter on the use of the PWC. The second statute identified the instructions to be given and required the person giving the instructions to have successfully completed a boater safety course. The defendant’s employee in this case had not given the necessary instructions and had not completed a boater safety course.

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

Federal judiciary has a rule they apply to these situations called the Pennsylvania Rule. The Pennsylvania Rule states:

…when a ship at the time of an collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.

Basically, the Pennsylvania rule shifts the burden of proof from the plaintiff, who normally has the burden to proof the defendant was at fault, to the defendant, requiring the defendant to prove, it was not at fault.

The next hurdle is the state law’s relationship to admiralty law. Admiralty law is a Federal law, in fact, a series of international laws, to control transportation of goods and people across borders and international travel. States can only make laws concerning admiralty issues if there is not federal law on the subject already. If the federal law conflicts with the state law, the federal law applies.

Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident.

There is no federal law concerning the rental of PWCs. So, the two Florida statutes were available to the plaintiff. Additionally, the Florida statutes were created to protect a specific group of people, and the plaintiffs were part of the group to be protected.

These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.

Side note: the defendant co-owner admitted he was not familiar with Florida’s statutes that were at issue. The court’s response was the classic you learn in law school, and you should learn in kindergarten. “…ignorance of the law is not a defense.”

The defendant argued that instruction would have changed the accident or prevented the accident. The court did not buy that argument.

However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.

For the defendant not to be liable, the must be completely free of fault, and the violation of the Florida statute created fault on the part of the defendant; consequently, the defendant was not free of fault.

The defendant then argued the limitation of liability under admiralty law applied. The limitation of liability states the defendant is liable to the value of the vessel after the accident. Here the defendant argued the extent of their liability was $3,000 because that was what the PWC was worth.

For the defendant to use this defense, required a two-step test:

(1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.

Since the defendants could have easily investigated whether their employee had taken a boater safety course, and they did not, they could not take advantage of the limitation of liability because the defendant should have had knowledge of the unseaworthiness of the PWC.

The next defense argued was the release signed by the plaintiff. Here the release was void because it violated public policy. The statute created a safety requirement on the part of the defendant. The statute was enacted to keep the public safe. Therefore, failing to keep the public safe was a public policy issue.

[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.”

In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.

The defendant’s motion for summary judgement was denied. The plaintiff had filed a motion for summary judgment as to the liability of the defendant. That motion was granted. The sole remaining issue then was the amount of the liability, how much the defendant owed the plaintiff.

So Now What?

Releases are the best defense to lawsuits in most states. However, the most effective legal argument to void a release is to claim the defendant was Negligence Per Se. Here the court found that because the statutes were created for public policy reasons, the release violated public policy and thus was void.

Most state courts just void the release stating the release cannot prevent claims based on violation of a statute.

More importantly, any time a statute is created that applies to your business or activity, you must understand and follow the statute. Both statutes argued above had criminal penalties for violation of the statutes. Not only was the defendant liable in a lawsuit for violating the statutes, the defendants could be fined by the state.

Don’t get into business without knowing the law.

More articles on Negligence Per Se

Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability

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Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva, a minor, Plaintiffs, vs. Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff, vs. Jeffrey Wilkerson, Third-Party Defendant.

Case No. 06-10116-CIV-MOORE/GARBER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2007 U.S. Dist. LEXIS 46490

June 27, 2007, Decided

June 27, 2007, Entered

SUBSEQUENT HISTORY: Judgment entered by, Motion denied by Tassinari v. Key W. Water Tours, L.C., 2007 U.S. Dist. LEXIS 80872 (S.D. Fla., Oct. 31, 2007)

PRIOR HISTORY: Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 43858 (S.D. Fla., June 18, 2007)

CORE TERMS: watercraft, maritime law’s, collision, boater, fault, summary judgment, boating, unseaworthiness, admiralty, maritime, handling, genuine, rental, vessel, safe, statutory rule, tour guide, public policy, per se, exoneration, privity, renters, ship, panicked, State Boating Law Administrators Betz Depo, liability arising, negligence per se, negligence cases, statutes enacted, standard of care

COUNSEL: [*1] For Ronald Tassinari, an individual, Sheila Silva, an individual and next best friend of Ashley Silva, Ashley Silva, a minor, Plaintiffs: Domingo Carlos Rodriguez, LEAD ATTORNEY, Rodriguez Aronson & Essington, Miami, FL; Patricia Leigh McMillan Minoux, LEAD ATTORNEY, Rodriguez, Aronson & Essington, P.A., Coral Gables, FL.

For Key West Water Tours, L.C., a Florida Corporation, Defendant: Bruce Michael Trybus, Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.

For Key West Water Tours, L.C., a Florida Corporation, ThirdParty Plaintiff: Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.

JUDGES: K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE.

OPINION BY: K. MICHAEL MOORE

OPINION

ORDER GRANTING SUMMARY JUDGMENT AS TO DEFENDANT’S LIABILITY

THIS CAUSE came before the Court upon Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) and Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46).

UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. Background

Plaintiffs are residents [*2] of Massachusetts. Defendant Key West Water Tours, L.C. (“Defendant” or “Water Tours”) is a Florida corporation doing business in Monroe County, Florida, as a personal watercraft (jet skis and/or waverunners) rental agency and provider of guided personal watercraft tours to the public. On or about July 9, 2004, Defendant rented personal watercraft to Plaintiffs at or near Key West, Monroe County, Florida. Defendant then took a group of personal watercraft renters, including Plaintiffs and Third-Party Defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters.

During the tour, the watercraft operated by Third-Party Defendant Jeffrey Wilkerson collided with the watercraft operated by Plaintiffs Ronald Tassinari and Ashley Silva, injuring Plaintiffs Ronald Tassinari and Ashley Silva.

Defendant argues that it is entitled to summary judgment on the following issues: (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence [*3] or unseaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement. Plaintiffs argue that they are entitled to summary judgment because Defendant violated certain Florida State statutes making Defendant negligent per se. Plaintiffs further argue that if Defendant is negligent per se, then Defendant is not entitled to have its liability limited to the value of the watercraft.

II. Standard of Review

The applicable standard for reviewing a summary judgment motion is unambiguously stated in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir. 1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). [*4] An issue of fact is “material” if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). It is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.

In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the nonmoving party:

may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed. R. Civ. P. 56(e). “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

III. Discussion

A. The Pennsylvania Rule and Florida Statutory Law

Plaintiffs argue that Defendant is negligent per se because Defendant violated [*5] Florida State statutes enacted to protect the safety of personal watercraft renters. Pl. Mot. at 9-14. Federal maritime law’s unique version of negligence per se is embodied in what is called the “Pennsylvania Rule.” In re Superior Constr. Co., 445 F.3d 1334, 1340 (11th Cir. 2006). “Under the Pennsylvania Rule, when a ship at the time of an allision is in actual violation of a statutory rule intended to prevent allisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” Id. (citing The Pennsylvania, 86 U.S. 125, 136, 22 L. Ed. 148 (1873)).

Defendant argues that State law does not apply in a case brought under federal maritime law; therefore, the Pennsylvania rule does not apply to violations of Florida statutes. Def. Resp. at 6-8. However, the Seventh Circuit recognized that “[s]everal courts have applied the Pennsylvania rule to the violation of state statutes or local ordinances.” Complaint of Wasson, 495 F.2d 571, 583 (7th Cir. 1974) [*6] (citations omitted); see also Protectus Alpha Nav. Co., Ltd. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1382-83 (9th Cir. 1985) (violation of Washington State statute would support negligence per se).

Further, State law has been applied in admiralty cases where there is no direct conflict with established federal maritime law. Wilburn Boat Co. v. Fireman’s Fund Insur. Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337 (1955); 1 T. Schoenbaum, Admiralty and Maritime Law § 4-2 (4th ed.); see also Smith v. Haggerty, 169 F. Supp. 2d 376 (E.D. Pa. 2001) (applying State law regulations to negligence claims arising from a boating accident) (vacated on other grounds). The Supreme Court has recognized that “[i]n the field of maritime contracts, as in that of maritime torts, the National Government has left much regulatory power in the States.” Wilburn Boat, 348 U.S. at 313 (the Supreme Court ultimately declined to adopt a federal admiralty rule governing insurance policy provisions and decided to leave that area up to State regulation).

In the present case, Plaintiffs cite to several Florida statutes that were enacted, in part, in response to an act of Congress intended to “encourage greater State participation and [*7] uniformity in boating safety efforts, and particularly to permit the States to assume the greater share of boating safety education, assistance, and enforcement activities.” 46 U.S.C. § 13102 (2007). The Court is not persuaded that statutes enacted in response to Congress’s stated purpose of permitting the states to assume more responsibility in regulation of recreational boat safety are inapplicable merely because they were enacted by a state government.

Further, Defendant has not pointed to any established federal maritime law directly conflicting with and preempting these State statutes. In cases where a State statute conflicts with established federal maritime law or would materially frustrate a tenant of admiralty law, the State statutes should generally not be applied. Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir. 1986); Branch v. Schumann, 445 F.2d 175 (5th Cir. 1971); Miami Valley Broadcasting Corp. v. Lang, 429 So. 2d 1333 (Fla. 4th DCA 1983). Defendant overstates the holdings in Branch and Lang, arguing that State law can never be used in maritime negligence cases. Branch and Lang merely stand for the principle that State law cannot change established [*8] substantive maritime law. In Branch and Lang, the State law would have imposed a stricter burden than that established by federal maritime law; because it conflicted with federal maritime law and would have effectively changed the accepted maritime standard of care, the State law could not be applied. The Florida statutes at issue were not designed to circumvent federal maritime law or substitute a stricter standard of care in negligence cases; rather, they were designed to help regulate recreational boating safety. The Pennsylvania rule is an established principle of federal maritime law, which may be applied to violations of Florida State statutes; this application does not, in and of itself, conflict with federal maritime law.

Florida Statute § 327.39 makes it unlawful for the owner of a personal watercraft to “authorize or knowingly permit the [watercraft] to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.” Florida Statute § 327.54 requires that the instruction in the safe handling of personal watercraft with a motor of 10 horsepower or greater be delivered by a person [*9] who has “successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.” These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.

In this case, Defendant owned or had control over the personal watercraft involved in the collision. At the time of the collision, Defendant employed Chris Betz (“Betz”) as a personal watercraft tour guide and allowed Betz to provide the safety instruction to persons operating the personal watercraft on the tour, including Jeffrey Wilkerson. Def. Mot. at 4-6. Betz admitted in his deposition that he had never completed a boater’s safety course approved by the National Association of State Boating Law Administrators. Betz Depo. at 12. Co-owner Gerald Grogan admitted that Key West Water Tours does not require its tour guides to have passed a safe boating course. Grogan Depo. at 19. Therefore, Defendant violated Florida [*10] statutes designed to protect boater safety and prevent collisions, by entrusting personal watercraft to persons who were not instructed in the safe handling of the personal watercraft as the law requires. Co-owner Jeremy Ray indicated that he was not very familiar with the Florida statutes at issue. Ray Depo. at 9, 20-21. However, ignorance of the law is not a defense.

Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident. Defendant argues that “[t]he sole cause of the subject accident was the negligent operation of a personal watercraft by Third-Party Defendant Jeffrey Wilkerson.” Def. Mot. at 11. Defendant asserts that “[t]here is not a single additional instruction that would have prevented the subject accident.” Id. Betz gave safety instructions. Betz Depo. at 32-33. According to Betz, Jeffrey Wilkerson “was coming in way too fast . . . just like an old lady in a car, panicked, eyes wide open, completely wide open, staring straight at the group and a panic in his face [*11] because he’s going too fast, and never let off the throttle until he hit.” Def. Mot. at 7. Defendant further asserts that Defendant had never had an accident previously and that Jeffrey Wilkerson had operated the watercraft without problem for about two hours before the accident. It is undisputed that Jeffrey Wilkerson panicked and that the watercraft was at full throttle until impact. However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.

C. Exoneration From Liability

“An owner will be exonerated from liability when he, his vessel, and crew are found to be completely free of fault.” In re Complaint of Caribbean Sea Transport, 748 F.2d 622, 626 (11th Cir. 1984) (citing Tittle v. Aldacosta, 544 F.2d 752, 755 (5th Cir. 1977)). As discussed above, Defendant cannot be said to be completely free of fault; therefore, Defendant is not entitled to exoneration.

D. Limitation of Liability Under Limitation [*12] Act

The Eleventh Circuit has held that the determination of whether the owner of a vessel is entitled to limitation of liability requires a two-step analysis: (1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.” Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990) (citing Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976)). “Privity and knowledge are deemed to exist where the owner had the means of knowledge or, as otherwise stated, where knowledge would have been obtained from reasonable inspection.” China Union Lines, Ltd. v. A.O. Andersen & Co., 364 F.2d 769, 792-93 (5th Cir. 1966). Under the Pennsylvania rule, as discussed above, Defendant’s violation of Florida statutes regarding proper instruction in safely operating the personal watercraft is presumed to have caused the collision. The owners of Key West Water Tours, L.C. knew, should have known, and could have discovered upon minimal investigation whether its tour guides, who they hired, had completed [*13] approved boater safety courses and whether the requirements of Florida law regarding proper safety and instruction were being met. Therefore, Defendant is not entitled to limitation of liability to the value of the watercraft.

E. Waiver and Hold Harmless Provisions of the Rental Agreement

“[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.” Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 631 (S.D.W. Va 2004) (citations omitted); Restatement (Second) of Contracts § 195 comment a (1981) (“If, for example, a statute imposes a standard of conduct, a court may decide on the basis of an analysis of the statute, that a term exempting a party from liability for failure to conform to that standard is unenforceable.”). In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on [*14] owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.

IV. Conclusion

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) is DENIED. It is further

ORDERED AND ADJUDGED that Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46) is GRANTED. The pretrial conference to discuss remaining issues will be held as scheduled, on June 28, 2007.

DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of June, 2007.

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE


This decision is either normal, or ground breaking. The release info is nothing new. However, the court found the language on the back of the lift ticket created a release which barred the plaintiff’s claims.

11th Circuit Court of Appeals upholds lower decision dismissing claims of a plaintiff who broke her femur unloading a lift during a ski lesson.

Lower Court decision was based on Colorado Premises Liability Act. This decision was based on the release the plaintiff signed to take the ski lesson.

For an analysis of the lower court decision see: Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397

State: Colorado: United States Court of Appeals for the Tenth Circuit

Plaintiff: Teresa Brigance

Defendant: Vail Summit Resorts, Inc. (Keystone Ski Area)

Plaintiff Claims: (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115

Defendant Defenses: Release and the lift ticket

Holding: For the Defendant Ski Area, Vail

Year: 2018

This case looks at the law concerning releases in Colorado. Writing a release requires three skills. The first is an understanding of the law that will be applied to the release in question. The second is an understanding of the activity, and the risks associated with the activity the release must cover. The third is what do judges want to see in the release and what they don’t want to see.

The first and third items are what I specialize in. The second item is what we have to specialize in. Writing a release is not handing a contract job to an attorney. It is understanding how you want to run your business, the guests you want to serve and the types of problems you want to prevent from turning into litigation.

If you need a release for your business, activity or program consider working with me to design one. You also have the option of purchasing a pre-written release based upon the needs of your business, type of activity and the state where you are located.

To help you understand release law, here is an article about how a release was written correctly and then used to stop a claim.

Summary

This decision does not stand out among decisions concerning release law in Colorado. However, it is an extreme change from Colorado law and the law of most other states when it states the backside of a lift ticket is a release. The lower court decision was analyzed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

The plaintiff was taking a ski lesson when she fell getting off the lift. She sued for the normal negligent issues. The court throughout her claims based upon the release she signed to take the ski lesson.

Facts

The plaintiff signed up to take a ski lesson with Keystone Resorts, a ski area owned by the defendant Vail Summit Resorts, Inc. and ultimately by Vail Resorts Management Company. (There may be some more corporations or LLC’s in the middle.) When she signed up for the lesson, she signed a release which is a common practice at ski areas.

When she was unloading a lift, the edge of the chair caught the top of her ski boot, and she fell eventually breaking her femur.

She sued. Her case was thrown out by the trial court. See Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662 analyzed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

On a side note. One of her claims was the lift did not stop immediately. One defense I never see to this claim; lifts don’t stop immediately. If the lift stopped immediately, everyone riding the lift would be thrown off. Lift’s decelerate at a speed that allows the lift to stop as quickly as possible without ejecting everyone riding on the lift. If nothing else it is a save everyone else on the lift and sacrifice the person who can’t unload.

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

The 10th Circuit Court of Appeals is a federal court. The plaintiff filed this case in federal court because she was from Florida. Vail and the locations of the accident are in Colorado. That allowed her to have federal jurisdiction in the case because the plaintiff and the defendant were from two different states.

When a federal court has a case like this, it applies the law of the state that has jurisdiction as if the case were not in federal court. In this case, the decision looks at Colorado law as it applies to ski areas and releases. There is no Federal law concerning ski areas, other than general laws on leasing Forest Service land for a ski area.

The court started its analysis by reviewing the release and Colorado law on releases.

Colorado has a tag it applies to releases; like a few other states, that releases are disfavored under Colorado law. However, disfavored a release may be; that statement seems to be something to provide the plaintiff with an idea of fairness rather than the reality that if you write your release correctly, it will be upheld in Colorado.

For a decision that was lost because the defendant did not write the release correctly see Colorado Appellate Court rules that fine print and confusing language found on most health clubs (and some climbing wall) releases is void because of the Colorado Premises Liability Act.

There are four tests a release must pass to be valid in Colorado.

(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.

The court found plenty of Colorado law stating that a recreation service or activity does not owe a duty to the public and is not a service that should be questioned, which covers the first two requirements. The release was well-written, and the plaintiff did not argue that the release was not entered into fairly. Consequently, the court was able to state the release was valid the plaintiff’s claims were barred by the release.

One argument of the plaintiff’s the court did spend some time on was the Ski Area Safety Statute and the Passenger Tramway Safety Act created a public duty. Thus, the nature of the relationship between the ski area and a guest was one not of recreation but of a public duty, therefore, the release was not valid. This argument was an attempt to void the release based on the first two requirements set out above.

However, the court found that the creation of both statutes was done so that releases were not voided for skiing in Colorado. Looking at Colorado law the court found:

Our conclusion that the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims.

The court found all four requirements for a release to be valid in Colorado were met.

What was exciting about this case wad the Court found the lift ticket was a release.

What is of note about this case is the Appellate Court like the lower court, looked at the language on the back side of the lift ticket as a release. The court starts by calling the language a “Lift Ticket Waiver.”

The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.”

Emphasize added

No other court in Colorado has ever looked at the language on the back of the lift ticket as being a release. That language is there because it is required by statute. Colorado Ski Safety Act C.R.S. §§ 33-44-107. Duties of ski area operators – signs and notices required for skiers’ information. (8) states:

(8) (a) Each ski area operator shall post and maintain signs which contain the warning notice specified in paragraph (c) of this subsection (8). Such signs shall be placed in a clearly visible location at the ski area where the lift tickets and ski school lessons are sold and in such a position to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift. Each sign shall be no smaller than three feet by three feet. Each sign shall be white with black and red letters as specified in this paragraph (a). The words “WARNING” shall appear on the sign in red letters. The warning notice specified in paragraph (c) of this subsection (8) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height.

(b) Every ski lift ticket sold or made available for sale to skiers by any ski area operator shall contain in clearly readable print the warning notice specified in paragraph (c) of this subsection (8).

(c) The signs described in paragraph (a) of this subsection (8) and the lift tickets described in paragraph (b) of this subsection (8) shall contain the following warning notice:

WARNING

Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.

    Emphasize added

The court specifically stated the language highlighted above in yellow contains “waiver of claims.” Based on the statute and the language, this is solely a list of the risks a skier assumes by statute when skiing inbounds in Colorado. However, now this court has found more in the text.

For more on lift tickets baring claims see Lift tickets are not contracts and rarely work as a release in most states. The reason most courts find that the language on the back of a lift ticket is not a release is there is no meeting of the minds, no one points out to the purchaser of a lift ticket there is a contract they are agreeing to.

In this case that would be impossible because the case states the husband purchased the lift ticket so the plaintiff could not have agreed to the contract.

In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Key-stone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:

Emphasize added

As stated above, the court notes that the husband and not the plaintiff purchased the lift tickets. No contract could be created in this case, yet somehow; the court found the lift ticket was a contract and as such was a release of liability. There was no meeting of the minds and there was no consideration passing between the plaintiff and the ski area.

However, this has monstrous meaning to all other ski areas in Colorado. If the language required by statute to be placed on the back of lift tickets is also a release of liability, then a new defense is available to all injuries of any skier, boarder, tuber or other person on the ski area who purchases a lift ticket.

More importantly you could require everyone coming on to the ski area to purchase a lift ticket no matter the reason. The cost could only be one dollar, but the savings to the ski area would be immense. If you are skiing you lift ticket is $200. If you are just going to dinner or watching your kids ski the lift ticket is $1.00 and gives you a $1.00 discount on your first drink.

Everyone who has a lift ticket at a ski area has effectively signed a release now.

However, remember, this is a federal court interpreting state law, the law of Colorado. Until the Colorado Courts weight in on the subject and the Colorado Supreme Court decides the issue, its value may be suspect. It is reliable in Federal Court as this condition is precedent setting, however, I would lean hard on the decision, not stand on it.

The court concluded, and in doing so provided a better idea about how Colorado looks are releases, that:

In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.

So Now What?

Overall, the case has nothing new on release law and is another affirmation that releases in Colorado, if written correctly, will stop claims for negligence.

However, if the Colorado courts follow the reasoning contained in this decision about the validity of the language on the back of a lift ticket as a bar to claims, then this is the first step in making almost impossible to sue a ski area in Colorado for any reason.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397

Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397

Teresa Brigance, Plaintiff – Appellant, v. Vail Summit Resorts, Inc., Defendant – Appellee.

No. 17-1035

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

2018 U.S. App. LEXIS 397

January 8, 2018, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:15-CV-01394-WJM-NYW).

Brigance v. Vail Summit Resorts, Inc., 2017 U.S. Dist. LEXIS 5447 (D. Colo., Jan. 13, 2017)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-In an action brought by an injured skier, an examination of each of the Jones v. Dressel factors for determining the enforceability of an exculpatory agreement led to the conclusion that none of them precluded enforcement of a Ski School Waiver or Lift Ticket Waiver. The factors included the existence of a duty to the public, the nature of the service performed, whether the contract was fairly entered into, and whether the intention of the parties was expressed in clear and unambiguous language; [2]-The district court properly determined that the provisions of the Colorado Ski Safety Act of 1979 and the Passenger Tramway Safety Act had no effect on the enforceability of defendant ski resort’s waivers. Colorado law had long permitted parties to contract away negligence claims in the recreational context; [3]-The skier’s claims were barred by the waivers.

OUTCOME: The court affirmed the district court’s grant of summary judgment in favor of the ski resort and the partial grant of the resort’s motion to dismiss.

CORE TERMS: ski, exculpatory, skiing, lift ticket, recreational, lesson, lift, ski area, practical necessity, recreational activities, public policies, bargaining, skier, inherent dangers, unenforceable, service provided, essential service, inherent risks, discovery, holder, signer, summary judgment, riding, equine, common law, ski lifts, negligence per se, quotation marks omitted, practically, harmless

COUNSEL: Trenton J. Ongert (Joseph D. Bloch with him on the briefs), Bloch & Chapleau, LLC, Denver, Colorado, for Plaintiff – Appellant.

Michael J. Hofmann, Bryan Cave LLP, Denver, Colorado, for Defendant – Appellee.

JUDGES: Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.

OPINION BY: McHUGH

OPINION

McHUGH, Circuit Judge.

During a ski lesson at Keystone Mountain Resort (“Keystone”), Doctor Teresa Brigance’s ski boot became wedged between the ground and the chairlift. She was unable to unload but the chairlift kept moving, which caused her femur to fracture. Dr. Brigance filed suit against Vail Summit Resorts, Inc. (“VSRI”), raising claims of (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115. The district court dismissed Dr. Brigance’s negligence and negligence per se claims at the motion to dismiss stage. After discovery, the district court granted VSRI’s motion for summary judgment on the remaining claims, concluding the waiver Dr. Brigance signed before participating [*2] in her ski lesson, as well as the waiver contained on the back of her lift ticket, are enforceable and bar her claims against VSRI. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual Background

Keystone is a ski resort located in Colorado that is operated by VSRI. In March 2015, Dr. Brigance visited Keystone with her family and participated in a ski lesson. At the time, ski lesson participants, including Dr. Brigance, were required to sign a liability waiver (the “Ski School Waiver”) before beginning their lessons. The Ski School Waiver signed1 by Dr. Brigance contained, among other things, the following provisions:

RESORT ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNITY AGREEMENT

THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.

. . .

2. I understand the dangers and risks of the Activity and that the Participant ASSUMES ALL INHERENT DANGERS AND RISKS of the Activity, including those of a “skier” (as may be defined by statute or other applicable law).

3. I expressly acknowledge and assume all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers [*3] and risks of the Activity, including but not limited to: Falling; free skiing; following the direction of an instructor or guide; . . . equipment malfunction, failure or damage; improper use or maintenance of equipment; . . . the negligence of Participant, Ski Area employees, an instructor . . . or others; . . . lift loading, unloading, and riding; . . . . I UNDERSTAND THAT THE DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT COMPLETE AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.

4. Participant assumes the responsibility . . . for reading, understanding and complying with all signage, including instructions on the use of lifts. Participant must have the physical dexterity and knowledge to safely load, ride and unload the lifts. . . .

. . .

6. Additionally, in consideration for allowing the Participant to participate in the Activity, I AGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION [*4] IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON [VSRI’s] ALLEGED OR ACTUAL NEGLIGENCE . . . .

Aplt. App’x at 117 (emphasis in original).

1 Although VSRI did not produce an original or copy of the Ski School Waiver signed by Dr. Brigance, it provided evidence that all adults participating in ski lessons at Keystone are required to sign a waiver and that the Ski School Waiver was the only waiver form used by VSRI for adult ski lessons during the 2014-15 ski season. Before it was clear that VSRI could not locate its copy of the signed waiver, Dr. Brigance indicated in discovery responses and deposition testimony that she signed a waiver before beginning ski lessons. See Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4 (D. Colo. Jan. 13, 2017). Based on this evidence and Dr. Brigance’s failure to argue “that a genuine question remains for trial as to whether she did in fact sign the Ski School Waiver in the form produced or whether she agreed to its terms,” 2017 U.S. Dist. LEXIS 5447, [WL] at *4, the district court treated her assent to the Ski School Waiver as conceded and concluded that “there is no genuine dispute as to whether [Dr. Brigance] consented to the terms of the Ski School Waiver,” id.

On appeal, Dr. Brigance offers no argument and points to no evidence suggesting that the district court’s conclusion was erroneous in light of the evidence and arguments before it. Instead, she merely denies having signed the Ski School Waiver and reiterates that VSRI has yet to produce a signed copy of the waiver. But in response to questioning at oral argument, counsel for Dr. Brigance conceded that this court could proceed with the understanding that Dr. Brigance signed the Ski School Waiver. Oral Argument at 0:41-1:23, Brigance v. Vail Summit Resorts, Inc., No. 17-1035 (10th Cir. Nov. 13, 2017). Three days later, counsel for Dr. Brigance filed a notice with the court effectively revoking that concession.

Dr. Brigance’s assertion that she did not execute the Ski School Waiver is forfeited because she failed to adequately raise it as an issue below. Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 884 (10th Cir. 2016); see also Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4 (“[N]otwithstanding the absence of a signed copy of the [Ski School Waiver], [Dr. Brigance] does not argue that this issue presents a genuine dispute requiring trial.”). But even if we were to entertain the argument, it would fail to defeat summary judgment. Despite her obfuscation, VSRI’s inability to produce the signed Ski School Waiver and Dr. Brigance’s assertions that she did not sign the waiver–which contradict her discovery responses and deposition testimony–are insufficient to establish that the district court erred in concluding that no genuine dispute exists as to whether Dr. Brigance agreed to the terms of the waiver. [HN1] “Although the burden of showing the absence of a genuine issue of material fact” rests with the movant at summary judgment, “the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts.” Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1084 (10th Cir. 2006) (internal quotation marks omitted). Indeed, the

party asserting that a fact . . . is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials cited do not establish the absence . . . of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1)(A)–(B). Dr. Brigance made no such showing below, nor does she attempt to do so on appeal.

In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Keystone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:

HOLDER AGREES AND UNDERSTANDS THAT SKIING . . . AND USING A SKI AREA, INCLUDING LIFTS, CAN BE HAZARDOUS.

WARNING

Under state law, the Holder of this pass assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from the [*5] ski area operator for any injury resulting from any of the inherent dangers and risks of skiing. Other risks include cliffs, extreme terrain, jumps, and freestyle terrain. Holder is responsible for having the physical dexterity to safely load, ride and unload the lifts and must control speed and course at all times. . . . Holder agrees to ASSUME ALL RISKS, inherent or otherwise. Holder agrees to hold the ski area harmless for claims to person or property. . . .

. . .

NO REFUNDS. NOT TRANSFERABLE. NO RESALE.

Id. at 121 (emphasis in original).

After receiving some instruction during her ski lesson on how to load and unload from a chairlift, Dr. Brigance boarded the Discovery Lift. As Dr. Brigance attempted to unload from the lift, her left ski boot became wedged between the ground and the lift. Although she was able to stand up, she could not disengage the lift because her boot remained squeezed between the ground and the lift. Eventually, the motion of the lift pushed Dr. Brigance forward, fracturing her femur.

B. Procedural Background

Dr. Brigance filed suit against VSRI in the United States District Court for the District of Colorado as a result of the injuries she sustained while attempting to unload [*6] from the Discovery Lift.2
In her amended complaint Dr. Brigance alleged that the short distance between the ground and the Discovery Lift at the unloading point–coupled with the inadequate instruction provided by her ski instructor, the chairlift operator’s failure to stop the lift, and VSRI’s deficient hiring, training, and supervision of employees–caused her injuries. She consequently asserted the following six claims against VSRI: (1) negligence; (2) negligence per se; (3) negligent supervision and training; (4) negligence (respondeat superior); (5) negligent hiring; and (6) liability under the PLA.

2 The district court properly invoked diversity jurisdiction because Dr. Brigance is a citizen of Florida and VSRI is a Colorado corporation with its principal place of business in Colorado, and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1332(a), (c)(1)(B)–(C).

VSRI moved to dismiss all claims raised by Dr. Brigance with the exception of her respondeat superior and PLA claims. The district court granted in part and denied in part VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance I“), No. 15-cv-1394-WJM-NYM, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *1-5 (D. Colo. Mar. 11, 2016). It dismissed Dr. Brigance’s negligence claim as preempted by the PLA. 2016 U.S. Dist. LEXIS 31662, [WL] at *3-4. It also dismissed her negligence per se claim, concluding that she “fail[ed] to identify any requirement” of the Colorado Ski Safety Act of 1979 (the “SSA”), Colo. Rev. Stat. §§ 33-44-101 to -114, that VSRI had allegedly violated. Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2. In dismissing this claim, the district court also held that the [*7] provisions of the Passenger Tramway Safety Act (the “PTSA”), Colo. Rev. Stat. §§ 25-5-701 to -721, relied upon by Dr. Brigance “do[ ] not provide a statutory standard of care which is adequate to support [a] claim for negligence per se.” Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2 (emphasis omitted). But the district court refused to dismiss Dr. Brigance’s claims regarding negligent supervision and training and negligent hiring. 2016 U.S. Dist. LEXIS 31662, [WL] at *4-5.

Upon completion of discovery, VSRI moved for summary judgment on the basis that the Ski School Waiver and Lift Ticket Waiver completely bar Dr. Brigance’s remaining claims. In the alternative, VSRI argued that summary judgment was appropriate because (1) Dr. Brigance failed to satisfy the elements of her PLA claim and (2) her common-law negligence claims are preempted by the PLA and otherwise lack evidentiary support. Dr. Brigance opposed the motion, contending in part that the waivers are unenforceable under the SSA and the four-factor test established by the Colorado Supreme Court in Jones v. Dressel, 623 P.2d 370 (Colo. 1981). Dr. Brigance also asserted that her common-law negligence claims are not preempted by the PLA and that she presented sufficient evidence to allow her claims to be heard by a jury.

The district court granted VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *10 (D. Colo. Jan. 13, 2017) [*8] . It determined that the Ski School Waiver and Lift Ticket Waiver are enforceable under the factors established by the Colorado Supreme Court in Jones and that the SSA and PTSA do not otherwise invalidate the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *5-9. It then determined that all of Dr. Brigance’s remaining claims fall within the broad scope of the waivers and are therefore barred. 2017 U.S. Dist. LEXIS 5447, [WL] at *10. This appeal followed.

II. DISCUSSION

Dr. Brigance challenges the district court’s enforcement of both the Ski School Waiver and Lift Ticket Waiver, as well as the dismissal of her negligence and negligence per se claims. [HN2] “[B]ecause the district court’s jurisdiction was based on diversity of citizenship, [Colorado] substantive law governs” our analysis of the underlying claims and enforceability of the waivers. Sylvia v. Wisler, 875 F.3d 1307, 2017 WL 5622916, at *3 (10th Cir. 2017) (internal quotation marks omitted). We “must therefore ascertain and apply [Colorado] law with the objective that the result obtained in the federal court should be the result that would be reached in [a Colorado] court.” Id. (internal quotation marks omitted). In doing so, “we must defer to the most recent decisions of the state’s highest court,” although “stare [*9] decisis requires that we be bound by our own interpretations of state law unless an intervening decision of the state’s highest court has resolved the issue.” Id. (internal quotation marks omitted).

Although the substantive law of Colorado governs our analysis of the waivers and underlying claims, [HN3] federal law controls the appropriateness of a district court’s grant of summary judgment and dismissal of claims under Federal Rule of Civil Procedure 12(b)(6). See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). We therefore review the district court’s grant of summary judgment and dismissal of claims pursuant to Rule 12(b)(6) de novo, applying the same standards as the district court. Id.; see also Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *4, 16. “However, we may affirm [the] district court’s decision[s] on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” Stickley, 505 F.3d at 1076 (internal quotation marks omitted).

“Summary judgment should be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *16 (internal quotation marks omitted). Because it is undisputed that all of Dr. Brigance’s claims–including those dismissed pursuant [*10] to Rule 12(b)(6)–fall within the broad scope of either waiver if they are deemed enforceable under Colorado law, the first, and ultimately only, question we must address is whether the Ski School Waiver and Lift Ticket Waiver are enforceable.

[HN4] Under Colorado law, “exculpatory agreements have long been disfavored,” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and it is well-established that such agreements cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). See also Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016) (“Under Colorado common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct.”). “But claims of negligence are a different matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza, 809 F.3d at 1152; accord Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Neither does it always preclude exculpatory agreements as to claims of negligence per se. Espinoza, 809 F.3d at 1154-55.

Accordingly, [HN5] the Colorado Supreme Court has instructed courts to consider the following four factors when determining the enforceability of an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the [*11] contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” J/ones, 623 P.2d at 376. It appears that if an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable. Although consideration of these factors is generally sufficient to determine the enforceability of exculpatory agreements, the Colorado Supreme Court has clarified that “other public policy considerations” not necessarily encompassed in the Jones factors may invalidate exculpatory agreements. See Boles, 223 P.3d at 726 (“[M]ore recently, we have identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.”); see, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232-37 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107.

The district court examined each of the Jones factors and concluded that none of them preclude enforcement of the Ski School Waiver or Lift Ticket Waiver. Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *5-8. It also determined that the provisions of the SSA and PTSA “have no effect on the enforceability” of the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *9. We agree.

A. The Jones Factors

1. Existence of a Duty to the Public

[HN6] The first Jones factor requires us to examine whether there is an “existence of a duty to the public,” Jones, 623 P.2d at 376, or, described another way, “whether [*12] the service provided involves a duty to the public,” Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1109 (10th Cir. 2002). The Colorado Supreme Court has not specified the precise circumstances under which an exculpatory agreement will be barred under this factor, but it has explained that unenforceable exculpatory agreements

generally involve businesses suitable for public regulation; that are engaged in performing a public service of great importance, or even of practical necessity; that offer a service that is generally available to any members of the public who seek it; and that possess a decisive advantage of bargaining strength, enabling them to confront the public with a standardized adhesion contract of exculpation.

Chadwick, 100 P.3d at 467. The Colorado Supreme Court has expressly “distinguished businesses engaged in recreational activities” from the foregoing class of businesses because recreational activities “are not practically necessary” and therefore “the provider[s of such activities] owe[ ] no special duty to the public.” Id.; see also Espinoza, 809 F.3d at 1153 (“Though some businesses perform essential public services and owe special duties to the public, the [Colorado Supreme] [C]ourt has held that ‘businesses engaged in recreational activities’ generally do not.” (quoting Chadwick, 100 P.3d at 467)).

And, indeed, [*13] Colorado courts examining exculpatory agreements involving recreational activities under Colorado law have almost uniformly concluded that the first Jones factor does not invalidate or render unenforceable the relevant agreement. See, e.g., Chadwick, 100 P.3d at 467-69; Jones, 623 P.2d at 376-78; Stone v. Life Time Fitness, Inc., No. 15CA0598, 2016 COA 189M, 2016 WL 7473806, at *3 (Colo. App. Dec. 29, 2016) (unpublished) (“The supreme court has specified that no public duty is implicated if a business provides recreational services.”), cert. denied, No. 17SC82, 2017 Colo. LEXIS 572, 2017 WL 2772252 (Colo. Jun. 26, 2017); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 949 (Colo. App. 2011) (“Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty.”); see also Espinoza, 809 F.3d at 1153-56; Mincin, 308 F.3d at 1110-11; Patterson v. Powdermonarch, L.L.C., No. 16-cv-00411-WYD-NYW, 2017 U.S. Dist. LEXIS 151229, 2017 WL 4158487, at *5 (D. Colo. July 5, 2017) (“Businesses engaged in recreational activities like [defendant’s ski services] have been held not to owe special duties to the public or to perform essential public services.”); Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (“Providing snowmobile tours to the public does not fall within” the first Jones factor.); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (holding white-water rafting is recreational in nature and is therefore “neither a matter of great public importance nor a matter of practical necessity” (internal quotation marks omitted)), aff’d sub nom., Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997).

The relevant services provided by VSRI–skiing and ski lessons–are [*14] clearly recreational in nature. Like horseback riding and skydiving services, see Chadwick, 100 P.3d at 467; Jones, 623 P.2d at 377, skiing and ski lessons are not of great public importance or “matter[s] of practical necessity for even some members of the public,” Jones, 623 P.2d at 377. They therefore do not implicate the type of duty to the public contemplated in the first Jones factor. Although it appears the Colorado Supreme Court and Colorado Court of Appeals have yet to address the first Jones factor within the context of skiing or ski lesson services, the few courts that have considered similar issues have reached the unsurprising conclusion that ski-related services are recreational activities and do not involve a duty to the public. See, e.g., Rumpf v. Sunlight, Inc., No. 14-cv-03328-WYD-KLM, 2016 U.S. Dist. LEXIS 107946, 2016 WL 4275386, at *3 (D. Colo. Aug. 3, 2016); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409 (D. Colo. 1994); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992).

Dr. Brigance fails to address the principle “that businesses engaged in recreational activities that are not practically necessary . . . do not perform services implicating a public duty.” Hamill, 262 P.3d at 949. Instead, she contends VSRI owes a duty to the public because the ski and ski lesson services provided by VSRI implicate a number of additional factors the California Supreme Court relied upon in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (Cal. 1963), to determine whether an exculpatory agreement should be deemed invalid as affecting [*15] public interest.3 Specifically, Dr. Brigance contends VSRI owes a duty to the public because the Colorado ski industry is subject to express regulation under the SSA and PTSA, VSRI is willing to perform its services for any member of the public who seeks them, VSRI maintains an advantage in bargaining strength, and skiers are placed under the complete control of VSRI when riding their lifts.

3 Dr. Brigance separately argues that the waivers are invalid under the provisions and public policies contained within the SSA, PTSA, and PLA. Although she incorporates these arguments in her analysis of the first Jones factor, we address them separately in Section II.B, infra.

The Colorado Supreme Court has cited Tunkl and noted its relevance in determining whether a business owes a duty to the public. Jones, 623 P.2d at 376-77. But when analyzing the first Jones factor, particularly within the context of recreational services, courts applying Colorado law focus on and give greatest weight to whether the party seeking to enforce an exculpatory agreement is engaged in providing services that are of great public importance or practical necessity for at least some members of the public. See, e.g., Espinoza, 809 F.3d at 1153-54; Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 896-97 (D. Colo. 1998); Potter, 849 F. Supp. at 1409; Jones, 623 P.2d at 376-77; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. And the additional factors listed by Dr. Brigance are insufficient to establish that the recreational services offered by VSRI are of great public importance or practically necessary. An activity does not satisfy the first Jones factor simply because it is subject to state regulation. [*16] As we have explained, the first Jones factor does not

ask whether the activity in question is the subject of some sort of state regulation. Instead, [it] ask[s] whether the service provided is of “great importance to the public,” a matter of “practical necessity” as opposed to (among other things) a “recreational one. [Jones,] 623 P.2d at 376-77. And the distinction the Jones factors draw between essential and recreational services would break down pretty quickly if the presence of some state regulation were enough to convert an otherwise obviously “recreational” service into a “practically necessary” one. After all, state law imposes various rules and regulations on service providers in most every field these days–including on service providers who operate in a variety of clearly recreational fields.

Espinoza, 809 F.3d at 1154; see also Chadwick, 100 P.3d at 467-68. Furthermore, Dr. Brigance’s argument regarding VSRI’s bargaining strength is more properly addressed under the third Jones factor, and her remaining arguments concerning VSRI’s willingness to provide services to the public and its control over skiers are not sufficiently compelling to sway us from departing from the principle “that [HN7] no public duty is implicated if a business provides recreational services.” [*17] Stone, 2016 COA 189M, 2016 WL 7473806, at *3.

The district court therefore did not err in concluding that the first Jones factor does not render the Ski School Waiver and the Lift Ticket Waiver unenforceable.

2. Nature of the Service Performed

[HN8] Under the second Jones factor, we examine “the nature of the service performed.” Jones, 623 P.2d at 376. Analysis of this factor is linked to and in many respects overlaps the analysis conducted under the first Jones factor, as it calls for an examination of whether the service provided is an “essential service” or a “matter of practical necessity.” See Espinoza, 809 F.3d at 1153; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. As is evident from our discussion of the first Jones factor, Colorado “courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3; see also Chadwick, 100 P.3d at 467 (noting “recreational activities . . . are not practically necessary”); Jones, 623 P.2d at 377-78 (holding the skydiving service provided by defendants “was not an essential service”); Hamill, 262 P.3d at 949 (acknowledging recreational camping and horseback riding services are not essential or matters of practical necessity). And as previously established, the ski and ski lesson services offered by VSRI are recreational in nature and therefore, like other recreational activities examined by this and other [*18] courts, cannot be deemed essential or of practical necessity. See, e.g., Mincin, 308 F.3d at 1111 (“[M]ountain biking is not an essential activity.”); Squires ex rel. Squires v. Goodwin, 829 F. Supp. 2d 1062, 1073 (D. Colo. 2011) (noting the parties did not dispute that skiing “is a recreational service, not an essential service”); Rowan, 31 F. Supp. 2d at 897 (“[S]kiing is not an essential service.”); Potter, 849 F. Supp. at 1410 (disagreeing with plaintiff’s argument that “ski racing for handicapped skiers rises to the level of an essential service [as] contemplated by Colorado law”); Bauer, 788 F. Supp. at 474 (noting “free skiing[, equipment rentals, and ski lessons] for travel agents do[ ] not rise to the level of essential service[s] contemplated by Colorado law.”).

Dr. Brigance raises no argument specific to this factor other than asserting that “the ski industry is a significant revenue generator for the State of Colorado” and the services provided by VSRI are “public [in] nature.” Aplt. Br. 47. Dr. Brigance cites no authority suggesting that either factor would render the recreational services provided by VSRI essential in nature. And given Colorado courts’ assertion that “recreational services [are] neither essential nor . . . matter[s] of practical necessity,” Stone, 2016 COA 189M, 2016 WL 7473806, at *3, we conclude the district court did not err in determining that the second Jones factor also does not dictate that the waivers be [*19] deemed unenforceable.

3. Whether the Waivers Were Fairly Entered Into

[HN9] The third Jones factor requires us to examine “whether the contract was fairly entered into.” Jones, 623 P.2d at 376. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 262 P.3d at 949 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989)). When engaging in this analysis, we examine the nature of the service involved, Espinoza, 809 F.3d at 1156, the circumstances surrounding the formation of the contract, id., and whether the services provided are available from a source other than the party with which the plaintiff contracted,
see Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 950.

The Colorado Court of Appeals has identified “[p]ossible examples of unfair disparity in bargaining power [as] includ[ing] agreements between employers and employees and between common carriers or public utilities and members of the public.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. It has also expressly acknowledged an unfair disparity in bargaining power in residential landlord-tenant relationships, presumably based in part on its holding “that housing rental is a matter of practical necessity to the public.” Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996). But the Colorado Court of Appeals has also held that “this type of unfair disparity [*20] is generally not implicated when a person contracts with a business providing recreational services.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. This is because recreational activities are not essential services or practically necessary, and therefore a person is not “at the mercy” of a business’s negligence when entering an exculpatory agreement involving recreational activities. Hamill, 262 P.3d at 949-50. As we have previously explained, “Colorado courts have repeatedly emphasized that . . . because recreational businesses do not provide ‘essential’ services of ‘practical necessity[,]’ individuals are generally free to walk away if they do not wish to assume the risks described” in an exculpatory agreement. Espinoza, 809 F.3d at 1157; see also Mincin, 308 F.3d at 1111 (noting that a disparity of bargaining power may be created by the “practical necessity” of a service, but that no such necessity existed because “mountain biking is not an essential activity” and therefore the plaintiff “did not enter into the contract from an inferior bargaining position”).

We reiterate, at the risk of redundancy, that the ski and ski lesson services offered by VSRI are recreational in nature and do not constitute essential services or matters of practical necessity. As a result, Dr. Brigance did not enter the Ski [*21] School Waiver or Lift Ticket Waiver from an unfair bargaining position because she was free to walk away if she did not wish to assume the risks or waive the right to bring certain claims as described in the waivers. This conclusion is supported by a number of cases involving similar recreational activities, including those we have previously addressed under the first two Jones factors. See, Jones, 623 P.2d at 377-78 (holding an exculpatory release related to skydiving services was not an unenforceable adhesion contract “because the service provided . . . was not an essential service” and therefore the defendant “did not possess a decisive advantage of bargaining strength over” the plaintiff); see also Squires, 829 F. Supp. 2d at 1071 (“Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage.”); Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993) (“[T]he recreational services offered by [defendant] were not essential and, therefore, [it] did not enjoy an unfair bargaining advantage.”); Bauer, 788 F. Supp. at 475 (“Here, defendants’ recreational services were not essential and, therefore, they did not enjoy an unfair bargaining advantage.”).

Moreover, the circumstances surrounding Dr. Brigance’s entry into the exculpatory agreements indicate she [*22] did so fairly. Dr. Brigance does not identify any evidence in the record calling into question her competency, ability to comprehend the terms of the agreements, or actual understanding of the agreements. Nor does she point to anything in the record reflecting an intent or attempt by VSRI to fraudulently induce her to enter the agreements or to conceal or misconstrue their contents. In addition, there is nothing in the record to suggest Dr. Brigance’s agreement to the terms of the Ski School Waiver was not voluntary. See Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4.

Notwithstanding the well-established law that exculpatory agreements involving businesses providing recreational services do not implicate the third Jones factor, Dr. Brigance argues her assent to the terms of the Lift Ticket Waiver was obtained unfairly and that VSRI had an advantage in bargaining strength. This is so, she contends, because she “did not have a chance to review the exculpatory language contained on the back of the non-refundable [lift] ticket before she purchased it” and that “[o]nce the ticket was purchased, she was forced to accept the exculpatory language or lose the money she invested.” Aplt. Br. 47. Dr. Brigance’s argument fails to account for her [*23] voluntary acceptance of the Ski School Waiver. And although Dr. Brigance asserts she “did not have a chance to review” the Lift Ticket Waiver before purchasing it, she does not identify any evidence that VSRI prevented her from reviewing the Lift Ticket Waiver before she used it to ride the Discovery Lift, and “Colorado courts have repeatedly emphasized that individuals engaged in recreational activities are generally expected to read materials like these.” Espinoza, 809 F.3d at 1157. Most importantly, Dr. Brigance did not raise this argument below and does not provide a compelling reason for us to address it on appeal.4
See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”).

4 In fact, the district court noted that Dr. Brigance “neither disputes the relevant facts nor counters VSRI’s argument that she accepted the contractual terms of the Lift Ticket Waiver by skiing and riding the lifts.” Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4. As a result, the district court concluded Dr. Brigance had agreed to the terms of the Lift Ticket Waiver and would be bound to its terms to the extent it was otherwise enforceable. Id.

For these reasons, the district court did not err in concluding that the third Jones factor does not render the Ski School Waiver or the Lift Ticket Waiver unenforceable.

4. Whether the Parties’ Intent Was Expressed Clearly and Unambiguously

[HN10] The fourth and final Jones factor is “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. The inquiry conducted under this factor “should be whether the intent of the parties was to extinguish liability and [*24] whether this intent was clearly and unambiguously expressed.Heil Valley Ranch, 784 P.2d at 785. The Colorado Supreme Court has explained that “[t]o determine whether the intent of the parties is clearly and unambiguously expressed, we [may] examine[ ] the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.”
Chadwick, 100 P.3d at 467. We may also take into account a party’s subsequent acknowledgement that it understood the provisions of the agreement. Id.
In addition, it is well-established that the term “negligence” is not invariably required for an exculpatory agreement to be deemed an unambiguous waiver or release of claims arising from negligent conduct. Id.

The Ski School Waiver contains approximately a page and a half of terms and conditions in small, but not unreadable, font.5 It prominently identifies itself as, among other things, a “RELEASE OF LIABILITY . . . AGREEMENT”–a fact that is reiterated in the subtitle of the agreement by inclusion of the statement “THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.” Aplt. App’x 117. The provisions of the waiver include the signer’s express acknowledgment [*25] and assumption of “ALL INHERENT DANGERS AND RISKS of the Activity, including those of a ‘skier’ (as may be identified by statute or other applicable law),” as well as “all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a lengthy list of specific events and circumstances that includes “lift loading, unloading, and riding.” Id. In addition to this assumption-of-the-risk language, the Ski School Waiver provides that the signer

AGREE[S] TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY CONTRACT AND/OR EXPRESS OR IMPLIED WARRANTY.

Id.

5 Although Dr. Brigance denies that she signed the Ski School Waiver, see supra note 1, she has not made any arguments regarding the readability or font size of the terms and conditions.

The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing [*26] some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.” Id. at 121.

Neither waiver is unduly long nor complicated, unreadable, or overburdened with legal jargon. Most importantly, the intent of the waivers is clear and unambiguous. In addition to the language indicating Dr. Brigance’s assumption of all risks of skiing, inherent or otherwise, both waivers contain clear language stating that Dr. Brigance agreed to hold VSRI harmless for injuries to her person as a result of skiing at Keystone. Moreover, the Ski School Waiver clearly and unambiguously provides that Dr. Brigance agreed to “RELEASE, INDEMNIFY, AND NOT TO SUE” VSRI for personal injuries arising in whole or in part from her participation in ski lessons, including claims based on VSRI’s “ALLEGED OR ACTUAL NEGLIGENCE.” Id. at 117. Dr. Brigance does not argue that any of the language regarding her agreement to hold harmless, indemnify, release, or not to sue VSRI is ambiguous or confusing. [*27] And like this and other courts’ examination of similarly worded provisions, we conclude the relevant release language of the Ski School Waiver and Lift Ticket Waiver cannot be reasonably understood as expressing anything other than an intent to release or bar suit against VSRI from claims arising, in whole or in part, as a result of Dr. Brigance’s decision to ski and participate in ski lessons at Keystone, including claims based on VSRI’s negligence. See Espinoza, 809 F.3d at 1157-58; Mincin, 308 F.3d at 1112-13; Chadwick, 100 P.3d at 468-69; B & B Livery, 960 P.2d at 137-38; Hamill, 262 P.3d at 950-51.

Dr. Brigance’s argument on appeal regarding the fourth Jones factor centers on the assumption-of-the-risk language contained in both waivers. Specifically, Dr. Brigance contends the intent of the waivers is ambiguous because the provisions providing that she assumes all risks of skiing, “inherent or otherwise,” conflict with the SSA because the statute’s provisions only bar a skier from recovering against a ski area operator “for injury resulting from any of the inherent dangers and risks of skiing.” Colo. Rev. Stat. § 33-44-112; see also id. at 33-44-103(3.5). Because of this alleged conflict, Dr. Brigance asserts that she could not know whether she was “releasing [VSRI] of all liability as indicated by the [waivers], or only for the inherent risks of skiing as [*28] mandated by the SSA.” Aplt. Br. 50-51.

Dr. Brigance’s argument is unavailing for a number of reasons. First, it only addresses the assumption-of-the-risk language contained in each waiver. But the more pertinent provisions of the waivers are those regarding Dr. Brigance’s agreement to hold harmless, release, indemnify, and not to sue VSRI. These provisions appear independent from the assumption-of-the-risk language and therefore their plain meaning is unaffected by any potential ambiguity in the “inherent or otherwise” clauses. Dr. Brigance does not contest the clarity of the release provisions and, as previously described, we believe those provisions unambiguously reflect the parties’ intent to release VSRI from claims arising from Dr. Brigance’s participation in ski lessons at Keystone.

Second, the Lift Ticket Waiver’s “assumes all risks, inherent or otherwise” phrase, as well as a similar phrase contained in the Ski School Waiver, are not ambiguous. Rather, their meanings are clear–the signer of the agreement or holder of the ticket is to assume all risks of skiing, whether inherent to skiing or not. The term “otherwise,” when “paired with an adjective or adverb to indicate its contrary”–as [*29] is done in both waivers–is best understood to mean “NOT.” Webster’s Third New Int’l Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. Dr. Brigance offers no alternative reading of the phrases and does not specify how “inherent or otherwise” could be understood as only referring to the inherent risks identified in the SSA. And while the Ski School Waiver contains a provision in which the signer agrees to assume all inherent dangers and risks of skiing as may be defined by statute or other applicable law, the next provision of the agreement clearly expands that assumption of risk, stating that the signer “expressly acknowledge[s] and assume[s] all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a rather extensive list of circumstances or events that may occur while skiing, including “lift loading, unloading, and riding.” Aplt. App’x at 117. That same provision continues, indicating that the signer understands the description of risks in the agreement is “NOT COMPLETE,” but that the signer nevertheless [*30] voluntarily chooses to “EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.” Id. Reading the “inherent or otherwise” phrase in context clearly indicates that, at a minimum, the Ski School Waiver includes an assumption of risk above and beyond the inherent risks and dangers of skiing as defined in the SSA. See Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (“In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.”); Moland v. Indus. Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004) (“The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.”).

Third, the Colorado Supreme Court rejected a similar argument in B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998). There, the Colorado Supreme Court examined an exculpatory agreement that included a statutorily mandated warning that equine professionals are not liable to others for the inherent risks associated with participating in equine activities, “as well as a broader clause limiting liability from non-inherent risks.” Id. at 137-38. It concluded that “the [*31] insertion of a broader clause further limiting liability does not make the agreement ambiguous per se” and instead “merely evinces an intent to extinguish liability above and beyond that provided” in the statute. Id. at 137; see also Hamill, 262 P.3d at 951 (upholding enforcement of an exculpatory agreement that purported to cover “inherent and other risks,” as well as claims against “any legal liability,” and noting that “[t]o hold . . . that the release did not provide greater protection than the release from liability of inherent risks provided by the equine act . . . would render large portions of the agreement meaningless”). Furthermore, the waivers do not conflict with the SSA merely because they purport to cover a broader range of risks than those identified by the statute as inherent to skiing. See Fullick v. Breckenridge Ski Corp., No. 90-1377, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3 (10th Cir. Apr. 29, 1992) (unpublished) (“If one could never release liability to a greater degree than a release provided in a statute, then one would never need to draft a release, in any context.”); Chadwick, 100 P.3d at 468 (“[T]his court has made clear that parties may, consistent with the [equine] statute, contract separately to release sponsors even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.”).

Finally, the single [*32] case relied upon by Dr. Brigance that applies Colorado law is distinguishable. In Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899-900 (D. Colo. 1998), the district court determined an exculpatory agreement was ambiguous and therefore unenforceable in part because it first recited “the risks being assumed in the broadest possible language,” expressly including risks associated with the use of ski lifts, and then later addressed the assumption of risk in terms of the inherent risks and dangers of skiing as defined in the SSA, which indicates the use of ski lifts does not fall within its definition of inherent risks. The release therefore conflicted with itself and the relevant statutory language.
See Cunningham v. Jackson Hole Mountain Resort Corp., 673 F. App’x 841, 847 (10th Cir. Dec. 20, 2016) (unpublished). But unlike the waiver at issue in Rowan, the Ski School Waiver and Lift Ticket Waiver do not define the inherent risks of skiing in a manner contrary to the SSA. Nor do they contain conflicting provisions. The non-exhaustive list of inherent risks identified in the Lift Ticket Waiver appears to be drawn directly from the SSA, while the Ski School Waiver indicates inherent risks include those “as may be defined by statute or other applicable law.” Aplt. App’x at 117, 121. In addition, after referencing the inherent risks of skiing and providing that the signer [*33] of the agreement assumes those risks, the Ski School Waiver goes on to identify other, non-inherent risks associated with skiing and ski lessons and expressly provides that the signer assumes those risks. Specifically, the waiver makes clear that the risks assumed by Dr. Brigance include “all additional risks and dangers . . . above and beyond the inherent dangers and risks” of skiing and ski lessons, whether described in the waiver or not, known or unknown, or inherent or otherwise. Id. at 117. Unlike the provisions at issue in Rowan that provided conflicting statements regarding the risks assumed, the waivers here unambiguously provide that Dr. Brigance agreed to not only assume risks and dangers inherent to skiing, but also those risks and dangers not inherent to skiing.

Accordingly, the district court did not err in concluding that the fourth Jones factor does not invalidate the waivers.

***

Based on the foregoing analysis, we agree with the district court that application of the Jones factors to the Ski School Waiver and Lift Ticket Waiver do not render them unenforceable.

B. The SSA and PTSA

Although analysis of the Jones factors is often sufficient to determine the validity of an exculpatory [*34] agreement, the Colorado Supreme Court has “identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.” Boles, 223 P.3d at 726. At various points on appeal, either as standalone arguments or embedded within her analysis of the Jones factors, Dr. Brigance contends the Ski School Waiver and the Lift Ticket Waiver are unenforceable as contrary to Colorado public policy because they conflict with the SSA, PTSA, and the public policies announced therein.6 The district court considered these arguments and determined that the statutes do not affect the enforceability of either waiver as to Dr. Brigance’s claims. We find no reason to disagree.

6 Dr. Brigance also argues that the PLA prohibits use of exculpatory agreements as a defense to claims raised under its provisions and that the Ski School Waiver and Lift Ticket Waiver conflict with the public policies set forth in its provisions. But Dr. Brigance forfeited these arguments by failing to raise them in the district court. Avenue Capital Mgmt. II, 843 F.3d at 884. Although we may consider forfeited arguments under a plain-error standard, we decline to do so when, as here, the appellant fails to argue plain error on appeal. Id. at 885; see also Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011). We decline to address Dr. Brigance’s argument that the waivers are unenforceable because their language is broad enough to encompass willful and wanton behavior for the same reason.

In 1965, the Colorado General Assembly enacted the PTSA with the purpose of assisting “in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.” Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 73 (Colo. 1998). [HN11] The PTSA provides that “it is the policy of the state of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of passenger tramways” and to assure that reasonable design and construction, periodic inspections, and adequate devices and personnel are provided with respect to passenger [*35] tramways. Colo. Rev. Stat. § 25-5-701. The General Assembly empowered the board “with rulemaking and enforcement authority to carry out its functions,” including the authority to “conduct investigations and inspections” and “discipline ski area operators.” Bayer, 960 P.2d at 73-74; see also Colo. Rev. Stat. §§ 25-5-703 to -704, -706 to -707. With its authority, the board adopted the standards, with some alterations, utilized by the American National Standards Institute for passenger tramways. Bayer, 960 P.2d at 73-74.

The General Assembly enacted the SSA fourteen years later. The SSA “supplements the [PTSA]’s focus on ski lifts, but its principal function is to define the duties of ski areas and skiers with regard to activities and features on the ski slopes.” Id. at 74. [HN12] The provisions of the SSA indicate that “it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them” and that the SSA’s purpose is to supplement a portion of the PTSA by “further defin[ing] the legal responsibilities of ski area operators . . . and . . . the rights and liabilities existing between the skier and the ski area operator.” Colo. Rev. Stat. § 33-44-102. [HN13] In addition to the SSA’s provisions defining various responsibilities and duties of skiers and ski area operators, [*36] the 1990 amendments to the SSA limited the liability of ski area operators by providing that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” Id. at 33-44-112. The SSA also provides that any violation of its provisions applicable to skiers constitutes negligence on the part of the skier, while “[a] violation by a ski area operator of any requirement of [the SSA] or any rule or regulation promulgated by the passenger tramway safety board . . . shall . . . constitute negligence on the part of such operator.” Id. at 33-44-104. “The effect of these statutory provisions is to make violations of the [SSA] and [the rules and regulations promulgated by passenger tramway safety board] negligence per se.Bayer, 960 P.2d at 74. [HN14] Ultimately, the SSA and PTSA together “provide a comprehensive . . . framework which preserves ski lift common law negligence actions, while at the same time limiting skier suits for inherent dangers on the slopes and defining per se negligence for violation of statutory and regulatory requirements.” Id. at 75.

Dr. Brigance contends the waivers conflict with the public policy objectives of the SSA and PTSA because enforcing [*37] either waiver would allow VSRI to disregard its statutorily defined responsibilities and duties. We find Dr. Brigance’s argument unpersuasive.

At the outset, it is worth reiterating that [HN15] under Colorado law exculpatory agreements are not invalid as contrary to public policy simply because they involve an activity subject to state regulation. Espinoza, 308 F.3d at 1154; see also id. at 1155 (acknowledging the Colorado Supreme Court has allowed enforcement of exculpatory agreements with respect to equine activities despite the existence of a statute limiting liability for equine professionals in certain circumstances, while still allowing for liability in other circumstances); Mincin, 308 F.3d at 1111 (“The fact that the Colorado legislature has limited landowner liability in the contexts of horseback riding and skiing is relevant to the question of whether landowner liability might be limited in other circumstances absent a contract.”). Similarly, exculpatory agreements do not conflict with Colorado public policy merely because they release liability to a greater extent than a release provided in a statute.
See Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3; Chadwick, 100 P.3d at 468; B & B Livery, 960 P.2d at 137-38.

[HN16] It is true that the SSA and PTSA identify various duties and responsibilities that, if violated, may subject a ski area operator to [*38] liability. But the acts establish a framework preserving common law negligence actions in the ski and ski lift context, Bayer, 960 P.2d at 75, and do nothing to expressly or implicitly preclude private parties from contractually releasing potential common law negligence claims through use of an exculpatory agreement. While “a statute . . . need not explicitly bar waiver by contract for the contract provision to be invalid because it is contrary to public policy,” Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996), Dr. Brigance does not identify a single provision in either the SSA or PTSA suggesting the enforcement of exculpatory agreements in the ski and ski lift context is impermissible or contrary to public policy. Moreover, “Colorado law has long permitted parties to contract away negligence claims in the recreational context” and we “generally will not assume that the General Assembly mean[t] to displace background common law principles absent some clear legislative expression of that intent.” Espinoza, 809 F.3d at 1154, 1155. This principle is particularly relevant in the context of exculpatory agreements because “[t]he General Assembly . . . has shown that–when it wishes–it well knows how to displace background common law norms and preclude the release of civil claims.” Espinoza, 809 F.3d at 1154-55.

Our conclusion that [*39] the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims. In 2002, the Colorado Supreme Court concluded that Colorado public policy prohibits a parent or guardian from releasing a minor’s prospective claims for negligence. See Cooper, 48 P.3d at 1237. The Colorado Supreme Court’s broad holding appeared to apply even within the context of recreational activities, as the relevant minor had injured himself while skiing. Id. at 1231-35. The following year, the General Assembly enacted Colo. Rev. Stat. § 13-22-107, which expressly declared that the General Assembly would not adopt the Colorado Supreme Court’s holding in Cooper. Colo. Rev. Stat. § 13-22-107(1)(b). Instead, the General Assembly explained that, among other things, it is the public policy of Colorado that “[c]hildren . . . should have the maximum opportunity to participate in sporting, recreational, educational, and other activities [*40] where certain risks may exist” and that “[p]ublic, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits.” Id. at 13-22-107(1)(a)(I)-(II). Accordingly, the General Assembly established that “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Id. at 13-22-107(3). The General Assembly’s enactment of § 33-22-107 reaffirms Colorado’s permissive position on the use of exculpatory agreements in the recreational context, and its authorization of parental releases and waivers suggests it did not intend and would not interpret the SSA as barring such agreements for adults.

Notwithstanding the lack of any statutory suggestion that the SSA and PTSA prohibit the enforcement of exculpatory agreements as a matter of public policy, Dr. Brigance contends two Colorado Court of Appeals decisions support her assertion to the contrary. In Stanley v. Creighton, the Colorado Court of Appeals analyzed an exculpatory clause in a residential rental agreement under the Jones factors and concluded that the agreement involved a public interest sufficient to invalidate the exculpatory [*41] clause. 911 P.2d at 707-08. The Stanley court reached this conclusion because, among other things, Colorado has long regulated the relationship between landlords and tenants, the PLA “confirms that landowner negligence is an issue of public concern,” and “a landlord’s services are generally held out to the public and . . . housing rental is a matter of practical necessity to the public.” Id. Although the Stanley court’s partial reliance on the existence of state regulations tends to support Dr. Brigance’s assertion that the existence of the SSA and PTSA render the Ski School Wavier and Lift Ticket Waiver either contrary to public policy or sufficient to satisfy the first Jones factor, the circumstances here are readily distinguishable. Unlike residential housing, skiing is not essential nor a matter of practical necessity. Among other considerations not present here, the Stanley court “placed greater emphasis on the essential nature of residential housing” and “alluded to a distinction between residential and commercial leases, implying that an exculpatory clause might well be valid in the context of a commercial lease.” Mincin, 308 F.3d at 1110.

Similarly, Dr. Brigance’s reliance on Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983), does not alter our conclusion. In Phillips [*42]
, the Colorado Court of Appeals stated that “[s]tatutory provisions may not be modified by private agreement if doing so would violate the public policy expressed in the statute.” Id. at 987. Applying this principle, the Phillips court concluded that because the SSA “allocate[s] the parties’ respective duties with regard to the safety of those around them, . . . the trial court correctly excluded a purported [exculpatory] agreement intended to alter those duties.” Id. But apparently unlike the agreement at issue in Phillips, the Ski School Waiver and Lift Ticket Waiver do not appear to alter the duties placed upon VSRI under the SSA. See, Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3. And the court’s application of this principle to the SSA appears to be inconsistent with the more recent pronouncements by the Colorado Supreme Court and General Assembly regarding Colorado policies toward the enforceability of exculpatory agreements in the context of recreational activities. Moreover, as detailed above, the SSA and PTSA do not express a policy against exculpatory agreements.

“Given all this,” particularly the SSA’s and PTSA’s silence with respect to exculpatory agreements, “we do not think it our place to adorn the General Assembly’s handiwork with revisions to [*43] the [SSA, PTSA, and] common law that it easily could have but declined to undertake for itself.” Espinoza, 809 F.3d at 1155.

In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” Espinoza, 809 F.3d at 1153. And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.

III. CONCLUSION

We AFFIRM the district court’s grant of summary judgment in favor of VSRI and, on this alternative basis, its partial grant of VSRI’s motion to dismiss.


When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.

In this case, the national organization was also sued for failing to instruct and enforce the regional organization in the rules, regulations, standards or policies. If you are going to make rules, and you say the rules must be followed you have to make sure you train in the rules and that everyone follows the rules.

If you make a rule you have to enforce it if you are in charge of making rules.
Otherwise, don’t make rules!

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005 

State: Illinois, United States District Court for the Central District of Illinois, Springfield Division

Plaintiff: T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually

Defendant: Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin

Plaintiff Claims: negligence and willful and wanton misconduct

Defendant Defenses: Failure to state a claim upon which relief can be granted filed in a Motion to dismiss

Holding: for the plaintiff

Year: 2017

This case is a federal diversity case. That means the plaintiff(s) and the defendant(s) were legally residents of different states, and the amount claimed by the plaintiff was greater than $75,000.00. In this case, the plaintiff was from California, and the Defendant was located in Illinois.

The plaintiff was in Illinois and attending the Decatur Boys & Girls Club, which was part of the America Boys & Girls Club. America Boys & Girls Club was based in Georgia.

America Boys & Girls Club provided policies, procedures, rules, guidelines and instructions to the Decatur Boys & Girls Clubs, and all other Boys & Girls Clubs. The Boys & Girls Clubs are required to follow the operating policies, procedures, rules, guidelines, and instructions.

While attending the club, the plaintiff was taken to a local farm. Neither of the defendants had permission to transport the minor plaintiff to the farm. While there the plaintiff was riding on a trailer (probably a hay ride)that did not have guardrails, seats, seatbelts or other equipment designed from keeping people from falling off. (But then very few hay rides do.) The tractor and trailer were pulled onto a public highway with 15-20 children on it. While on the highway the plaintiff either jumped or fell off or might have been pushed
off sustaining injuries.

The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor defendant.

The issue that the trailer was not designed to be on a highway and did not have seats, seatbelts or other equipment to keep people from falling off was repeatedly brought up by the court.

The defendants filed a motion to dismiss, and this opinion is court’s response to that motion.

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

A motion to dismiss is a preliminary motion filed when the allegations in the complaint do not meet the minimum requirements to make a legally recognizable claim.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” “The required level of factual specificity rises with the complexity of the claim.”

When reviewing a motion to dismiss the court must look at the plaintiff’s pleadings as true and any inference that must be drawn from the pleadings is done so in favor of the plaintiff.

To plead negligence under Illinois’s law the plaintiff must prove “…that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” In Illinois, every person owes all other persons “a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.”

Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm.

It is a legal question to be decided by the court if a legal duty exists.

…the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two  organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions.

The plaintiffs argued the duty of care of the two organizations was breached by:

(1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer.

The plaintiff’s also argued there was a greater responsibility and as such duty on the part of the America Boys & Girls Club to train the Decatur club on its rules, regulations and policies and failing to train on them was  also negligent.

T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club, and that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed.

In this case, the duty of care was created by the rules, regulations, policies and procedures created by the America Boys & Girls Clubs upon the Decatur Boys & Girls Club.

The plaintiff went on to argue, and since it was quoted by the court, accepted by the court that:

Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to  give him a ride on the trailer. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2)
failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway.

The court held this was enough to create a duty of care and proved a possible negligence claim.

Furthermore, of note was a statement that a statutory violation of a statute in Illinois does not create a negligence per se claim.

A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”

The court then looked at the minor plaintiff’s father claims to see if those met the requirements to prove negligence in Illinois.

To state a negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him.

However, the father was not able to prove his claim because it is separate and distinct from the minor’s claim. “The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings.”

It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants, therefore, had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

The father also pleaded a claim for loss of aid, comfort, society and companionship of his child. However, Illinois’s law does not allow for recovery of those emotional damages unless the child’s injury is a fatality.

The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act.

However, the father did have a claim for the medical expenses the father paid on behalf of his minor son for the injuries he incurred.

The plaintiff also pleaded res ipsa loquitur.

Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Accordingly, res ipsa lo-quitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.”

Res ipsa loquitur is a claim that when an incident has occurred, the control of the instrumentality was solely within the control of the defendant.

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.

An example of res ipsa loquitur is a passenger in an airplane that crashes. The pilot is the defendant, and the
control of the airplane is solely with the pilot.

Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.

However, the allegations of the plaintiff did not meet the requirements of res ipsa loquitur in Illinois.

Plaintiff’s final allegation discussed in the opinion was one for willful and wanton misconduct on the part of the defendants. Under Illinois’s law to establish a claim for willful and wanton conduct, the plaintiff must.

…plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.

Generally, this is the same standard to prove willful and wanton conduct in most states. Once the negligence claim is proved, then the allegations only need to support the additional acts as willful and wanton.

Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants.

The court defined willful and wanton conduct.

Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. To meet this standard, the defendant “must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

With the allegations plead, the court found sufficient information to confirm the plaintiff going forward with willful and wanton claims. Those allegations include:

Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. T.K. further alleges that the trailer was not designed to transport people.

Putting kids on a trailer was a major issue for the court. Kids on a highway on a vehicle not created to transport people were enough to create willful and wanton conduct.

The defendant argued that the allegations that created the negligence claim were also allowed to be the same facts. No new allegations needed to be plead to support the claims for willful and wanton conduct.

Under Illinois’s law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.

The plaintiff had pled enough facts that the court found relevant and substantial to continue with the negligence and willful and wanton claim.

So Now What?

The actual rules, regulations, procedures were not identified by the court in making its decision. However, the continuous restatement of the plaintiff’s allegations in the same order and words. However, the court specifically stated the defendants failed to follow their own rules.

If you have rules, regulations, policies, procedures, or you must abide by such you MUST follow them. There are no loop holes, exceptions or “just this one time” when dealing with rules, policies and procedures that affect safety or affect minors. If you make them, you must follow them.

If you make them, you must make sure everyone is trained on them. One of the big issues the plaintiff pleads and the court accepted was the rules made by the parent organization were not known or followed by the subsidiary organization. The parent organization when making rules is under a requirement to make sure
the rules are understood and followed according to this decision in Tennessee.

The other major issue was transporting the plaintiff away from the location where the parents thought the plaintiff would be without their permission and then transporting the plaintiff on a road without meeting the requirements of state law, seats, seat belts, etc.

When you have minors, especially minors under the age of ten, you are only acting within the realm and space permitted by the parents. The line that makes me cringe every time I hear it on the news is “If I would have known they were going to do ______________, I never would have let me kid go.” Listen and you
will realize you will hear it a lot when a minor is injured.

You need to prepare your program and your parents so that line is never spoken about you.

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

What do you think? Leave a comment.

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T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually, Plaintiffs, v. Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin, Defendants.

Case No. 16-cv-03056

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

2017 U.S. Dist. LEXIS 87005

June 6, 2017, Decided

June 7, 2017, E-Filed

CORE TERMS: trailer, willful, farm, wanton misconduct, res ipsa loquitur, negligence claims, pleaded, cognizable, exclusive control, wanton, medical expenses, supervision, pulled, negligence per se, public road, legal conclusions, pulling, seat, factual allegations, right to relief, conscious disregard, indifference, speculative, supervise, reckless, notice, owed, public highway, guidelines, transport

COUNSEL: [*1] For T.K., a Minor, By And Through His Natural Father and Next Friend, Timothy Killings, Timothy Killings, Plaintiffs: Christopher Ryan Dixon, THE DIXON INJURY FIRM, St Louis, MO.

For Boys & Girls Club of America, Boys and Girls Club of Decatur, Inc., Defendants: Randall A Mead, LEAD ATTORNEY, DRAKE NARUP & MEAD PC, Springfield, IL.

For Mary K Paulin, Defendant: Daniel R Price, LEAD ATTORNEY, WHAM & WHAM, Centralia, IL.

JUDGES: SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

OPINION BY: SUE E. MYERSCOUGH

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court are Defendants Boys & Girls Clubs of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint (d/e 32) and Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33). The motion filed by Defendants Boys and Girls Club of Decatur, Inc. (Decatur Boys & Girls Club) and Boys & Girls Clubs of America (America Boys & Girls Club) is GRANTED IN PART and DENIED IN PART. Defendant Paulin’s motion is DENIED. In the Second Amended Complaint, T.K., a [*2] minor, through his father, Timothy Killings, sufficiently pleads negligence and willful and wanton misconduct causes of action against all Defendants. In addition, Mr. Killings pleads cognizable claims for T.K.’s past and future medical expenses against all Defendants. However, the allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable against Decatur Boys & Girls Club or America Boys & Girls Club.

I. BACKGROUND

The following facts come from Plaintiffs’ Second Amended Complaint. The Court accepts them as true at the motion to dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

On July 17, 2015, T.K., a then-eight-year-old resident of California, was a member of Decatur Boys & Girls Club, a corporate citizen of Illinois and a licensed child-care facility. On that same date, Decatur Boys & Girls Club was operating a summer camp through its agents and employees, and T.K. was under the paid care and supervision of Decatur Boys & Girls Club and America Boys & Girls Club. America Boys & Girls Club, a corporate citizen of Georgia, provides operating policies, procedures, rules, guidelines, and instructions regarding how Decatur Boys & Girls Club is to operate. Decatur [*3] Boys & Girls Club is required to follow these operating policies, procedures, rules, guidelines, and instructions.

On July 17, 2015, T.K. was taken from the premises of Decatur Boys & Girls Club in Decatur, Illinois, to property in Clinton, Illinois, owned by Defendant Paulin, an Illinois citizen. Neither Decatur Boys & Girls Club nor America Boys & Girls Club had permission to transport T.K. from Decatur to Defendant Paulin’s property in Clinton. Defendants,1 again without permission, put T.K. on a farm trailer owned by Defendant Paulin and located on Defendant Paulin’s property. The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor Defendant Paulin owned. The trailer was not being used in connection with a parade or a farm-related activity.

1 The use of “Defendants” in this Opinion will refer collectively to Decatur Boys & Girls Club, America Boys & Girls Club, and Mary K. Paulin.

While riding on the trailer, T.K. fell or jumped off the trailer or was pushed off. As a result, T.K. sustained injuries to his head, face, eyes, chest, neck, back, arms, lungs, hands, legs, [*4] and feet. T.K. underwent medical treatment for his injuries and will have to undergo additional treatment in the future. T.K’s father, Timothy Killings, a citizen of California, has incurred expenses related to his son’s medical care and will incur additional expenses in the future for his son’s future medical care.

On March 3, 2016, Plaintiffs filed their Complaint (d/e 1) against Defendants. Plaintiffs subsequently filed their First Amended Complaint (d/e 26) on May 23, 2016, and their Second Amended Complaint (d/e 31) on June 17, 2016. The Second Amended Complaint contains five counts. Counts 1 through 3 allege claims against Decatur Boys & Girls Club and America Boys & Girls Club for, respectively, negligence, negligence based on the doctrine of res ipsa loquitur, and willful and wanton misconduct. Counts 4 and 5 allege negligence and willful and wanton misconduct claims, respectively, against Defendant Paulin.

On June 27, 2016, Decatur Boys & Girls Club and America Boys & Girls Club filed their Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint, asking the Court to dismiss Counts 1 through 3 for failing to [*5] state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint. On June 30, 2017, Defendant Paulin filed her Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint, asking the Court to dismiss Counts 4 and 5 for failing to state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint.

II. JURISDICTION

This Court has original jurisdiction over Plaintiffs’ claims because no Plaintiff is a citizen of the same state as any Defendant and Plaintiffs are seeking damages in excess of $75,000. See 28 U.S.C. § 1332(a)(1); McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (“When the jurisdictional threshold is uncontested, we generally will accept the plaintiff’s good faith allegation of the amount in controversy unless it appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.”) (internal quotation marks omitted).

III. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Plausibility means alleging factual content that allows a court to reasonably infer [*6] that the defendant is liable for the alleged misconduct. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016). “The required level of factual specificity rises with the complexity of the claim.” McCauley v. City of Chicago, 671 F.3d 611, 616-17 (7th Cir. 2011).

When faced with a Rule 12(b)(6) motion to dismiss, the Court “accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). “[L]egal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley, 671 F.3d at 616. Further, the Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiff’s claim.” R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989). The Court may “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Pro. 12(f).

IV. ANALYSIS

A. Count I and Count IV Sufficiently Plead Negligence and Medical Expense Claims Against All Defendants.

1. T.K. has pleaded cognizable negligence claims against all Defendants.

In a case where federal jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332, “[s]tate substantive law applies, but federal procedural rules govern.” Doermer v. Callen, 847 F.3d 522, 529 (7th Cir. 2017). “To state a claim for negligence under Illinois law, a plaintiff must plead [*7] that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” Allstate Indem. Co. v. ADT LLC, 110 F. Supp. 3d 856, 862-63 (N.D. Ill. 2015) (citing Simpkins v. CSX Transp., Inc., 2012 IL 110662, 965 N.E.2d 1092, 1097, 358 Ill. Dec. 613 (Ill. 2012). In Illinois, “every person owes to all other persons a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 2012 IL 112479, 973 N.E.2d 880, 890, 362 Ill. Dec. 484 (Ill. 2012). Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm. Ryan v. Yarbrough, 355 Ill. App. 3d 342, 823 N.E.2d 259, 262, 291 Ill. Dec. 249 (Ill. App. Ct. 2005). Whether a duty exists is a question of law to be decided by the Court. Simpkins, 965 N.E.2d at 1096.

In support of his negligence claims against America Boys & Girls Club and Decatur Boys & Girls Club, T.K.2 alleges that he was a member of Decatur Boys & Girls Club and was entrusted to the care of both organizations on July 17, 2015. Sec. Am. Complaint, ¶¶ 15-16. America Boys & Girls Club and Decatur Boys & Girls Club agreed to accept the “care, custody, and control” of T.K. for the purpose of providing child care. Id. ¶ 16. T.K. also alleges [*8] that on July 17, 2015, the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions. Id. ¶¶ 42-43.

2 Plaintiffs do not separate T.K’s claims from Mr. Killings’ claims in the Second Amended Complaint. To avoid confusion, the Court will address the allegations of the Second Amended Complaint as those of T.K. when analyzing T.K’s claims and as those of Mr. Killings when analyzing Mr. Killings’ claims.

Further, according to T.K., America Boys & Girls Club and Decatur Boys & Girls Club breached the duty of care they owed him in several ways, including by (1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer. Id. ¶ 45. With respect to America Boys & Girls Club, T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club and [*9] that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed. Id. ¶¶ 46-47. In addition, T.K. claims that the actions of America Boys & Girls Club and Decatur Boys & Girls Club proximately caused his injuries. Id. ¶¶ 33-39, 49.

In support of his negligence claim against Defendant Paulin, T.K. alleges that on July 17, 2015, Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to give him a ride on the trailer. Sec. Am. Complaint, ¶¶ 21, 23. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. Id. ¶¶ 28-29. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2) failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn [*10] him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway. Id. ¶¶ 72-73. In addition, T.K. alleges that the actions of Defendant Paulin proximately caused his injuries. Id. ¶¶ 33-39, 75.

Based on these allegations, T.K. has sufficiently pleaded negligence claims against Decatur Boys & Girls Club, America Boys & Girls Club, and Defendant Paulin. The allegations in Count I and Count IV of the Second Amended Complaint give Defendants notice of the basis for T.K.’s negligence claims against them and are sufficient to establish that T.K. has a plausible, as opposed to speculative, right to relief against Defendants. This is all that is required of a plaintiff under the federal notice pleading regime. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 547.

Defendants do not seem to dispute such a finding. Indeed, their arguments for the dismissal of Count I and Count IV focus on the allegations in the Second Amended Complaint relating to an alleged violation of 625 Ill. Comp. Stat. 5/11-1408, a provision of the Illinois Vehicle Code, and claims that their alleged statutory violations constitute [*11] negligence per se. See Mot. to Dismiss (d/e 32), at 1-2; Memorandum of Law (d/e 21), at 4-6; Mot. to Dismiss (d/e 33), at 1-2; Memorandum of Law (d/e 34), at 1-2. Defendants are correct that Illinois does not recognize statutory violations as negligence per se. See Kalata v. Anheuser-Busch Companies, Inc., 144 Ill. 2d 425, 581 N.E.2d 656, 661, 163 Ill. Dec. 502 (Ill. 1991) (“A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”). But the inclusion of allegations regarding violations of 625 Ill. Comp. Stat. 5/11-1408 and negligence per se do not require the dismissal of Count I or Count IV. As the Court has explained above, T.K. has sufficiently pleaded negligence claims against Defendants without the allegations relating to statutory violations. Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal.”).

2. Timothy Killings has pleaded cognizable medical expense claims against all Defendants.

Just because T.K. has cognizable negligence claims against Defendants does not mean that Timothy Killings, T.K.’s father, also has such claims. To state a [*12] negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him. Allstate, 110 F. Supp. 3d at 862-63. Mr. Killings has failed to meet his burden. The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings. See Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, 385 Ill. Dec. 215, 18 N.E.3d 215, 231 (Ill. App. Ct. 2014) (“The criterion in a duty analysis is whether a plaintiff and a defendant stood in such a relationship to each other that the law imposed an obligation upon the defendant to act for the protection of the plaintiff.”). It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants therefore had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. See Sec. Am. Complaint, ¶¶ 38-39. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

But just because Mr. [*13] Killings has not pleaded cognizable negligence claims against Defendants does not mean that he has pleaded no cognizable claims against them. In Illinois, parents have a cause of action against a tortfeasor who injures their child and causes them to incur medical expenses. Pirrello v. Maryville Acad., Inc., 2014 IL App (1st) 133964, 386 Ill. Dec. 108, 19 N.E.3d 1261, 1264 (Ill. App. Ct. 2014). The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act. Id.; see also 750 Ill. Comp. Stat. 65/15(a)(1) (obligating parents to pay for the “expenses of the family”). T.K. has pleaded cognizable negligence claims against Defendants. Mr. Killings alleges that he has been saddled with bills stemming from T.K.’s medical care, some of which he has paid, and that he will incur additional medical bills in the future as a result of the injuries T.K. suffered on account of Defendants’ negligence. Sec. Am. Complaint, ¶¶ 38-39. Mr. Killings is the father of T.K., a minor, and is required by law to pay for T.K.’s medical expenses, Mr. Killings has adequately pleaded claims against Defendants for the recovery of the amounts paid or to be paid for T.K.’s past and future medical expenses stemming from Defendants’ negligence.

One [*14] final point merits a brief discussion. In the Second Amended Complaint, Mr. Killings alleges that he has suffered, as a result of T.K.’s injuries, “loss of aid, comfort, society, companionship, pleasure, and the family relationship.” Sec. Am. Complaint, ¶ 40. However, in Illinois, a parent may not “recover for loss of the society and companionship of a child who is nonfatally injured.” Vitro v. Mihelcic, 209 Ill. 2d 76, 806 N.E.2d 632, 633, 282 Ill. Dec. 335 (Ill. 2004). Therefore, Mr. Killings has no valid claim for loss of society and companionship in this case.

3. The Court strikes paragraph 27 from Plaintiffs’ Second Amended Complaint.

As an alternative to the dismissal of Count I of the Second Amended Complaint, Defendants Decatur Boys & Girls Club and America Boys & Girls Club ask the Court to strike paragraphs 50 through 55 of the Complaint. Mot. to Dismiss (d/e 32), at 2. Similarly, Defendant Paulin asks the Court, as an alternative to the dismissal of Count IV, to strike paragraphs 76 through 81 of the Second Amended Complaint. Mot. to Dismiss (d/e 33), at 1-2. According to Defendants, the Court should strike these paragraphs because they are ultimately used to claim that Defendants’ alleged statutory violations constitute negligence per se.

Additionally, Defendants [*15] Decatur Boys & Girls Club and America Boys & Girls Club request that the Court strike paragraph 27 from the Second Amended Complaint for being duplicative of paragraph 25 and strike paragraphs 42, 43, 44, 48, 68, 69, and 70 because those paragraphs are legal conclusions. Mot. to Dismiss (d/e 32), at 4. But even assuming that the aforementioned paragraphs are legal conclusions, as opposed to factual allegations, that is no reason to strike them from the Second Amended Complaint. Although Plaintiffs are required to plead facts that indicate they have a plausible, as opposed to a speculative, right to relief, see Iqbal, 556 U.S. at 678, they are not prohibited from also pleading legal conclusions that might help to provide Defendants with notice of the claims brought against them or provide context for the factual allegations. See State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)) (noting that “legal conclusions are an integral part of the federal notice pleading regime” and that Rule 8(b) of the Federal Rules of Civil Procedure requires parties to respond to all allegations contained within a pleading, including legal conclusions). Therefore, the Court strikes only paragraph 27 of the Second Amended Complaint, as it is duplicative of paragraph 25.

B. The Allegations of Plaintiffs’ Second Amended [*16] Complaint Are Insufficient to Render the Doctrine of Res Ipsa Loquitur Applicable Against Decatur Boys & Girls Club and America Boys & Girls Club.

Res ipsa loquitur is a rule of evidence applicable to a negligence claim, not a distinct theory of recovery. Rice v. Burnley, 230 Ill. App. 3d 987, 596 N.E.2d 105, 108, 172 Ill. Dec. 826 (Ill. App. Ct. 1992). Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” Metz v. Cent. Ill. Elec. & Gas Co., 32 Ill. 2d 446, 207 N.E.2d 305, 307 (Ill. 1965). The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Buechel v. United States, 746 F.3d 753, 765 (7th Cir. 2014). Accordingly, res ipsa loquitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.” Britton v. Univ. of Chi. Hosps., 382 Ill. App. 3d 1009, 889 N.E.2d 706, 709, 321 Ill. Dec. 441 (Ill. App. Ct. 2008). Whether the doctrine of res ipsa loquitur applies is a question of law to be determined by the Court. Imig v. Beck, 115 Ill. 2d 18, 503 N.E.2d 324, 329, 104 Ill. Dec. 767 (Ill. 1986).

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.” Avalos-Landeros v. United States, 50 F. Supp. 3d 921, 927 (N.D. Ill. 2014) (citing Heastie v. Roberts, 226 Ill. 2d 515, 877 N.E.2d 1064, 1076, 315 Ill. Dec. 735 (Ill. 2007)). Although, in the past, [*17] a plaintiff had to allege that the “the injury occurred under circumstances indicating that it was not due to any voluntary act or neglect on the part of the plaintiff,” this requirement was removed due to the adoption of comparative fault principles in Illinois. Heastie, 877 N.E.2d at 1076. With respect to the requirement of “exclusive control,” a defendant’s control over the instrumentality “at the time of the alleged negligence is not defeated by lack of control at the time of the injury.” Darrough v. Glendale Heights Cmty. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, 1252-53, 175 Ill. Dec. 790 (Ill. App. Ct. 1992). Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.” Id. at 1253.

T.K. alleges that “a minor child under the care and supervision of a registered, licensed professional child care facility does not ordinarily sustain serious injuries when properly supervised in the absence of negligence.” Sec. Am. Complaint, ¶ 60. Further, T.K. claims that at the time he sustained his injuries, the farm trailer that injured him was under the exclusive control of Decatur Boys & Girls Club and America Boys [*18] & Girls Club. Id. ¶ 61. These allegations are not sufficient to render the doctrine of res ipsa loquitur applicable here. See Twombly, 550 U.S. at 545 (noting that “a formulaic recitation of a cause of action’s elements” will not withstand a Rule 12(b)(6) motion to dismiss). And although the Second Amended Complaint contains numerous factual allegations regarding the incident in which T.K. was injured, those allegations do not indicate a plausible right to relief for T.K. under the doctrine of res ipsa loquitur.

Because the facts pleaded in Plaintiffs’ Second Amended Complaint provide no support for the second prong in the res ipsa loquitur analysis–whether an injury was caused by an object within the defendant’s exclusive control–the Court’s res ipsa loquitur analysis will begin and end with that prong. Even assuming that the incident in which T.K. was injured was one that does not ordinarily occur in the absence of negligence, T.K.’s account of the circumstances surrounding the accident indicate that it was Defendant Paulin, not Decatur Boys & Girls Club or America Boys & Girls Club, who had exclusive control of the farm trailer. According to the Second Amended Complaint, the farm trailer that injured T.K. was owned [*19] by Defendant Paulin and located on Defendant Paulin’s property. Defendant Paulin was the one who pulled the trailer onto a public road with T.K. and several other minor children on board. Defendant Paulin owned the tractor with which the trailer was pulled. Although T.K. claims that Decatur Boys & Girls Club and America Boys & Girls Club were responsible for placing him on the farm trailer, he makes the same allegation with respect to Defendant Paulin. See Sec. Am. Complaint, ¶¶ 22-23. In short, there is nothing in the Second Amended Complaint to support T.K.’s allegation that Decatur Boys & Girls Club and America Boys & Girls Club were in exclusive control of the farm trailer at any time.

Based on this analysis, the Court has determined that the factual allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable. In doing so, the Court again notes that res ipsa loquitur is an evidentiary rule, not a distinct theory of recovery. If facts uncovered through the discovery process sufficiently support the application of res ipsa loquitur against any Defendant, the Court will allow T.K. to rely on the doctrine at the summary judgment [*20] stage and will allow the trier of fact to consider and apply the doctrine as to that Defendant.

C. Count III and Count V Sufficiently Plead Willful and Wanton Misconduct Claims Against the Defendants.

To state a claim under Illinois law for willful and wanton misconduct, a plaintiff must plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.” Kirwan v. Lincolnshire-Riverwoods Fire Protections Dist., 349 Ill. App. 3d 150, 811 N.E.2d 1259, 1263, 285 Ill. Dec. 380 (Ill. App. Ct. 2004) (quoting Adkins v. Sarah Bush Lincoln Health Ctr., 129 Ill. 2d 497, 544 N.E.2d 733, 743, 136 Ill. Dec. 47 (Ill. 1989)). As noted above, T.K. has sufficiently pleaded negligence causes of action against all Defendants. T.K. has incorporated the allegations comprising his negligence claims into his willful and wanton misconduct claims against Defendants. Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants. Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. Kirwan, 811 N.E.2d at 1263. To meet this standard, the defendant “must be conscious of his conduct, [*21] and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.” Id.

In the Second Amended Complaint, T.K. alleges that on July 17, 2015, Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. Sec. Am. Complaint, ¶¶ 22, 65. T.K. further alleges that the trailer was not designed to transport people. Id. ¶ 24. T.K claims that Decatur Boys & Girls Club and America Boys & Girls Club failed to take necessary safety precautions and operated their summer camp recklessly or with gross negligence. Id. ¶¶ 64, 68. According to T.K., the actions and inaction of Decatur Boys & Girls Club and America Boys & Girls Club were “willful, wanton, grossly negligent, careless, [and] reckless” and “showed an utter indifference to or conscious disregard for the safety of [T.K.].” Id. ¶ 70.

T.K. also includes several allegations in Count III about what Decatur Boys & Girls Club and America Boys & Girls Club “knew or should have [*22] known.” Specifically, according to T.K., Decatur Boys & Girls Club and America Boys & Girls Club knew or should have known that the farm trailer was unreasonably dangerous, that additional supervision was required for the 15 to 20 children riding on the farm trailer, and that there was no way for the children to be properly seated on the farm trailer. Id. ¶¶ 66-68. Decatur Boys & Girls Club and America Boys & Girls Club also knew or should have known that placing children on the farm trailer and pulling it with a tractor without proper supervision posed a high probability of serious physical harm to T.K. Id. ¶ 69.

With respect to Defendant Paulin, T.K. alleges that Defendant Paulin placed T.K. on a farm trailer that was not designed or intended to transport people and had no guardrails, seats, or seat belts to prevent people from falling off it. Id. ¶¶ 23, 25-26. Further, T.K. claims that Defendant Paulin had no intention of making sure that T.K. was safe when she placed him on the farm trailer and pulled it onto a public road. Id. ¶ 83. T.K. also claims that Defendant Paulin failed to take necessary safety precautions. Id. ¶ 85. Defendant Paulin’s conduct, according to T.K., was “willful, [*23] wanton, grossly negligent, careless, [and] reckless” and showed a “conscious disregard for the safety of [T.K.].” Id. ¶ 87.

As with Decatur Boys & Girls Club and America Boys & Girls Club, T.K. includes allegations in the Second Amended Complaint regarding what Defendant Paulin “knew or should have known.” Specifically, T.K. alleges that Defendant Paulin knew or should have known that the farm trailer was unreasonably dangerous, that pulling children onto a public road while on the trailer was unreasonably dangerous, and that placing children on the farm trailer and pulling the trailer onto a public roadway without proper supervision posed a high probability of serious physical harm or death. Id. ¶¶ 83-84, 86.

T.K.’s allegations are sufficient to plead willful and wanton misconduct claims against Defendants. The Federal Rules of Civil Procedure require that a pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). A plaintiff need not plead enough facts to show that he is likely to prevail on his claim; rather, he is required only to include enough facts to raise his claim from speculative to plausible. See Iqbal, 556 U.S. at 678. The allegations set forth [*24] above are sufficient to make it plausible that Defendants committed willful and wanton misconduct when they put T.K. on an unsafe farm trailer not designed for transporting people, failed to take necessary safety precautions, and either failed to properly supervise T.K. or pulled the trailer, with T.K. on it, onto a public road. See Worthem v. Gillette Co., 774 F. Supp. 514, 517 (N.D. Ill. 1991) (holding that the plaintiff had sufficiently pleaded willful and wanton misconduct claims where she alleged that “willful and wanton acts or omissions [were] committed or omitted with conscious indifference to existing circumstances and conditions” and went on to “enumerate specific instances of willful and wanton conduct”).

Although T.K.’s “knew or should have known” allegations against Defendants may have been insufficient to meet his pleading burden with respect to willful and wanton misconduct claims, see id. (admitting that the court “might agree” with the defendant’s arguments that “knew or should have known” allegations are mere negligence allegations insufficient to merit punitive damages), T.K. does not rely solely on these allegations in his willful and wanton misconduct claims against Defendants. Indeed, as the Court has noted above, Count III [*25] and Count V of the Second Amended Complaint, which incorporate the allegations from the counts preceding them, contain specific factual allegations regarding the actions Defendants took. Further, the Court does not view T.K.’s “knew or should have known” allegations as completely irrelevant to a willful and wanton misconduct claim under Illinois law, which holds that willful and wanton misconduct can be found where there is a failure to discover a danger through carelessness when it could have been discovered through the exercise of ordinary care. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 641 N.E.2d 402, 406, 204 Ill. Dec. 178 (Ill. 1994).

The fact that T.K. bases his willful and wanton claims on the same facts as his negligence claims is of no concern. Under Illinois law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Bastian v. TPI Corp., 663 F. Supp. 474, 476 (N.D. Ill. 1987) (citing Smith v. Seiber, 127 Ill. App. 3d 950, 469 N.E.2d 231, 235, 82 Ill. Dec. 697 (Ill. App. Ct. 1984). Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.” Bastian, 663 F. Supp. at 476 (citing O’Brien v. Twp. High Sch. Dist. 214, 83 Ill. 2d 462, 415 N.E.2d 1015, 1018, 47 Ill. Dec. 702 (Ill. 1980).

V. CONCLUSION

For the foregoing reasons, Defendants Boys & Girls Club of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion [*26] to Strike Portions of Count I of the Second Amended Complaint (d/e 32) is GRANTED IN PART and DENIED IN PART. Count II of Plaintiffs’ Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. Further, the Court STRIKES paragraph 27 of Plaintiffs’ Second Amended Complaint as duplicative. Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33) is DENIED. Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, Defendants have 14 days from the date they receive a copy of this Order to file an answer to Plaintiffs’ Second Amended Complaint.

ENTER: June 6, 2017.

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE


This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).

A negligence per se claim can be stopped if the plaintiff assumed the risk under California law. This is probably a rare look at negligence per se in the fifty states.

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

State: California, Court of Appeal of California, Second Appellate District, Division Five

Plaintiff: Christian Moser

Defendant: Joanne Ratinoff

Plaintiff Claims: negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with the defendant.

Defendant Defenses: Primary Assumption of the Risk and Secondary Assumption of the Risk

Holding: for the defendant

Year: 2003

The plaintiff and the defendant participated in an “organized long-distance bicycle ride on public highways involving hundreds of participants.” The ride, the Death Valley Double Century was a 200-mile ride (double century). During the ride, the defendant swerved from the right side along the curb to the left into the plaintiff causing a collision. The plaintiff suffered injuries.

Prior to the ride, both participants signed releases. The releases explained several of the risks of the activity, but did not protect participants from claims of other participants. “The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”

The case was dismissed at the trial court level because collisions are an inherent risk of cycling. The plaintiff appealed.

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

The court first looked at the requirements for the defendant to prove assumption of the risk by motion.

When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.

Under California law, a participant is generally responsible for their own injuries caused by the ordinary care or skill of another.

The court then looked at whether the plaintiff expressly assumed the risk of his injuries.

When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.

Express assumption of the risk is usually considered a written assumption of the risk. The court set out the definitions that must be met to prove express assumption of the risk in California.

The doctrine of express assumption of the risk is founded on express agreement. ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement. . . .’ That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world.

The court found that express assumption of the risk could not be applied to this case, as the defendants failed to prove that she was entitled to use the release signed by both parties before entering the race. However, the court found there could still be some value to the defendant from the release. “A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk.”

The court then looked at implied assumption of the risk, also known as secondary assumption of the risk, and whether it could be proved in this case. Under California law, implied assumption of the risk “embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”

Implied assumption of the risk was defined by the California Supreme Court as:

…a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.”

The reasoning for this is to impose a duty would place a chill on most sporting activities so that participants would not vigorously compete.

The test for implied assumption of the risk is not whether the defendant must protect the plaintiff from a known risk, but the nature of the activity.

The court then looked to determine if prior decisions had applied the defense of implied assumption of the risk to “organized non-competitive recreational bicycle riding.” However, the court did find that the risks and other factors made this type of cycling the same as other sports that implied assumption of the risk had been applied too by other California courts.

Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court said upon “[c]ompiling all of the distinguishing factors” from the cases,  an activity is a “sport” to which the primary assumption of risk doctrine applies if that activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.

The court also found that although bicycles are vehicles under California law, this type of activity was not the same as driving a car. This was done for enjoyment and physical activity.

However, the assumption of risk is not a blanket defense to all claims.

The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’

Defendants have no legal duty to eliminate the risk or protect a plaintiff to the risks inherent in a sport. The next issue becomes what then are the inherent risks of a sport.

Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence.

The court then gave examples of non-inherent risks and inherent risks in sports as determined by other California courts.

Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.

The court then found that two riders riding side by side, a collision between the two, or one rider riding into the other was an inherent risk of cycling.

The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity.

The defendant in this case the court determined was negligent, but was not wanton or reckless or conduct so totally outside of the range of ordinary activity involved in cycling.

The final issue the court looked at is whether the claim of negligence per se is barred by express or implied assumption of the risk. Court looked at precedent, prior case law, to determine the issue and found none. There were several California Supreme Court decisions that looked at the issue but did not rule on it. On the court today, this court determined from those prior decisions that a majority, four, of the justices on the court would argue that a negligence per se claim is blocked by express assumption of the risk. “Nevertheless, a majority of the present California Supreme courts have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.”

The court upheld the ruling of the trial court, and the case was dismissed.

So Now What?

First do not assume that assumption of the risk, in any form can bar a negligence per se claim. There are several states were this would not be true.

Second, the court’s analysis of the facts and the law are easily understood and supported by the case law quoted. This is a great case to understand the two types of assumption of the risk allowed in California.

Finally, in California of two or more people riding together is that one of those people assumes the inherent risk of colliding with the other.

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

 


Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Negligence per se is an elusive legal issue that generally prevents a release to be effective as in this case. Understanding the issue for your state is important.

Citation Knarr v. Chapman School of Seamanship, 2000 U.S. Dist. LEXIS 5351

State: Pennsylvania, United States District Court for the eastern District of Pennsylvania

Plaintiff: Jean Knarr & Lester Knarr

Defendant: Chapman School of Seamanship

Plaintiff Claims: negligence per se

Defendant Defenses: release and plaintiff failed to plead enough facts to establish a negligence per se case

Holding: for the plaintiff

Year: 2000

Negligence per se cases are arising with more frequency. They are a way the plaintiff can beat the release in recreational activities. In most states, a successful negligence per se claim is not dismissed because of a release, and the plaintiff can go to trial. On top of that, Juries take a dim view of a defendant who did not follow the law or rules for his industry.

In this case, the plaintiff (wife) enrolled in a seamanship school with the defendant in Florida. (Thus the reason why the Federal District Court was hearing the case.)

 

The defendant filed a motion for summary judgment based on the release; the plaintiff had signed and argued the negligence per se claims of the plaintiff should be dismissed because the plaintiff failed to present evidence that the defendant had violated a rule or statute. This was the second motion for summary judgement; the first was over the issues of the release and the simple or ordinary negligence claims.

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

Florida’s law allows a release to stop a negligence claim. (See Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.; Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.; Release for bicycle tour wins on appeal but barely; Electronic release upheld in Florida federal court for surfing on a cruise ship, Florida statute that allows a parent to release a minor’s right to sue)

However, Florida does not allow a release to stop a negligence per se claim.

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

Under Florida’s law, negligence per se is defined as:

According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.”

Negligence per se under Florida’s law was defined broadly: Florida’s state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. Negligence per se was applied to violation of Florida Department of Health and Rehabilitative Service Rules, violations of administrative regulations, and FAA regulations. (Compare this to the limited application of negligence per se in a Colorado rafting case in 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.)

The issue here was whether any US Coast Guard regulation applied to this defendant and the ship the injury occurred upon and whether the regulation applied to the ladder, specifically.

Here the court found that the boat was of the size the regulation was applied to. The court also found the boat was “for hire” because the plaintiff had paid to be on the boat to take the seamanship course. The final issue was whether the regulation, which was a standard created by ANSI, (American National Standards Institute) applied in this case.

The court found the regulation was specifically adopted for situations, specifically like this:

One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic.

The reference was to the sinking of the Titanic.

The final issue was whether the claims of the plaintiff, as plead, fit the requirement for negligence per se, an injury the regulations were designed to prevent. Here again, the court found the pleadings were not specific, but outlined enough of the issues to meet the definitions of a ladder that was dangerous. This was based more on the failure of the defendant to show the ladder met the ANSI and subsequent US Coast Guard regulations.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some of which will, no doubt, be the subject of expert opinions.

Consequently, the case was allowed to proceed.

So Now What?

If you were to speculate, this boat was probably a sail boat created for some owner. It has been converted to a vessel for hire when the classes were offered by the owner. As such, no standard applied to the vessel as a pleasure vessel, when it was being built; however, now that it fit the regulations, it had to meet the regulations.

Another scenario could be the vessel was old enough that it was built before the regulations were in effect.

Both scenarios can be found in outdoor programs daily.  Land is purchased for a recreation program with buildings already on the land. No emergency exit from the second floor, no fire alarms, all could lead to losing a law suit.

A release is a great line of defense against claims, but fraud, gross negligence and as seen here, negligence per se will not be stopped by a release. Consequently, risk management and education is a never-ending requirement for a recreation provider to be on the lookout for.

For other articles, looking at Negligence per se issues see:

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability  http://rec-law.us/wEIvAW

10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.            http://rec-law.us/1njzlhf

If you really are bad, a judge will figure out a way to void your release         http://rec-law.us/Xyu8CZ

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

Moser v. Ratinoff, 105 Cal. App. 4th 1211; 130 Cal. Rptr. 2d 198; 2003 Cal. App. LEXIS 138; 2003 Cal. Daily Op. Service 987; 2003 Daily Journal DAR 1320

Christian Moser, Plaintiff and Appellant, v. Joanne Ratinoff, Defendant and Respondent.

No. B153258.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE

January 31, 2003, Decided

January 31, 2003, Filed

CALIFORNIA OFFICIAL REPORTS SUMMARY A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)

A participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. (Superior Court of Los Angeles County, No. BC225431, Gregory C. O’Brien, Judge.)

The Court of Appeal affirmed. It held that a waiver, signed by plaintiff prior to participating in the ride, that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants, did not inure to the benefit of defendant. However, the court held, the primary assumption of the risk doctrine was applicable. Organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. The court also held that the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the doctrine. (Opinion by Mosk, J., with Turner, P.J., and Grignon, J., concurring.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1) Summary Judgment § 26–Appellate Review–Scope of Review. — –A grant of summary judgment is reviewed de novo. The appellate court makes an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. Under Code Civ. Proc., § 437c, subd. (p)(2), a defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action.

(2) Negligence § 98–Actions–Trial and Judgment–Questions of Law and Fact–Assumption of Risk–Summary Judgment. — –When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains. Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.

(3) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk. — –A defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk.

(4) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect of Express Waiver. — –A participant in an organized, long-distance bicycle ride on public highways did not assume the risk of negligence by a coparticipant in the ride by signing, prior to taking part in the ride, a waiver that released the event holders, sponsors, and organizers and acknowledged the risks of the ride, including those caused by other participants. An express assumption of risk agreement does not inure to the benefit of those not parties to that agreement.

(5) Negligence § 37–Exercise of Care by Particular persons–Exercise of Care by Plaintiff–Assumption of Risk–Effect. — –The doctrine of primary assumption of the risk embodies a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk. Where the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.

(6) Negligence § 37–Exercise of Care by Particular Persons-Exercise of Care by Plaintiff–Assumption of Risk–Competitive Sports. — –Under the doctrine of primary assumption of risk, a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. Whether the doctrine applies depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of the doctrine is to avoid imposing a duty that might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.

(7) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Analytical Frameword. — –In assumption of the risk analysis, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.

(8a) (8b) Negligence § 38–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Orgainzed Bicycle Ride. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the trial court properly granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. Such organized, long-distance bicycle rides are an activity to which the doctrine applies, since they are engaged in for enjoyment or thrill, require physical exertion and skill, and involve a challenge containing a risk of injury. Further, the risk that one cyclist will swerve into another is inherent in such rides. Defendant’s movements may have been negligent, but they were not intentional, wanton, or reckless, nor were they totally outside the range of ordinary activity involved in the sport. Thus, the accident was within the risks assumed by plaintiff and defendant when they chose to participate.

[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1090C.]

(9) Negligence § 37–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Risks Not Assumed. — –Even if an activity is one to which the primary assumption of the risk doctrine applies, there are certain risks that are deemed not assumed and certain injury-causing actions that are not considered assumed risks of the activity. An activity that is not inherent in the sport is not subject to the doctrine. Drinking alcoholic beverages, for example, is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, and proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.

(10) Negligence § 40–Exercise of Care by Particular Persons–Exercise of Care by Plaintiff–Assumption of Risk–Violation of Safety Law–Vehicle Code Provisions Applicable to Bicycle Riding. — –In an action by a participant in an organized, long-distance bicycle ride on public highways, in which plaintiff alleged that defendant, a coparticipant, was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries, the fact that defendant’s movements may have violated various Vehicle Code sections did not preclude application of the primary assumption of the risk doctrine. The doctrine is not displaced by a violation of a statute that does not evince legislative intent to eliminate the assumption of the risk defense.

COUNSEL: Law Offices of Michael L. Oran, Michael L. Oran, Kathy B. Seuthe; Law Offices of Garry S. Malin and Garry S. Malin for Plaintiff and Appellant.

Barry Bartholomew & Associates, Michael A. Nork and Kathryn Albarian for Defendant and Respondent.

JUDGES: (Opinion by Mosk, J., with Turner, P. J., and Grignon, J., concurring.)

OPINION BY: MOSK

OPINION

[*1214] [**200] MOSK, J.

Plaintiff and appellant Christian Moser (Moser) and defendant and respondent Joanne Ratinoff (Ratinoff) participated in an organized, long-distance bicycle ride on public highways involving hundreds of participants. Moser signed an “Accident Waiver and Release of Liability” form for the benefit of the event holders, sponsors and organizers in which Moser expressly assumed the risk of various injuries, including those caused by other participants. During the ride, Ratinoff swerved into Moser, causing him to crash and sustain injuries. Moser sued Ratinoff for general negligence. Ratinoff filed a motion for summary judgment on the ground that a collision between bicycle riders was an inherent risk in the ride, and [*1215] therefore the action was barred by [***2] the primary assumption of risk doctrine enunciated in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight). Moser opposed the motion on the grounds that the primary assumption of risk doctrine did not apply because the collision was not an inherent risk of the activity and because Ratinoff’s violation of provisions of the California Vehicle Code precluded application of the doctrine. The trial court granted summary judgment in Ratinoff’s favor. We hold that the primary assumption of risk doctrine applies to the organized bicycle ride, and that a violation of a statute does not displace that doctrine. Accordingly, we affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND 1

1 We state the facts in accordance with the standard of review stated post.

Moser and Ratinoff collide during a bicycle ride

In February 1999, Moser registered to participate in the Death Valley Double Century bicycle ride, a 200-mile, noncompetitive bicycle ride on public [***3] highways. Hugh Murphy Productions organized the ride in which approximately 600 bicycle riders participated. 2 Before participating in the ride, Moser signed a document provided by the organizers entitled “Accident Waiver and Release of Liability” (the release), releasing the organizers and stating, “I acknowledge that this athletic event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. The risks include, but are not limited to those caused by . . . actions of other people including but not limited to participants. . . . I hereby assume all of the risks of participating &/or volunteering in this event.” The organizer required riders to wear helmets and to have bicycle lights.

2 One of the forms refers to the promoter as “Badwater Adventure Sports.”

The ride had no designated start time. On the day of the accident, Moser and his friend, David Warshawsky (Warshawsky), began the ride at 4:00 a.m. At a rest stop, [***4] Moser and Warshawsky encountered Ratinoff, another participant in the ride. The three cyclists left the rest stop together, with Warshawsky and Ratinoff riding side-by-side and Moser riding behind them. At some point, they began riding single file.

Moser was cycling close to the right-hand side of the road. Ratinoff said that she came from behind Moser’s left side and passed him or rode at his left side. Moser said Ratinoff came up from behind him and rode next to him on his left side. While she was riding on Moser’s left side, an Inyo County Sheriff’s Deputy pulled his car approximately four or five car lengths behind [*1216] them and stayed there for several minutes. Ratinoff turned to look at the [**201] police car, and she then told Moser, “I have to come over.” According to Ratinoff, a “split second” later, she moved to her right toward Moser.

As Ratinoff moved to her right, she made contact with Moser, who nevertheless was able to retain control of his bicycle. Within seconds, Ratinoff again collided with Moser, causing him to fall off his bike and to sustain injuries. At the time of the collision, Ratinoff and Moser were riding at an approximate speed of 15 to 20 miles per hour.

Moser [***5] sues Ratinoff, and Ratinoff files a motion for summary judgment

Moser commenced an action against Ratinoff and in his complaint alleged that Ratinoff “negligently, recklessly and carelessly operated, owned, controlled and maintained” her bicycle “so as to collide with” Moser’s bicycle. Ratinoff alleged assumption of risk as an affirmative defense.

Ratinoff filed a motion for summary judgment in which she contended that she was not liable to Moser because under the primary assumption of risk doctrine she did not breach a duty of care owed to him. Moser, in opposition to the motion, argued that the primary assumption of risk doctrine does not apply to noncompetitive bicycle riding and that Ratinoff violated Vehicle Code sections 21202, subdivision (a) (operating a bicycle as close “as practicable to the right-hand curb or edge of the roadway”), and 22107 (moving a vehicle to the left or right “with reasonable safety”), thereby giving rise to a presumption of negligence and rendering the primary assumption of risk doctrine inapplicable.

The trial court granted the summary judgment motion and entered judgment against Moser. The trial court denied Moser’s motion [***6] for new trial. Moser does not raise the denial of his new trial motion as a basis for his appeal.

STANDARD OF REVIEW

(1) [HN1] We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal. Rptr. 2d 356].) We make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal. Rptr. 2d 35].) A defendant moving for summary judgment meets its burden of showing that [*1217] there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal. Rptr. 2d 841, 24 P.3d 493].) [***7] (2))

[HN2] “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395 [36 Cal. Rptr. 2d 418].) Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court. (Knight, supra, 3 Cal.4th at p. 313; Record v. Reason (1999) 73 Cal.App.4th 472, 479 [86 Cal. Rptr. 2d 547].) [**202]

DISCUSSION

[HN3] A person is generally responsible “for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” (Civ. Code, § 1714.(3)) But a defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk. (Knight, supra, 3 Cal.4th at pp. 308, fn. 4, 309-321.)

I. Express assumption of risk

Before reaching the issue of implied assumption of risk, we must determine if Moser expressly assumed the risk of a collision based [***8] on the release he signed. [HN4] An express assumption of risk is a complete defense to a negligence claim. (Knight, supra, 3 Cal.4th at p. 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 [59 Cal. Rptr. 2d 813]; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012 [54 Cal. Rptr. 2d 330].) Moser released the “event holders, sponsors and organizers,” and also acknowledged the risks of the ride, including those caused by other participants. The document does not purport to be a release of anyone other than the “event holders, sponsors and organizers.”

In Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22 Cal. Rptr. 2d 781] (Westlye), the plaintiff, who was injured skiing, filed an action against the ski shop from which he rented allegedly defective ski [*1218] equipment and the distributors of the equipment. He had signed a written agreement with the ski shop in which he accepted the equipment for use “as is”; agreed that he understood that there ” ‘are no guarantee[s] for the user’s safety’ “; acknowledged that there is ” ‘an inherent risk of injury in the sport of skiing, and the use of any ski equipment, and expressly assume[d] the risks for any [***9] damages to any persons or property resulting from the use of this equipment’ “; and released the ski shop from any liability. (Id. at p. 1725.)

The distributors of the equipment contended that “as a matter of law an express assumption of risk is good as against the whole world” and therefore precluded any liability against the distributors. (Westlye, supra, 17 Cal.App.4th at p. 1729.) In holding that the plaintiff had not released the distributors of the equipment, the court said, “defendants fail to submit, and we have not discovered, any authority for [the distributors’] proposition. The doctrine of express assumption of the risk is founded on express agreement. [Citations.] ‘Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk . . ., cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.’ [Citations.] Such an agreement, if valid, ‘operates to relieve the defendant of a legal duty to the plaintiff with respect [***10] to the risks encompassed by the agreement. . . .’ [Citation.] That express assumption of risk is founded on an express agreement undercuts the distributor defendants’ claim that it is good as against the world. [P] . . . [P] We conclude the distributor defendants have failed to establish that they are entitled to the benefit of the written agreement between plaintiff and [the ski shop].” (Id. at pp. 1729-1730.)(4))

Westlye, supra, 17 Cal.App.4th 1715, states the existing law that [HN5] an express assumption of risk agreement does not inure to the benefit of those not parties to that agreement. Accordingly, [**203] Moser did not expressly assume the risk of negligence by a coparticipant in the ride. A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk. (See discussion post.)

II. Implied assumption of risk

The subject of implied assumption of risk has generated much judicial attention. Its modern history began when California eliminated contributory negligence and adopted a comparative negligence system in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226].. [***11] [*1219] Thereafter, the California Supreme Court–in two companion cases, Knight, supra, 3 Cal.4th 296, and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724] (Ford)–considered the “proper application of the ‘assumption of risk’ doctrine in light of [the] court’s adoption of comparative fault principles.” (Knight, supra, 3 Cal.4th at p. 300.) (5))

In Knight, supra, 3 Cal.4th 296, the Supreme Court, in a plurality opinion, set forth the doctrine of primary assumption of the risk. That doctrine, which is now established as “the controlling law” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067 [68 Cal. Rptr. 2d 859, 946 P.2d 817] (Cheong)), “embodies a legal conclusion that [HN6] there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk. . . .” (Knight, supra, 3 Cal.4th at p. 308.) When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability. (Ibid.) 3

3 But see the Restatement Third of Torts, section 2 and comment i, pages 19, 25 (“Most courts have abandoned implied assumptions of risk as an absolute bar to a plaintiff’s recovery”).

[***12] (6) In Knight, supra, 3 Cal.4th 296, the court concluded that a defendant owes no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport (in that case, an informal touch football game) voluntarily played by the plaintiff, absent some reckless or intentional misconduct, but does owe a duty not to increase the risk of harm above that inherent in the sport. The court said that “[i]n some situations . . . the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” (Id. at p. 316.) In Ford, the court applied the rule to noncompetitive, non-team-sporting activities–in that case waterskiing. (Ford, supra, 3 Cal.4th 339.)

[HN7] Whether the primary assumption of risk doctrine applies–which issue is, as noted above, a question of law–“depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity.” (Knight, supra, 3 Cal.4th at p. 313.) “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated [***13] activity and thereby alter its fundamental nature.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253 [38 Cal. Rptr. 2d 65].)

III. Activity subject to primary assumption of risk

(7) In Knight, supra, 3 Cal.4th at page 309, the court said that “whether the defendant owed a legal duty to protect the plaintiff from a [**204] particular risk [*1220] of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” The court suggested that generally, the primary assumption of risk doctrine applies in a “sports setting.” (Id. at pp. 309-310, fn. 5.) (8a)) Thus, the issue in the instant case is whether an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies.

The court in Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635 [53 Cal. Rptr. 2d 657], stated, “Knight may require a court to determine a question of duty in sports settings while factually uninformed of how the sport is [***14] played and the precise nature of its inherent risks.” To make a decision concerning duty we must know the nature of a particular sport, and even if we do have such knowledge, we still may have no idea how imposing liability will affect or “chill” the sport–which is a major factor in making a determination of duty. (See American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [93 Cal. Rptr. 2d 683] [court said “expert opinion may inform the court on these questions”].) Nevertheless, under the current state of the law established by Knight, we must somehow make such a determination.

As guidance, there are cases in which courts have determined whether or not the primary assumption of risk applies to a particular activity. There are a number of cases involving sports activities in which the court found a primary assumption of risk. (Cheong, supra, 16 Cal.4th 1063 [snow skiing]; Ford, supra, 3 Cal.4th 339 [waterskiing]; Knight, supra, 3 Cal.4th 296 [touch football]; Sanchez v. Hillerich & Bradsby (2002) 104 Cal.App.4th 703 [128 Cal. Rptr. 2d 529] [collegiate baseball]; Distefano v. Forester (2001) 85 Cal.App.4th 1249 [102 Cal. Rptr. 2d 813] [***15] (Distefano) [off-roading]; Calhoon v. Lewis (2000) 81 Cal.App.4th 108 [96 Cal. Rptr. 2d 394] [skateboarding]; American Golf Corp. v. Superior Court, supra, 79 Cal.App.4th 30 [golf]; Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428 [89 Cal. Rptr. 2d 920] [lifeguard training]; Record v. Reason, supra, 73 Cal.App.4th 472 [tubing behind a motorboat]; Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939 [80 Cal. Rptr. 2d 638] [wrestling]; Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal. Rptr. 2d 801] [gymnastics stunt during cheerleading]; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47 [72 Cal. Rptr. 2d 337] [little league baseball]; Domenghini v. Evans (1998) 61 Cal.App.4th 118 [70 Cal. Rptr. 2d 917] [cattle roundup]; Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551 [68 Cal. Rptr. 2d 58] [sport fishing]; Staten v. Superior Court, supra, 45 Cal.App.4th 1628 [ice skating]; [*1221] Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430 [52 Cal. Rptr. 2d 812] [football practice drill]; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525 [50 Cal. Rptr. 2d 671] [***16] [judo]; Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040 [48 Cal. Rptr. 2d 922] [rock climbing]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th 248 [river rafting]; O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188 [35 Cal. Rptr. 2d 467] [snow skiing]; Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670] [sailing].) In some other recreational activities, [**205] courts have held that there was no primary assumption of risk. (Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217] [boating passenger]; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322 [21 Cal. Rptr. 2d 178] [recreational dancing].)

We have found no case that considers primary assumption of risk in connection with organized, noncompetitive, recreational bicycle riding. Nevertheless, this sport appears to fall within those activities to which these cases apply the assumption of risk doctrine. As the court in Record v. Reason, supra, 73 Cal.App.4th at page 482, said upon “[c]ompiling all of the distinguishing factors” from the cases, [HN8] an activity is a “sport” to which the primary assumption of risk doctrine applies if that [***17] activity “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” That delineation is a useful one and covers the bicycle ride here.

It is true that bicycle riding is a means of transportation–as is automobile driving. Normal automobile driving, which obviously is not an activity covered by the assumption of risk doctrine, requires skill, can be done for enjoyment, and entails risks of injury. But [HN9] organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. 4 Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge. Moser acknowledged in the release he signed that the activity is “an athletic event that is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss.” In view of these considerations, the organized, long-distance, group bicycle ride qualifies [***18] as a “sport” for purposes of the application of the primary assumption of risk doctrine.

4 We express no opinion as to such other forms of recreational bicycle riding.

IV. Inherent risk

(9) [HN10] Even if the activity is one to which the primary assumption of risk applies, there are certain risks that are deemed not assumed, and certain [*1222] injury-causing actions that are not considered assumed risks of the activity. The primary assumption of risk rule “does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’ ([Knight, supra,] 3 Cal.4th at pp. 315-316, italics added.) Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood [***19] of injury above that which is inherent. (Id. at p. 315.)” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827 [89 Cal. Rptr. 2d 519].) Conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1394.) A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so [**206] reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence. (Knight, supra, 3 Cal.4th at pp. 320-321.)

[HN11] Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. (Freeman v. Hale, supra, 30 Cal.App.4th at p. 1388.) On the other hand, in various sports, going too fast, [***20] making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. (See Cheong, supra, 16 Cal.4th 1063; Distefano, supra, 85 Cal. App. 4th 1249; Record v. Reason, supra, 73 Cal.App.4th 472.)(8b))

The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride. 5 The release Moser signed warns of the risk of accidents caused by the participants, thus indicating that such accidents are an inherent risk of the activity. If liability attached to entanglements and collisions among 600 bicycle riders, the recreational sport of an organized bicycle ride likely would be adversely affected.

5 Compare Mark v. Moser (Ind. Ct.App. 2001) 746 N.E.2d 410 (inherent risk in a competitive cycling race is that a competitor may attempt to cut in front of a coparticipant to advance position).

[***21] Ratinoff’s movements toward the right side of the road that caused her to collide with Moser may have been negligent, but they were not intentional, [*1223] wanton or reckless or conduct “totally outside the range of ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at pp. 320-321.) Therefore, the accident at issue in this case is within the assumed risks of the organized bicycle ride in which Moser and Ratinoff were engaged. 6

6 There are traffic-related risks that might not be considered inherent in the activity involved here, such as those involving automobile negligence. (See Story v. Howes (N.Y. App. Div. 1973) 41 A.D.2d 925 [344 N.Y.S.2d 10] [“mere riding of a bicycle does not mean the assumption of risk by the rider that he may be hit by a car”]; Bell v. Chawkins (Tenn. Ct.App. 1970) 62 Tenn. App. 213 [460 S.W.2d 850] [bicyclist did not assume risk dog would bite her].)

V. Effect of statute

Moser asserts that the primary [***22] assumption of risk doctrine does not bar a claim when, as here, Ratinoff has violated statutes.

A. Pleading requirement

Moser’s failure to allege in his complaint that defendant’s conduct violated any statutory duties owed to plaintiff would, under Distefano, supra, 85 Cal. App. 4th at page 1266, procedurally bar plaintiff from raising the effect of a statutory violation in opposing a motion for summary judgment. Although this holding in Distefano appears inconsistent with long-standing authority that a plaintiff’s allegations of negligence include statutory violations that constitute negligence per se (Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 680 [255 P.2d 802]; Karl v. C. A. Reed Lumber Co. (1969) 275 Cal. App. 2d 358, 361-362 [79 Cal. Rptr. 852]), we need not determine this procedural issue because of our conclusion that the statutory violations do not, under present [**207] law, preclude the assumption of risk doctrine.

B. Statutory violations do not displace the Knight rule

(10) Moser contends that defendant’s violations of various Vehicle Code sections constitute negligence per se, and thus preclude the application [***23] of the primary assumption of risk doctrine. The California Supreme Court has addressed this issue in two cases–Ford, supra, 3 Cal.4th 339, and Cheong, supra, 16 Cal.4th 1063–and has produced a number of opinions, leading one court to say “there appears to be no clear consensus on the high court about this issue.” (Campbell v. Derylo, supra, 75 Cal.App.4th at p. 829, fn. 3.) Nevertheless, a majority of the present California Supreme Court have expressed the view that a violation of a statute such as involved here does not displace the primary assumption of risk doctrine.

[*1224] The lead opinion in Ford, supra, 3 Cal. 4th 339, which case involved a waterskiing accident, dealt with whether Harbors and Navigation Code section 658, subdivision (d), 7 coupled with the negligence per se doctrine (as codified in Evid. Code, § 669), 8 established a rebuttable presumption that the defendant breached his duty of care to the plaintiff. That opinion concluded that the violation of Harbors and Navigation Code section 658 was inapplicable because the plaintiff [***24] did not fall within the statute’s protected class. (Id. 3 Cal.4th at p. 350.) Three of the justices found that the plaintiff was within the class of persons Harbors and Navigation Code section 658 was intended to protect, and therefore, under Evidence Code section 669, the defendant violated a legal duty of care to the plaintiff. (Id. at pp. 364-369 (conc. & dis. opn. of George, J.); id. at p. 369 (dis. opn. of Mosk, J.).) 9 Three other justices who had disagreed with the Knight plurality opinion and would have “adhere[d] to the traditional consent approach” to assumption of risk (id. at p. 351, fn. 1 (conc. opn. of Kennard, J.)), stated that the statute is not “the type of safety enactment that would preclude defendant . . . from asserting assumption of risk as a defense barring plaintiff . . . from recovering damages in his negligence action.” (Id. at p. 363 (conc. opn. of Kennard, J.).)

7 Harbors and Navigation Code section 658 provides that no person shall operate a vessel so as to cause, among other things, water skis to collide with any object or person.

[***25]

8 Evidence Code section 669, subdivision (a), provides: “The failure of a person to exercise due care is presumed if: [P] (1) He violated a statute, ordinance, or regulation of a public entity; [P] (2) The violation proximately caused death or injury to person or property; [P] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [P] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (See also Vesely v. Sager (1971) 5 Cal.3d 153, 164-165 [95 Cal. Rptr. 623, 486 P.2d 151].)

9 “Justice Arabian’s [lead] opinion in Ford implicitly assumed, and the opinions of Justice George, joined by Chief Justice Lucas, and Justice Mosk expressly concluded, that if the four elements of section 669(a) were satisfied, that statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Cheong, supra, 16 Cal.4th at p. 1071.)

[***26] In Cheong, supra, 16 Cal.4th 1063, two friends were skiing together and collided, resulting [**208] in litigation. The trial court granted summary judgment in the defendant’s favor on the ground that a collision is an inherent risk of downhill skiing. On appeal, the plaintiff argued that the defendant’s violation of a county ordinance delineating the duties of skiers resulted in liability under Evidence Code section 669 and foreclosed the application of the primary assumption of risk doctrine. The ordinance expressly provided that a skier assumes the “inherent risks” of skiing, including the risk of collision with other skiers. (Id. at pp. 1069-1070.) The majority held that the ordinance did not create any duty other than that available under common law. The court said that “a number of the justices who have signed this [*1225] majority opinion” in Cheong questioned the conclusion of four justices in Ford that if the elements of Evidence Code section 669 were satisfied, a “statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk.” (Id. at p. 1071.) [***27] The court added that the point need not be resolved because the elements of Evidence Code section 669 had not been met–the plaintiff had “not demonstrated that he is one of the class of persons the ordinance was intended to protect.” (Ibid.) The court therefore affirmed the grant of summary judgment.

A concurring opinion, joined by two justices, expressed the view that “[t]he Knight standard of primary assumption of risk still applies even if the violation of an ordinance or statute, combined with Evidence Code section 669, creates a presumption of negligence.” (Cheong, supra, 16 Cal.4th at p. 1079 (conc. opn. of Chin, J., 10 joined by Baxter, J. and Brown, J.).) A fourth justice stated that statutory obligation along with Evidence Code section 669 did not impose a duty of care when Knight eliminated a sports participant’s duty of care. (Id. at p. 1074 (conc. opn. of Kennard, J.).) Three justices took a contrary view, with one stating that the violation of a statute displaces the “no-duty rule of Knight” (id. at p. 1073 & fn. 1 (conc. opn. of [***28] Mosk, J.)) and the others stating that Evidence Code section 669 “may transform an appropriate statute into a legal duty of due care upon the defendant.” (Id. at p. 1077 (conc. opn. of Werdegar, J., joined by George, C. J.).)

10 Justice Chin also authored the majority opinion.

The Supreme Court has not conclusively determined whether or not a violation of law can displace the primary assumption of risk doctrine. Nevertheless, four justices presently sitting on the California Supreme Court 11 –a majority–expressed the view that Evidence Code section 669 does not itself override Knight, but rather that one must ascertain whether the violated statute was intended to do so. Only two justices now on the court 12 have concluded that the violation of a safety statute or ordinance designed to protect persons in the position of a plaintiff precludes the application of the implied assumption of risk doctrine.

11 Justices Baxter, Kennard, Chin and Brown.

[***29]

12 Chief Justice George and Justice Werdegar.

The appellate court in Distefano, supra, 85 Cal.App.4th 1249, addressed this question. In that case, two men, one on a motorcycle and another in a dune buggy, were “off-roading.” After [**209] coming up opposite sides of a blind hill, they collided. Plaintiff contended that the Knight rule did not bar his action because defendant owed him statutory duties under Vehicle Code sections 38305 (proscribing driving off-road vehicles at an unreasonable or [*1226] imprudent speed) and 38316 (proscribing driving off-road vehicles with a willful and wanton disregard for the safety of other persons or property). (Id at p. 1265.)

Although the court held that a claim based on a violation of a statute was barred for procedural reasons, the court proceeded to address the merits of the contention that the Vehicle Code, along with Evidence Code section 669, imposed a tort duty that rendered the primary assumption of risk doctrine unavailable. (Distefano, supra, 85 Cal.App.4th at pp. 1266-1267.) [***30] The court stated that Vehicle Code sections 38305 and 38316, which provisions were enacted before the Supreme Court’s decision in Knight, did not evince any legislative intent to supersede or modify an assumption of risk doctrine later declared by Knight. (Distefano, at p. 1273.) The court therefore concluded that the statutory provisions “do not abrogate the Knight primary assumption of the risk doctrine, and thus do not impose on participants in the sport of off-roading a higher or different duty in tort than is established under Knight.” (Id. at p. 1274.)

Because a majority of the current Supreme Court justices have expressed the view that [HN12] a violation of a statute that indicates no legislative intent to eliminate the assumption of risk defense does not displace the primary assumption of risk doctrine, and because there are no cases inconsistent with that view, we adopt the Distefano court’s conclusion. (Distefano, supra, 85 Cal.App.4th 1249.) Although the facts show that Ratinoff violated provisions of the Vehicle Code designed to protect persons using public roads, based on our conclusion [***31] as to the present state of the law, such violations do not nullify Moser’s assumption of the risk.

CONCLUSION

Under the present state of the law, as applied here, the result is reasonable. By knowingly participating in a sporting event in which what occurred is an evident risk, Moser is not entitled to a recovery from Ratinoff.

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

Turner, P. J., and Grignon, J., concurred.

Appellant’s petition for review by the Supreme Court was denied April 23, 2003.


Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Jean Knarr & Lester Knarr v. Chapman School Of Seamanship

CIVIL ACTION NO. 99-952

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2000 U.S. Dist. LEXIS 5351

April 14, 2000, Decided

April 14, 2000, Filed

COUNSEL: For JEAN KNARR, LESTER KNARR, PLAINTIFFS: DAVID S. KATZ, DAVID S. KATZ, ESQ., P.C., NORRISTOWN, PA USA.

For CHAMPMAN SCHOOL OF SEAMANSHIP, DEFENDANT: ANDREW P. MOORE, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DOYLESTOWN, PA USA.

JUDGES: JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: JACOB P. HART

OPINION

MEMORANDUM AND ORDER

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

April 14, 2000

The Defendant in this personal injury action has filed a motion for summary judgment. It argues that the Plaintiffs have failed to present any expert testimony to support their contention that the Defendant violated Coast Guard regulations and Florida state laws and codes that would constitute negligence per se pursuant to Florida law. Without the ability to prove negligence per se, Defendant argues that Plaintiffs’ claims are all barred by the release Mrs. Knarr signed.

[HN1] Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. [HN2] The moving [*2] party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [HN3] When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

Construing the evidence in favor of the Plaintiffs, as we are required to do at this stage of the proceedings, reveals the following. Plaintiff, Jean Knarr, was a student at the Chapman School of Seamanship, (“Chapman”). In March of 1997, Mrs. Knarr slipped and fell on one of the wet, wooden ladder steps, while disembarking from a ship, owned and operated by Chapman. To stop her fall, she attempted to reach for a railing on the right side of the ladder. Unfortunately, there was no railing on the right side of the ladder. As a result of the fall, Mrs. Knarr fractured her right foot, ankle, and leg, and suffered other bruises and lacerations.

Before the accident took place, Mrs. Knarr signed an agreement to indemnify Chapman for any suit or claim arising [*3] from the use of Chapman’s equipment.

I, the undersigned, for myself … and all those claiming by, through or under me, for and in consideration of being allowed to use the equipment, motors and vessels … owned by … the Chapman School of Seamanship, Inc. … hereby forever release and indemnify said Chapman School of Seamanship, Inc. from any … bodily injury … suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … bodily injury … is based upon the sole negligence of Chapman School of Seamanship … .

(Chapman Application/Registration Form).

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

[HN4] While, under Florida law, contracts indemnifying a party against its own negligence will be enforced if the language of the contract is clear and unequivocal, see Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)(citation omitted), a party [*4] cannot indemnify itself against negligence per se. See John’s Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fl. 2d Dist. Ct. App. 1979)(holding such indemnification is against public policy).

(Order, 9/9/99). Judge Katz found that there were unresolved issues of fact regarding Chapman’s conduct and whether such conduct constituted negligence per se.

Chapman has now filed a second motion for summary judgment, arguing that the Plaintiffs have failed to present any expert testimony supporting their contention that certain conditions on the ship constituted statutory violations, establishing negligence per se. In response, the Plaintiffs present the court with a report and a letter from the engineering firm of Goedken, Liss. Specifically, Harold A. Schwartz, P.E., states that Chapman violated Coast Guard Regulations, Florida laws and codes, and the rules of the State Boating Law Administrators for safe boating certification.

In the report, however, Mr. Schwartz fails to identify any specific statute, regulation, or rule, that Chapman violated. In a follow-up letter, Mr. Schwartz refers to a standard adopted by the American National Standards Institute [*5] (“ANSI”), applying to ladders. He opines that the ladder in question fails to comply with the ANSI standard in three respects. First, the top rung is not level with the landing platform. Second, the side rails failed to extend the required 3 feet 6 inches above the top of the landing platform. Finally, the ladder did not have sufficient step across distance (the distance from the centerline of the rungs to the nearest edge of the structure). (Letter of Schwartz, 12/9/99).

The court is left to answer the questions of whether a violation of these ANSI standards is sufficient to constitute negligence per se under Florida law, and if not, are these standards embodied in any governing statutes, a violation of which would constitute negligence per se.

We answer the first question in the negative. [HN5] According to ANSI, it is the “coordinator of the United States private sector voluntary standardization system.” <<UNDERLINE>http://web.ansi.org/public/about.html, 4/11/00> As such, the ANSI standards do not have the force of law, absent adoption by statute, ordinance, or regulation. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist. Ct.App.Fl. 1994)(violation [*6] of ANSI standard is “merely evidence of negligence.”); Evans v. Dugger, 908 F.2d 801, 807 (11th Cir. 1990)(ANSI standards regarding handicapped access adopted by Florida regulation); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Dist. Ct.App.Fl. 1989)(Florida adopted ANSI standard for elevator safety by statute).

However, our own search of Coast Guard regulations reveals that the Coast Guard has adopted the specific ANSI standard regarding the step off space (minimum of 7 inches) for escape ladders on small passenger vessels. 46 C.F.R. § 177.500(k). Therefore, we must determine whether a violation of this Coast Guard regulation constitutes negligence per se pursuant to Florida law.

[HN6] According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” DeJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973). Although we have been unable to find any case arising out of the state courts in Florida which concludes that a violation [*7] of a Coast Guard regulation amounts to negligence per se, [HN7] the Fifth Circuit and the United States Supreme Court have concluded that such a violation does constitute negligence per se. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 143 (5th Cir. 1980)(“the failure to follow any Coast Guard regulation which is a cause of an injury establishes negligence per se.”); Kernan v. American Dredging Co., 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394 (1958). [HN8] Similarly, Florida state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. See First Overseas Investment Corp. v. Cotton, 491 So. 2d 293, 295 (Dist.Ct.App.Fl. 1986)(violation of Florida Department of Health and Rehabilitative Service Rule constitutes negligence per se); Underwriters at La Concorde v. Airtech Services, Inc., 493 So. 2d 428, 430 (Fla. 1986)(Boyd, J. concurring)(acknowledging expansion of negligence per se concept to include violations of administrative regulations); H.K. Corporation v. Miller, 405 So. 2d 218 (Dist.Ct.App.Fl. 1981)(violation of state administrative [*8] regulation constituted negligence per se); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1225 (Dist.Ct.App.Fl. 1978)(violation of FAA regulation constitutes negligence per se). But see Murray v. Briggs, 569 So. 2d 476, 480 (Dist.Ct.App.Fl. 1990)(violation of Interstate Commerce Commission regulation not negligence per se); Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Dist.Ct.App.Fl. 1989)(violation of OSHA regulation does not constitute negligence per se). 1 Therefore, we conclude that a violation of a Coast Guard regulation will constitute negligence per se if the plaintiff is a member of the particular class of persons that the regulation sought to protect and she suffered an injury that the regulation was designed to prevent.

1 In Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2nd Cir. 1998), the Second Circuit distinguished violations of OSHA and Coast Guard regulations. The court explained that OSHA, itself, states that it should not be construed “to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees.” Jones, at 595 (citing 29 U.S.C. § 653(b)(4)). Relying on this language, the court explained that imposing negligence per se for an OSHA violation would “enlarge or diminish or affect … the liability of a maritime employer.” Jones, at 595.

[*9] As indicated above, the only ANSI standard relevant to the issues in this case that has actually been adopted by the Coast Guard, is the one dealing with the minimum distance that must be observed between the rungs of the ladder and the nearest permanent object in back of the ladder (here the side of the cabin). 46 C.F.R. § 177.500(k) requires that this distance be at least 7 inches.

The first question we must answer about this regulation is whether the plaintiff is a member of the particular class of persons that the regulation sought to protect. We have little trouble concluding that she is. The regulation appears at Subchapter T of the Coast Guard regulations. This subchapter specifically covers “Small Passenger Vessels (Under 100 Tons).” There is no dispute here that defendant’s boat is such a vessel. The general provisions of subchapter T state that the provisions of the subchapter apply, inter alia, if the vessel carries less than 150 passengers, but more than 6, so long as at least one of the six passengers is “for hire.” Since she was a student of defendant, using defendant’s boat for instruction, clearly Mrs. Knarr was a passenger “for hire.” Finally, the specific ladder [*10] regulation in question appears under the heading “Escape Requirements.” One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic. Cf. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171 (1914).

The next question — whether plaintiff suffered an injury that the regulation was designed to prevent — is a bit more difficult to answer. We nevertheless conclude that there are present here at least some genuine issues of material fact that prevent the court from ruling, as a matter of law, that Mrs. Knarr’s injuries could not have been avoided had the ladder complied with this regulation.

Defendant urges us to give a literal reading to plaintiffs’ complaint, and to find from such a reading that Mrs. Knarr has not alleged any fact from which a jury could conclude that the distance between the cabin wall and the ladder step could have proximately caused her fall. We decline to do so. In addition to the well known principle of federal pleading that [HN9] the facts alleged in a complaint need only put the defendant on notice of the [*11] plaintiff’s theories of recovery and need not state each element of proof with specificity, see Fed.R.Civ.P. 8(a)(2), we have here at least two specific allegations that could relate to the ladder’s set back distance.

In paragraph 10 a. of the complaint, Mrs. Knarr alleges that “the step upon which she was standing was in an unsafe condition.” In the next subparagraph, 10 b., she claims that “there were slippery substances on the steps which were not visible to the plaintiff.” While neither of these allegations specifically attributes negligence to the ladder set-back distance, we think it would be improper, at this point, to preclude plaintiff’s expert from testifying that the setback distance was related to the general “unsafe condition” allegation, or to the plaintiff’s alleged inability to see the condition of the ladder steps themselves.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some [*12] of which will, no doubt, be the subject of expert opinions. Accordingly, summary judgment is inappropriate at this time.

An appropriate order follows.

ORDER

AND NOW, this 14 day of April, 2000, upon consideration of the Defendant’s Motion for Summary Judgment, the Plaintiffs’ response, thereto, including the attached reports of his expert engineer, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE


Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota

The rescue doctrine was created so that the person causing the injury or putting the plaintiff in peril also is responsible for any rescuer of the plaintiff.

Thompson v. Summers, 1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103

State: South Dakota, Supreme Court of South Dakota

Plaintiff: Marvin Thompson

Defendant: Charles Summers

Plaintiff Claims: General negligence claims

Defendant Defenses: no duty

Holding: for the Plaintiff

Year: 1997

This is an interesting case that never fully played out so we don’t know the outcome of the case. A balloonist, eventual defendant, was teaching a student to fly and was attempting to land. Another balloon instructor on the ground, who had taught the instructor in the balloon, thought the landing was not going to be good and attempted to help with the landing.

The balloonist on the ground thought the balloon was going to hit high-voltage power lines. As the balloon got lower to the ground, the balloonist on the ground, the plaintiff, ran over and grabbed the balloon in an attempt to stop the balloon. The balloon hit the power lines and the plaintiff, rescuer, suffered burns over 60% of his body. The two people in the balloon were not injured.

The plaintiff sued the defendant for not employing the rip cord, which opens the balloon to release the hot air. The plaintiff argued failing to employ the rip cord was negligence. (The obvious issue here is what duty was owed by the balloonist to the plaintiff on the ground, other than to not land on him.)

This is confusing, in that failing to protect yourself from injury is a negligent act to one who is injured rescuing you? It is difficult to understand in this case the liability owed to an intervener for your failure to act. Stated another way, your liability because the intervener expected you to act in a certain way?

South Dakota only has one appellate court, the South Dakota Supreme Court. The trial court dismissed the plaintiff’s complaint, and the plaintiff appealed to the supreme court of South Dakota.

The trial court dismissed the complaint on the defendant’s motion to dismiss. Meaning this case was dismissed prior to any discovery or even an answer from the defendant. Therefore, when the appellate court reviews the issues, it must do so to look for any allegations by the plaintiff that may support a claim. This analysis is not whether a claim was supported or could be won in court, just whether or not it, there was any possibly that the case could be.

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

The court started its analysis by looking at the rescue doctrine. The rescue doctrine is an odd, but arguably valid legal argument. If you attempt to assist someone who needs rescued, are injured during that assistance, the person who caused the accident is also responsible for your injuries.

This theory provides that one who, through negligence, jeopardizes the safety of another, may be held liable for injuries sustained by a “rescuer” who attempts to save the other from injury.

A rescuer’s right of action against the initial negligent actor rests upon the view that one who imperils another at a place where there may be bystanders, must take into account the chance that some bystander will yield to the impulse to save life or even property from destruction and will attempt a rescue; negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.

There is an argument that the rescue doctrine was not properly raised at the trial court level and a variation of the rescue doctrine   a dissenting opinion. The dissenting opinion agreed with the outcome of the majority, but felt the analysis of the rescue doctrine was premature. Either way, the court looked at the argument and found it applied to this case.

One argument made by the defendant was that he could not be liable, unless he requested the assistance or at least knew about the assistance.

Summers claims that he would have had to request Thompson’s assistance to establish a duty under these circumstances. At the very least, he argues, Summers must have been aware of Thompson’s presence. At oral argument, counsel for Summers went so far as to state there must be a “relationship” between the plaintiff and the defendant before a duty can be established. On the contrary, it is foreseeability of injury to another, not a relationship with another, which is a prerequisite to establishing a duty necessary to sustain a negligence cause of action. See SDCL 20-9-1, wherein the Legislature codified the common law of negligence: “Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.”

The court did not buy this argument. “As indicated above, “negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well

Not only, that unconscious victims or rescuers the victim does not know about would leave rescuers risking their cost of their own injuries.

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer.

The court also looked at other theories how the plaintiff’s claim may have merit.

One was the argument that the defendant breached federal regulations created by the Federal Aviation Administration. Breaching a statute creates a negligence per se action. “This court has consistently held that “an unexcused violation of a statute enacted to promote safety constitutes negligence per se.”

Whether Summers violated one or more of these statutes and regulations, and if so, whether the violation was the proximate cause of Thompson’s injuries constitutes a question for the factfinder.

However, here again, any breach of an FAA regulation would inure to the passenger, not the rescuer; I would think? However it was held to support the claim of the plaintiff/rescuer here.

However, the court seemed to circle back to that argument when it stated:

With regard to the proximate cause issue, this court has recognized that the mere violation of a statute is insufficient to support an action for damages. Rather, a plaintiff must show that the violation of a statutory duty was the proximate cause of his injury to support a recovery in negligence.

The court sent the case back to the trial court for further proceedings and closed with this summary.

Negligence is the breach of a legal duty imposed by statute or common law.” Thompson clearly outlined a claim under a common-law negligence theory. (“The three necessary elements of actionable negligence are: (1) A duty on the part of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting from such a failure.”). The rescue doctrine is part of the common law of negligence.

So Now What?

The biggest issue which is confusing is the original claim must be based on a negligent act which never occurred to the possible plaintiff, just the defendant. How can the defendant be liable for his own rescue? What negligent act on the part of the defendant created the liability to create the liability for the rescuer?

Where the rescue doctrine comes into play in the outdoor recreation and adventure travel field that creates problems is when other guests attempt to help. Whenever someone is in a jam, everyone wants to help, and you may need everyone’s help. If another guest is injured when helping, and you were the legally the cause of the original accident, you could be liable for the guests who helped also.

Does that mean guests cannot help? No, many times you may need the guests to assist in rescuing someone. Just make sure they know their job, are doing it in a safe way and keep your eyes on them.

Will a release work to stop the claims of the injured guest/rescuer? I have no idea, maybe, but no court that I know of has ever looked at the issue.

What do you think? Leave a comment.

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Thompson v. Summers, 1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103

Thompson v. Summers, 1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103

Marvin Thompson, Plaintiff and Appellant, v. Charles Summers, Defendant and Appellee.

# 19940

Supreme Court of South Dakota

1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103

June 4, 1997, Argued

August 13, 1997, Opinion Filed

PRIOR HISTORY: [***1]

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT. PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE THOMAS L. TRIMBLE Judge.

DISPOSITION:

Reversed and remanded.

COUNSEL:

DAVE L. CLAGGETT of Claggett & Madsen, Spearfish, South Dakota, Attorneys for plaintiff and appellant.

DONALD A. PORTER of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, South Dakota, Attorneys for defendant and appellee.

JUDGES: SABERS, Justice. KONENKAMP, Justice, concurs. MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, concur in result.

OPINION BY: SABERS

OPINION: [**389]

SABERS, Justice.

¶2 On September 4, 1993, Charles Summers was piloting a hot air balloon in an instructional flight over Rapid City, accompanied by flight student Matt McCormick. At about 8:25 a.m., Summers attempted to land the balloon in a public recreational area of Rapid City’s flood plain known as the “greenway.” Marvin Thompson, also a hot air balloon pilot, was at the greenway and recognized the balloon as one he sold to Summers. As Thompson observed Summers’ descent, he became concerned the wind was going to drag the balloon into nearby high voltage power lines. As the balloon skimmed across the ground toward the power lines, Thompson ran over and seized the basket of the balloon, hoping to prevent it from making contact with the power lines. Despite his efforts, Thompson suffered severe electrical burns to over 60% of his body. Summers and McCormick were apparently not injured.

¶3 Thompson sued Summers for his injuries, claiming he was negligent in not employing the rip cord to “rip out” the balloon, a procedure which instantly deflates and stops the balloon. Failure to do so, he claims, was negligence and the cause of his injuries. He argues that, under the “rescue doctrine,” it was foreseeable to Summers that a bystander might intervene when Summers’ negligence put others in peril. In addition, Thompson claims Summers violated several state and federal statutory duties of care pertaining to hot air balloon piloting and landing safety, including proper use of the ripcord.

¶4 Without submitting an answer, Summers made a motion to dismiss the complaint, alleging that Thompson failed to state a claim upon which relief could be granted according to SDCL 15-6-12(b)(5) [hereinafter Rule 12(b)(5) ], which provides:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(5) Failure to state a claim upon which relief can be granted[.] [1]

The trial court granted the motion and dismissed the complaint with prejudice. Thompson appeals.

STANDARD OF REVIEW

¶5 A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff’s claim, not the facts which support it. Stumes v. Bloomberg, 1996 SD 93, p 6, 551 N.W.2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993) (citations omitted). The motion is viewed with disfavor and is rarely granted. Schlosser directs the trial court to consider the complaint’s allegations and any exhibits which are attached. The court accepts the pleader’s description of what happened along with any conclusions reasonably drawn therefrom. The motion may be directed to the whole complaint or only specified counts contained in it…. “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” [quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) ]. The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and “examine the complaint to determine if the allegations provide for relief on any possible theory.” [quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 (1971) ].

506 N.W.2d at 418 (emphasis added). As this appeal presents a question of law, our review is de novo, with no deference given to the trial court’s legal conclusions. City of Colton v. Schwebach, 1997 SD 4, p 8, 557 N.W.2d 769, 771.

¶6 WHETHER ANY LEGAL THEORY EXISTS TO SUPPORT THOMPSON’S CLAIM.

¶7 Thompson advances at least three legal theories which may support his cause of action. We need not, and do not, decide whether he will ultimately succeed on any of these theories. See Schlosser, 506 N.W.2d at 418:

[P]leadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action as this is a matter of proof, not pleadings. The rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful accusations.

(Quoting Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D.1985) (citing Federal Practice and Procedure, supra )).

¶8 First, Thompson argues that the common law of negligence, particularly the “rescue doctrine,” is applicable to this case. [2] That doctrine is simply an adjunct of the common law of negligence. It is “nothing more than a negligence doctrine addressing the problem of proximate causation.” Lowery v. Illinois Cent. Gulf R.R. Co., 891 F.2d 1187, 1194 (5th Cir.1990); accord Stuart M. Speiser et al., The American Law of Torts § 9:23, at 1147 (1985) (“In considering the rescue doctrine and its ramifications, it must be always kept in mind that many–if, indeed not most–American courts regard it in terms of proximate causation.”). This theory provides that one who, through negligence, jeopardizes the safety of another, may be held liable for injuries sustained by a “rescuer” who attempts to save the other from injury. See 57A AmJur2d Negligence § 689 (1989):

A rescuer’s right of action against the initial negligent actor rests upon the view that one who imperils another at a place where there may be bystanders, must take into account the chance that some bystander will yield to the impulse to save life or even property from destruction and will attempt a rescue; negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.

(Footnotes & citations omitted). Interestingly, the rescue doctrine can be traced to an 1822 case involving a crowd rushing to assist a descending balloonist. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 44, at 307 & n.63 (5th ed.1984) (citing Guille v. Swan, 19 Johns. 381 (N.Y.1822), and noting that since that case, the concept of the rescuer is “nothing abnormal”).

¶9 Summers argues that Thompson cannot raise this theory in this appeal because he did not present it to the trial court. We disagree for two reasons: First, Thompson’s complaint and his brief in opposition to the motion to dismiss adequately set forth his reliance on the rescue doctrine. [3] In his complaint, he stated:

Plaintiff perceived the situation to be an imminent threat to the general public on land and further perceived Defendant and Matt McCormick to be in imminent danger of severe physical harm or death. Plaintiff, in an attempt to prevent the same, went to the location of the balloon and grabbed on to it to help prevent it from drifting into the power lines.

(Emphasis added). In his brief, he reiterates the foregoing portion of his complaint, and adds: “Thompson responded to the emergency. In attempting to prevent an accident from happening, he grabbed the balloon to help prevent it from hitting the power lines.”

¶10 In opposing the motion to dismiss, Thompson briefed the case of Olson v. Waitman, 88 S.D. 443, 221 N.W.2d 23 (S.D.1974), which is not precisely on point, but somewhat analogous to the rescue doctrine, and certainly a common law negligence case. That case held that the jury was properly instructed that a plaintiff may have been contributory negligent when she was pinned under a car after she got behind it to push it from a ditch. However, it was error to so instruct the jury on the plaintiff’s second claim of negligence (she was severely burned after the defendant attempted to drive the car off of her). This court held that the plaintiff had two separate claims of negligence against the defendant and stated:

Regardless of how negligent the plaintiff may have been in getting into this predicament, she did not thereby give the defendant license to thereafter injure her with impunity. Id. at 446, 221 N.W.2d at 25 (remanding for new trial with proper instructions).

¶11 Clearly, Thompson adequately outlined his claim even if he did not include the term “rescue doctrine”. See, e.g., Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir.), cert. denied, 444 U.S. 899, 100 SCt 208, 62 L.Ed.2d 135 (1979) (stating that a complaint should not be dismissed because it does not state with precision all elements that give rise to a legal basis for recovery); accord Jackson Sawmill Co., Inc., v. United States, 580 F.2d 302, 306 (8th Cir.1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).

¶12 The second reason we disagree with Summers’ argument that Thompson cannot raise a legal theory for the first time on appeal concerns the nature of a Rule 12(b)(5) motion. It is settled law that the trial court is under a duty to determine if the plaintiff’s allegations provide for relief on any possible theory, regardless of whether the plaintiff considered the theory. Schlosser, 506 N.W.2d at 418; Eide v. E.I. Du Pont De Nemours & Co., 1996 SD 11, p 7, 542 N.W.2d 769, 771; Federal Practice and Procedure § 1357; Seeley v. Brotherhood of Painters, 308 F.2d 52, 58 (5thCir.1962) (“[T]he theory of the plaintiff in stating his claim is not so important and the complaint should not be dismissed on motion unless, upon any theory, it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved in support of his claim.”); cf. Doss v. South Cent. Bell Tel. Co., 834 F.2d 421, 424 (5th Cir.1987) (“[T]he fact that a plaintiff pleads an improper legal theory does not preclude recovery under the proper theory.”); Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 714 (8th Cir.1979) (“The ‘theory of the pleadings’ doctrine, under which a plaintiff must succeed on those theories that are pleaded or not at all, has been effectively abolished under the federal rules.”).

¶13 Summers argues the motion to dismiss was properly granted because Thompson cannot establish a duty owed by Summers to Thompson. Summers claims that he would have had to request Thompson’s assistance to establish a duty under these circumstances. At the very least, he argues, Summers must have been aware of Thompson’s presence. [4] At oral argument, counsel for Summers went so far as to state there must be a “relationship” between the plaintiff and the defendant before a duty can be established. On the contrary, it is foreseeability of injury to another, not a relationship with another, which is a prerequisite to establishing a duty necessary to sustain a negligence cause of action. See SDCL 20-9-1, wherein the Legislature codified the common law of negligence: “Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.” See also Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 662 (S.D.1995), where this court stated, “To establish a duty on the part of the defendant, it must be foreseeable that a party would be injured by the defendant’s failure to discharge that duty.”

¶14 Additionally, Summers misapprehends the principles of the rescue doctrine. The basic theory of this doctrine is that the defendant’s negligence in placing another in a position of imminent peril is not only a wrong to that person, but also to the rescuing plaintiff. Wharf v. Burlington N. R.R. Co., 60 F.3d 631, 635 (9th Cir.1995); Dinsmoore v. Board of Trustees of Memorial Hosp., 936 F.2d 505, 507 (10thCir.1991); Lowery, 891 F.2d at 1194; Bonney v. Canadian Nat’l Ry. Co., 800 F.2d 274, 276 (1st Cir.1986); Barger v. Charles Mach. Works, Inc., 658 F.2d 582, 587 (8th Cir.1981); Barnes v. Geiger, 15 Mass.App.Ct. 365, 446 N.E.2d 78, 81-82 (1983) (collecting cases); Metzger v. Schermesser, 687 S.W.2d 671, 672 (Mo.Ct.App.1985); see generally The American Law of Torts, supra § 9:23; Prosser & Keeton, supra § 44, at 307-09 (collecting cases from nearly every state). The rescuer may also recover from the imperiled party if that party’s negligence caused the peril. Wharf, 60 F.3d at 635. As indicated above, “negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.” 57A AmJur2d Negligence § 689 (1989). Judge Cardozo’s statement regarding the rescue doctrine is often quoted in these cases:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 437 (1921).

¶15 This theory of “duty” comports with the well-established view of this court. See, e.g., Mark, Inc. v. Maguire Ins. Agency, Inc., 518 N.W.2d 227, 229-30 (S.D.1994) (“Whether a duty exists depends on the foreseeability of injury.”); accord Muhlenkort, 530 N.W.2d at 662; see also Mid-Western Elec., Inc. v. DeWild Grant Reckert & Assocs. Co., 500 N.W.2d 250, 254 (S.D.1993) (“We instruct trial courts to use the legal concept of foreseeability to determine whether a duty exists.”).

¶16 Under Thompson’s second theory, he claims that Summers violated a standard of care as provided in SDCL chapter 50-13, “Air Space and Operation of Aircraft.” “Aircraft” includes balloons. SDCL 50-13-1. SDCL 50-13-4 provides:

Flight in aircraft over the lands and waters of this state is lawful, unless … so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.

See also SDCL 50-13-6, which provides, in relevant part:

The owner and the pilot, or either of them, of every aircraft which is operated over lands or waters of this state shall be liable for injuries or damage to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom in accordance with the rules of law applicable to torts in this state.

Additionally, SDCL 50-13-16 provides:

It is a Class 1 misdemeanor to operate an aircraft within the airspace over, above and upon the lands and waters of this state, carelessly and heedlessly in intentional disregard of the rights or safety of others, or without due caution and circumspection in a manner so as to endanger or be likely to endanger any person or property.

All of these statutes were presented to the trial court. This court has consistently held that “an unexcused violation of a statute enacted to promote safety constitutes negligence per se.” Bell v. East River Elec. Power Coop., Inc., 535 N.W.2d 750, 755 (S.D.1995) (citing Engel v. Stock, 88 S.D. 579, 225 N.W.2d 872, 873 (1975); Bothern v. Peterson, 83 S.D. 84, 155 N.W.2d 308 (1967); Blakey v. Boos, 83 S.D. 1, 153 N.W.2d 305 (1967)).

¶17 Third, Thompson argues that Summers violated certain federal regulations [5] relating to hot air balloon piloting and landing safety, including proper use of the ripcord in emergency operations. See, e.g., 14 C.F.R. § 61.125(e)(5), which requires applicants for a commercial certificate for piloting balloons to have knowledge in

Operating principles and procedures for free balloons, including emergency procedures such as crowd control and protection, high wind and water landings, and operations in proximity to buildings and power lines.

Additionally, id. § 61.127(f) sets minimum proficiency requirements for balloon pilots and requires competence in, among other procedures, landing and emergency operations, including the use of the ripcord. See also id. § 91.13 (“No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”). These regulations were presented to the trial court.

¶18 Whether Summers violated one or more of these statutes and regulations, and if so, whether the violation was the proximate cause of Thompson’s injuries constitutes a question for the factfinder. Violation of the statute “alone is not sufficient to render them liable to the plaintiff. Before they may be held to respond in damages it must further appear that their violation of the duty placed on them by this rule was the proximate cause of plaintiff’s injury. The burden of establishing this is on the plaintiff.” Blakey, 83 S.D. at 8, 153 N.W.2d at 309 (citation omitted); accord Musch v. H-D Coop., Inc., 487 N.W.2d 623, 625-26 (S.D.1992):

With regard to the proximate cause issue, this court has recognized that the mere violation of a statute is insufficient to support an action for damages. Rather, a plaintiff must show that the violation of a statutory duty was the proximate cause of his injury to support a recovery in negligence. Serles v. Braun, 79 S.D. 456, 113 N.W.2d 216 (1962); Zeller v. Pikovsky, 66 S.D. 71, 278 N.W. 174 (1938). In Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981), we stated: “For proximate cause to exist, ‘the harm suffered must be found to be a foreseeable consequence of the act complained of…. The negligent act must be a substantial factor in bringing about the harm.’ Williams v. United States, 450 F.Supp. 1040, 1046 (D.S.D.1978).”

(Emphasis & alterations omitted). Questions of proximate cause are for the jury in “all but the rarest of cases.” Bauman v. Auch, 539 N.W.2d 320, 325 (S.D.1995); Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 903 (S.D.1994); Holmes v. Wegman Oil Co., 492 N.W.2d 107, 114 (S.D.1992).

CONCLUSION

¶19 “Negligence is the breach of a legal duty imposed by statute or common law.” Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D.1988) (citing Walz v. City of Hudson, 327 N.W.2d 120, 122 (S.D.1982)). Thompson clearly outlined a claim under a common-law negligence theory. See id. (“The three necessary elements of actionable negligence are: (1) A duty on the part of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting from such a failure.”). The rescue doctrine is part of the common law of negligence. Therefore, under the law governing a motion to dismiss under Rule 12(b)(5), it was improper to dismiss Thompson’s lawsuit even if the doctrine was not yet addressed in South Dakota. [6]

¶20 Additionally, Thompson set out South Dakota statutes and federal regulations which establish the standard of care for a hot air balloon pilot. The question is “whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief.” Schlosser, 506 N.W.2d at 418 (emphasis added). Thompson asserts at least three theories which may support his cause of action. Therefore, the trial court erred in holding as a matter of law that Thompson did not allege a duty owed by Summers. Whether he can ultimately succeed presents questions not capable of resolution by a motion to dismiss. We reverse and remand for trial.

¶21 KONENKAMP, J., concurs.

¶22 MILLER, C.J., and AMUNDSON and GILBERTSON, JJ., concur in result.

MILLER, Chief Justice (concurring in result).

¶23 I agree with Justice Sabers’ ultimate result and his discussion noting that Thompson’s complaint states various theories which may support the cause of action (common-law negligence, state statutes and federal regulations). I must merely concur in result, however, because I disagree with and disassociate myself from the discussion and analysis of the rescue doctrine, specifically pp 8-16 supra.

¶24 Analysis of the propriety and applicability of the rescue doctrine at this juncture in these proceedings is premature at best. The doctrine was not argued or advanced by Thompson as a theory to support his cause of action below. It is well settled that we will not review issues which have not been presented to the trial court. Boever v. Board of Accountancy, 526 N.W.2d 747, 750 (S.D.1995); Fullmer v. State Farm Ins. Co., 514 N.W.2d 861, 866 (S.D.1994) (citations omitted). Matters not determined by the trial court are not appropriate for appellate review. See Schull Construction Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963). The parties agree and the trial court’s memorandum indicates that the rescue doctrine was not considered in the trial court’s grant of the motion to dismiss. [7] Accordingly, we need not and should not examine the doctrine at this time. [8]

¶25 Any contention that the rescue doctrine was presented to the trial court via the language of the complaint is not persuasive reasoning for reviewing the rescue doctrine as a possible theory of recovery, especially when Thompson specifically concedes he failed to consider the doctrine or present it for the trial court’s consideration. While pleadings need not be so artfully drafted as to specifically list each and every possible claim, the complaint must set forth the facts alleged and contain the essential elements of the cause of action pursued in order to be sufficient. Harmon v. Christy Lumber, Inc., 402 N.W.2d 690, 693 (S.D.1987). See also Weller v. Spring Creek Resort, Inc., 477 N.W.2d 839, 841-42 (S.D.1991). Our deferential standard of review allowing complaints to survive a motion to dismiss for failure to state a claim so long as the “complaint states any valid claim for relief …. ‘on any possible theory,’ ” Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993) (citations omitted), does not require the trial court to ferret out and advance a theory on behalf of a party which has not been recognized in this jurisdiction. Such a requirement would put the trial court in the inappropriate position of advocating on behalf of a party and would unduly strain judicial resources in an effort to explore every conceivable theory, whether recognized in this jurisdiction or not.

¶26 Thompson’s complaint states sufficient theories to support his cause of action; therefore, the trial court’s grant of the motion to dismiss was in error and I agree with Justice Sabers that it should be reversed. However, I respectfully assert that the issue of whether the rescue doctrine is a valid theory of common-law negligence in this jurisdiction should be left until another day when the issue has been properly presented for our review.

¶27 I am authorized to state that Justices AMUNDSON and GILBERTSON join in this concurrence in result.

———

Notes:

[1] SDCL 15-6-12(b)(5) is identical to Federal Rule of Civil Procedure 12(b)(6).

[2] In response to Chief Justice Miller’s special writing, we are reversing on precisely the three theories which he lists as meriting reversal. The rescue doctrine is not, standing alone, a viable theory. It is part of negligence in the same way that respondeat superior, vicarious liability, imputed negligence, and concurrent negligence are a part of negligence. Whether the rescue doctrine will be adopted in South Dakota is premature at this state of the proceedings and must await proper disposition upon remand.

However, the rescue doctrine was pled, argued, and reached even if the precise term “rescue doctrine” was not employed. The complaint clearly demonstrates that Thompson set forth the facts and essential elements of this cause of action. The sum total of the trial court’s decision is as follows:

Defendant’s Motion to Dismiss for failure to state a claim upon which relief can be granted is hereby granted. In order for a negligence action to stand, there must be a duty on the part of the defendant running to the plaintiff; the existence of such a duty is a question of law for the Court. This Court finds that no such duty has been established by the Plaintiff in the case at bar, and therefore the case is dismissed. Defendant is requested to draft and submit the appropriate Order.

By determining that no duty existed, the trial court rejected all three theories, including the common law of negligence, of which the rescue doctrine is a part.

[3] While Thompson’s complaint did not include the term “rescue doctrine”, it pleads a legally sufficient cause of action for negligence under “notice pleading” theory. See SDCL 15-6-8(a):

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain

(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and

(2) a demand for judgment for the relief to which he deems himself entitled.

Relief in the alternative or of several different types may be demanded.

(Emphasis added); see also Norwest Bank Black Hills v. Rapid City Teachers Fed. Credit Union, 433 N.W.2d 560, 563 (S.D.1988) (“Under SDCL 15-6-8(a) it is not necessary to plead ‘duty’ in negligence cases where the existence of a duty may be logically inferred from the claim stated in one’s complaint.”); accord Korstad-Tebben, Inc. v. Pope Architects, Inc., 459 N.W.2d 565, 568 (S.D.1990). Thompson claimed that Summers breached a duty to him by failing to rip out the balloon. It did not require the trial court to “explore every conceivable theory” (infra p 25 (Miller, C.J., concurring in result)) to ascertain whether a duty was indeed owed. Duty is based upon foreseeability of injury to another. Analysis of this case depends upon whether injury to Thompson was foreseeable to Summers, and the rescue doctrine simply facilitates the analysis.

[4] Although not material on a motion to dismiss, Summers claims he did not know until afterward that Thompson tried to help him land safely. As noted, the court accepts the pleader’s description of events. Schlosser, 506 N.W.2d at 418.

[5] “The reasons which persuaded us to hold that the violation of a safety statute or ordinance is negligence as a matter of law apply with equal validity to safety rules and regulations[.]” Blakey, 83 S.D. at 7, 153 N.W.2d at 308.

[6] While this is the first time issues involving the rescue doctrine have been presented to this court, the public policy inherent in the doctrine is already in our statutes. The policy underlying the rescue doctrine is the public’s need for quick and courageous action in emergency situations. Compare SDCL 20-9-4.1, which provides individuals general immunity from liability for their actions in emergency situations:

No peace officer, conservation officer, member of any fire department, police department and their first aid, rescue or emergency squad, or any citizen acting as such as a volunteer, or any other person is liable for any civil damages as a result of their acts of commission or omission arising out of and in the course of their rendering in good faith, any emergency care and services during an emergency which is in their judgment indicated and necessary at the time. Such relief from liability for civil damages shall extend to the operation of any motor vehicle in connection with any such care or services….

(Emphasis added). By adopting this “Good Samaritan” statute, the Legislature adopted the public policy of encouraging persons, and–as the emphasized language indicates–not just professional persons, to act on their instinct when confronted with emergency situations. Of course, persons paid to act in emergencies cannot recover from the tortfeasor under the rescue doctrine. See, e.g., Gray v. Russell, 853 S.W.2d 928, 931 (Mo.1993) (en banc) (explaining the rationale for the “firefighter rule”):

Firefighters and police officers are hired, trained, and compensated to deal with dangerous situations affecting the public as a whole. Because of their exceptional responsibilities, when firefighters and police officers are injured in the performance of their duties the cost of their injuries should also be borne by the public as a whole, through the workers’ compensation laws and the provision of insurance benefits and special disability pensions.

(Citation omitted).

[7] At oral argument, Summers argued and Thompson conceded that the trial court was never presented with the rescue doctrine theory and did not reach the issue.

[8] There are a number of reasons for leaving an analysis of the rescue doctrine for another day. The rescue doctrine presents an issue of first impression in this jurisdiction. The failure to raise the doctrine below foreclosed the opportunity for full briefing and presentation of argument on the issue. The rescue doctrine should not be analyzed without the benefit of all the pertinent authorities and public policy arguments if a complete and informed decision is to be reached.

Additionally, “[p]rinciples of judicial restraint dictate that when an issue effectively disposes of the case, other issues that are presented should not be reached.” Poppen v. Walker, 520 N.W.2d 238, 248 (S.D.1994). The conclusion that the trial court’s motion to dismiss should be reversed on other theories negates the necessity of addressing the rescue doctrine on this appeal.

———


Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993); and,

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

Hawaii Revised Statutes, Section 663-1.54

Badly written statute which was already full of holes was turned absolutely worthless by Hawaiian Federal District Court Decision. You cannot give up the best defense you have when you try and gain more defenses.

In Wheelock vs. Sport Kites

Plaintiff: Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors

Defendant: Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation

Plaintiff Claims: Negligence, Gross Negligence and Product Liability

Defendant Defenses: Release

Holding: Holding for the Defendant on the Negligence claim and for the Plaintiff on the Gross Negligence and Product Liability claims.

In King v. CJM Country Stables

Plaintiff: John King and Patricia King

Defendant: CJM Country Stables

Plaintiff’s Claims: Negligence, Negligence Per Se, Strict Liability, Intentional, Negligent Infliction of Emotional Distress Loss of Consortium, Punitive Damages, Respondeat Superior

Defendant Defenses: release and the Hawaiian Recreational Activity Liability Statute

Holding: For the Plaintiff

Tourists are the life blood of the outdoor recreation industry. No place does that ring any truer than Hawaii. Without tourists who are there for a vacation or as a stop on a cruise ship, Hawaii’s economy would grind to a stop.

In an effort to limit liability for outdoor recreation activities, the recreation providers passed a law attempting to reduce or prevent lawsuits for injuries tourists received recreating.  However, this Hawaiian law backfired by eliminating the use of releases a defense against a claim in the statute.

To set the stage for Hawaii’s move towards recreation legislation, it is important to acknowledge the development of Hawaiian common law.  The landmark case, Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993), was the first time the Hawaiian courts dealt with whether an express release of liability bars all claims of negligence.  Wheelock plunged to his death while paragliding when all the lines connecting the canopy to his harness broke.  Wheelock’s wife sued, even though her husband signed a waiver releasing Sport Kites.  The court upheld the release for negligence, declaring that Wheelock assumed the risk of paragliding.

The court did not allow the release to bar claims for gross negligence and the product liability claim.

Despite the Wheelock decision, the statewide Activity Owners Association of Hawaii believed litigation over recreation accidents needed to be reduced. The belief was it would lower insurance premiums and promote business growth. (See Ammie Roseman-Orr, Recreational Activity Liability in Hawai’i: Are Waiver Worth the Paper on Which They Are Written?, 21 U. Haw. L. Rev. 715.) Without a law, every accident had the opportunity to test the waters of the legal system in hopes of a reward.  The Recreational Activity Liability Statute was enacted in 1997 to reduce recreation accident litigation’

§ 663-1.54.  Recreational activity liability.

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

This statute superseded the common law, which developed through Wheelock and the cases preceding it.

The first case to review the statute was King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511. In this case, the plaintiff was on a seven-day cruise that left Vancouver and went to Hawaii. While in Hawaii, the plaintiff booked a horseback ride through the cruise, with the defendant stable. While riding, the plaintiff was bit by another rider’s horse. She sued.

The court immediately reviewed the above Hawaiian Recreational Activity Liability Statute. Reading the statute the court concluded:

…these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries.

The court looked at the language of the release which states the trier of fact must determine if the injuries were caused by the activity, or in this case, the horse. The court found that under the statute, the court could not support the defendant’s motion for summary judgment because the statute “…explicitly precludes waiving liability for negligence.”

Since there was a genuine issue of material fact, meaning there were facts important to the case that had two different versions or interpretations (duh!) then the jury had to decide the case no matter what. The statute placed a burden on the plaintiff that was greater than the normal burden of proof, however the decision placed a greater burden on defendants in the increased cost of litigating cases.

…whether Defendant was negligent; and the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.

So?

The statute left an enormous hole that will allow every injured party to recover something. The statute states that an “inherent risk” must be determined by the trier of fact, and that negligence cannot be an inherent risk. Consequently, the statute is worthless.

It gets worse. Under the previous common law, the judge could determine the inherent risk and grant summary judgment. In the case of Wheelock, the judge determined that, as a matter of law, equipment failure is an obvious risk of paragliding and set this as a precedent for future paragliding cases.  The recreation statute, on the contrary, declares that the trier of fact must determine the inherent risks of the activity. The trier of fact is the jury. Therefore, every claim will go to trial. That increases the cost and increases the chance that a settlement will occur to reduce the cost of litigation.

Summary judgment cannot be granted because a jury trial must be held to determine if the risk is inherent.  The cost of litigating jury trials will be substantially higher than the cost of a motion for summary judgment.  A precedent cannot be set because it is determined, as a matter of fact, so the inherent risks must be determined in every case.

Even cases with identical inherent risks and injuries must be brought before a trier of fact, with the possibility for differing results.  Second, the statute explicitly states that providers will be liable for negligence.  Wheelock previously determined negligence could be an inherent risk that customers assumed when they signed the waiver for, thereby releasing the provider from liability.  The statute no longer allowed the customer to assume the risk of negligence, making the statute a major step backward for activity providers.

So Now What?

Although a good effort by the Activity Owners Association of Hawaiian, they probably wrote the legislation without help from attorneys or those knowledgeable in how the statute would be applied (someone who had been in a courtroom with a suit and briefcase).

The statute is great in its intent; the actual way it was written makes the statute the best thing that could happen for any injured person in Hawaii. No matter what, this statute is going to allow the plaintiff to recover because the cost of fighting every claim through trial is at least $50,000 or more. Consequently, it will always be cheaper to settle than to sue.

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WA Zip line lawsuit dismissed because the plaintiff admitted he should have understood the risk

Oldja v. Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Outcome of the lawsuit would be very different today because zip lines must be licensed in WA.

The defendant won this case not based on defenses they had but because the plaintiff did not plead a case that was supported by the law. Like having to prove the four components of negligence, when arguing a statute, you must meet the definitions in the statute. The statute must be written to protect or incorporate theEnglish: Zip Line Canopy tour in Jaco Beach. O...claims you are pleading.

The plaintiff was at a camp and conference center when he, and his wife decided to ride the zip line. The plaintiff watched his wife ride the zip line then he rode the line. Between the time, he was cleared to ride the zip line and when he shoved off, he wrapped his fingers around one of the ropes. When he placed his weight on the rope it severely injured his fingers.

The plaintiff sued the camp under several theories of negligence, product liability, and negligence per se. The defendant filed a motion for summary judgment which the court upheld. The basis of the motion was the allegations of the plaintiff failed to meet the statute or the definition of the claim. The product liability claim was waived by the plaintiff and dismissed by the court without argument.

So

The first issue the court reviewed was the duty of care (negligence claim) owed by the defendant to the plaintiff. The plaintiff argued that the care owed was to keep the premises reasonably safe for the use by the business invitees. That is the duty of a land owner to a business invitee. The defendant argued that the duty was a duty to disclose.

Under that theory, the duty to disclose, the defendant is liable if the defendant:

a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Amount of care owed to the business invitee is very different based on what duty of care is applied to the case. Here, because the accident occurred in the air on a zip line and not on the ground, a different duty was owed.

The plaintiff argued this section did not apply because the accident occurred on the land. The court disagreed and held the zip line was chattel, moveable, and not part of the land, so therefore the duties of the defendant were not as high as if the accident had occurred on the land. The court agreed and found the zip line was a chattel and as such a lesser degree of care was owed to the plaintiff. The plaintiff could not prove their claim, and the claim was dismissed.

The court also looked at the deposition testimony of the plaintiff were he admitted that if he had thought about it, he would have known of the risk of wrapping his fingers around the rope.

Q. Did you know that if you wrapped the rope around your fingers and then you put weight on the rope, that that would tighten and cinch around your fingers?

A. The thought did not cross my mind.

Q. Okay. You didn’t think about that correct?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

A. If someone asked me?

Q. Yes.

A. Yes.

There is no duty to disclose if the plaintiff knew or should have known of the risk.

The next argument was the zip line must have been licensed, and because it was not, the injury was a negligence per se claim. Negligence per se is a violation of a state statute or a regulation created to protect people. A negligence per se claim does not allow many defenses and usually voids a release. Negligence per se claims are nasty.

The argument was the zip line was supposed to be licensed, and because it was not licensed the statute was violated. The injury then was a result of the failure to license the zip line. In this case, zip lines did not have to be licensed until several years after the accident so therefore there could not be any negligence per se. The regulation was not violated because there was not regulation at the time of the accident.

If the zip line had been required to be licensed and was not, then there would not have been a lawsuit, only the process of writing a check. Being held liable under a claim of negligence per se does not provide a defendant with much if any defenses.

The final argument made by the plaintiff was the standard of care owed should be that of a common carrier (negligence claim). A common carrier owes the highest degree of care to the public. The plaintiff pointed to cases in California that held that amusement rides were held to the standard of a common carrier.

Here the court looked at the Washington statute and the California statute defining a common carrier. The court found the Washington statute was very narrow in its definitions, and the definitions did not include a zip line. A zip line did not qualify as a common carrier.

The court upheld the defendant’s motion for summary judgment and dismissed the claims.

So Now What?

English: A zip-line over the rainforest canopy...


This case has several interpretations of state statutes that made the decision of the court easy. Both the statute defining what activities needed to be licensed as amusement rides and the state common carrier statutes were very narrowly written, and a zip line did not, at the time of the accident, fall into either definition.

The next issue is the plaintiff admitted understanding, if he thought  about it, that his hand would be injured based on what he did. As such, the plaintiff provided the defense of assumption of the risk, which was not used in this case because the claims were statutory in nature.

When you run an outdoor recreation business, you need to consult an attorney to make sure that you are not violating any statute of the state. Not just the obvious ones.

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Oldja v. Warm Beach Christian Camps And Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Oldja v. Warm Beach Christian Camps And Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Ted Oldja, Plaintiff, v. Warm Beach Christian Camps And Conference Center, Defendant.

CASE NO. C09-0122-JCC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

June 24, 2011, Decided

June 24, 2011, Filed

COUNSEL: [**1] For Ted Oldja, Plaintiff: Kenneth R Friedman, LEAD ATTORNEY, FRIEDMAN RUBIN, BREMERTON, WA; Michael N White, FRIEDMAN RUBIN, (BREMERTON), BREMERTON, WA.

For Warm Beach Christian Camps and Conference Center, Defendant: David R Goodnight, Vanessa Soriano Power, STOEL RIVES (WA), SEATTLE, WA; Francis S Floyd, Nicholas L Jenkins, FLOYD PFLUEGER & RINGER PS, SEATTLE, WA.

JUDGES: John C. Coughenour, UNITED STATES DISTRICT JUDGE.

OPINION BY: John C. Coughenour

OPINION

[*1209] ORDER

This matter comes before the Court on Defendant’s motion for summary judgment (Dkt. No. 49), Plaintiff’s response (Dkt. No. 53), and Defendant’s reply. (Dkt. No. 59.) Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.

I. BACKGROUND

In the summer of 2007, Ted Oldja attended a camp at Warm Beach Christian Camp (“Warm Beach”) in Stanwood, Washington. Mr. and Mrs. Oldja decided to ride on the zip line operated by Warm Beach. The zip line carried riders in a harness suspended from a cable by two ropes: a white rope, which acts as the primary connection between the harness and the cable, and bears the load of the rider’s weight; and [**2] a black rope, which acts as a secondary connection between the harness and the cable, and can be used as a safety line to slow the rider down.

Before a user rides the zip line, it is the job of the launch facilitator to follow a safety procedure. First, the facilitator tells the rider that they can hold on to either the white and black ropes during the ride, or just the white rope. The facilitator instructs riders not to hold only the black secondary line, because it will slow them down or stop them completely. The facilitator then double-checks the harness configuration, pulley attachments, safety helmet, and carabiners. The launch facilitator calls “zip clear” to the landing facilitator to communicate that the rider is ready, and the landing facilitator responds “zip clear” to communicate that the path is clear for the rider.

After watching his wife on the ride, it was Mr. Oldja’s turn. The launch facilitator, Paul Matthewson, testified that he followed the proper safety procedures. (Dkt. No. 49 Ex. 2 at 51- 53.) Matthewson testified that he did not see Oldja wrap his fingers in the white primary rope, and that Oldja’s fingers were not wrapped in the rope when Matthewson cleared him [**3] to go. (Id. at 60.) Some time after Matthewson called “zip clear,” Mr. Oldja, a mechanical engineer, wrapped his fingers in the white primary rope, and stepped off the platform. The load-bearing rope tightened [*1210] around his hand and crushed his fingers. Mr. Oldja was rushed to a hospital and has had several surgeries on his hand. Plaintiff filed suit against Warm Beach for negligence, product liability, and negligence per se under a variety of theories. Defendant now moves for summary judgment dismissal of all three of these claims. Plaintiff does not oppose summary judgment on the product liability claim.

II. APPLICABLE LAW

[HN1] Federal Rule of Civil Procedure 56(c) mandates that a motion for summary judgment be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There exists a genuine issue as to a particular fact–and hence that fact “can be resolved only by a finder of fact” at trial–when “[it] may reasonably be resolved in favor of either party”; conversely, there exists no genuine issue when reasonable [**4] minds could not differ as to the import of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Whether a particular fact is material, in turn, is determined by the substantive law of the case: “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Summary judgment, then, demands an inquiry into “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”; if applying the relevant law to those facts about which no two reasonable factfinders could disagree dictates that the moving party must prevail, then a motion for summary judgment must be granted. Id. at 250-52.

III. DISCUSSION

A. Duty of Ordinary Care

Plaintiff argues that it is well established that every business has a duty to use ordinary care in keeping its premises reasonably safe for use by business invitees. (Dkt. No. 53 at 10.) Defendant argues that Section 388 of the Second Restatement of Torts should govern the analysis. [**5] The Court addresses Section 388 below, but Section 388 governs only the duty to disclose and does not govern the duty of ordinary care. Defendant has not shown an absence of a genuine issue of material fact with respect to its alleged breach of the duty of ordinary care. Accordingly, summary judgment dismissal of this claim is denied.

B. Duty to Disclose

[HN2] With reference to a duty to disclose, The Supreme Court of Washington has adopted Section 388 of the Second Restatement of Torts, which states that the supplier is liable if he:

a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926, 928 (Wash. 1967).

Plaintiff argues that he is choosing not to pursue his claims under Section 388. Rather, Plaintiff argues that the Court [*1211] should consider Section 343A, which creates a duty to protect invitees from known or obvious dangers when the [**6] landowner should anticipate the harm despite such knowledge and obviousness.

Plaintiff is misguided. [HN3] He may choose the claims he brings, but he cannot choose the standard the Court will apply to those claims. Section 343 governs liability for an activity or condition on the land. Section 388 governs liability for use of a chattel. “Chattel” means movable or transferable property. Black’s Law Dictionary (9th ed. 2009). Defendant argues that the zip line is movable property, and Plaintiff does not challenge this characterization. The Court agrees. Plaintiff’s injury was caused by equipment on the land, not the land itself. Accordingly, Section 388 governs Plaintiff’s claims. Lunt v. Mt. Spokane Skiing Corp., 62 Wn. App. 353, 814 P.2d 1189, 1192 (Wash. Ct. App. 1991) (where injury arises from equipment not land, Section 388 not Section 343 governs).

[HN4] Each of the three criteria in Section 388 must be satisfied. The Court will begin with consideration of the second criterion. To prevail on this element at the summary judgment phase, Plaintiff must show some evidence that Defendant had no reason to believe that riders of the zip line would realize the dangerous condition. This is a dense piece of legal language, [**7] so an illustration is helpful.

In Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926 (Wash. 1967), a man disabled a safety feature on a truck that was designed to prevent the motor from starting if the car was in gear. He sold the truck to a mechanic and did not disclose that the safety feature had been disabled. When the purchaser started the truck, it lurched forward, striking and injuring the plaintiff. The Supreme Court of Washington noted that the man who had sold the car had no reason to believe that any future operator of the car would know that the safety feature had been disabled. Id. at 928. Because the seller had no reason to believe the defect would be discovered, he had a duty to warn of that defect. The defect was latent and no amount of common sense or automotive knowledge could inform a driver about that particular hazard. Dismissal of the seller was reversed.

In contrast, Mele v. Turner, 106 Wn.2d 73, 720 P.2d 787 (Wash. 1986) concerns a case where a young man borrowed a lawn mower from his neighbors, inserted his hand into the mower housing to clean out some wet grass, and injured four fingers. The young man admitted in an affidavit: “I obviously realized that one should not put [**8] his hand under the machine where the blade runs . . . .” Id. at 790. The Court held that because the dangerous condition was obvious and known, defendants had no legal duty to warn. Id. There was nothing latent about the defect, and common sense would inform the user of the hazard.

The present case is much closer to Mele than Fleming. Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only Defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:

Q. Did you know that if you wrapped the rope around your fingers and then you put weight on the rope, that that would tighten and cinch around your fingers?

A. The thought did not cross my mind.

Q. Okay. You didn’t think about that correct?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

[*1212] A. If someone asked me?

Q. Yes.

A. Yes.

(Dkt. No. 50 at Ex. A 196:14-197:1.) Given Plaintiff’s admission that he would have realized the danger if he had thought about it, Plaintiff cannot credibly argue [**9] that Defendant had no reason to believe that he would realize the danger.

The only evidence Plaintiff offers on this point is the testimony of Dr. Richard Gill, a Human Factors Engineering consultant. Dr. Gill was disclosed as a rebuttal expert, and testified that the scope of his work was to provide rebuttal testimony to the three defense experts. (Dkt. No. 60 at Ex. 1, Ex 2 16:8-9.) Dr. Gill’s expert report provides a series of conclusions about the behavior of zip line riders that does not rebut any of the testimony of Defendant’s experts. Rather, this type of testimony should have been disclosed in the initial expert discovery responses and is therefore untimely. Accordingly, Dr. Gill’s testimony regarding the behavioral tendencies of zip line or challenge course participants is STRICKEN. Plaintiff has failed to demonstrate a genuine issue of material fact with respect to Defendant’s liability under Section 388.

C. Liability for violation of state regulations

Plaintiff’s next argument is that Defendant was negligent pursuant to RCW 5.40.050 for violation of a state statute. [HN5] WAC 296-403A-190 states that amusement rides must be inspected by certified inspectors. RCW 67.42.010 and [**10] WAC 296-403A-100(2) provide the definition of amusement rides, but do not mention zip lines. Plaintiff argues that these definitions do include zip lines, and relies on a series of communications with the State of Washington Department of Labor and Industries (“L&I”) in 2009 and 2010 in support of this contention. (Dkt. No. 50 at Ex. 11.)

The Court interprets these communications very differently from Plaintiff. It is clear from these emails that the decision to include zip lines in the definition of “amusement ride” under WAC 296-403A-100(2) was not made until late 2009 or early 2010, more than two years after Plaintiff injured his hand on Defendant’s zip line. (Dkt. No. 50 at Ex. 11.) Plaintiff does not address this chronology in his briefing. It is misleading in the extreme for Plaintiff to characterize Defendant’s zip line as “unlicensed” when the licensing body had not yet decided that a license was required. Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s failure to comply with licensing requirements.

D. Common Carrier Liability

Plaintiff’s third argument is that Defendant is subject to common carrier liability. [HN6] Under Washington law, the duty [**11] of a common carrier to safeguard passengers from injury requires the carrier to exercise the highest degree of care consistent with the practical operation of its business or its type of transportation. Benjamin v. Seattle, 74 Wn.2d 832, 447 P.2d 172 (1968). Plaintiff acknowledges that there is no Washington caselaw addressing the issue of whether a zip line qualifies as a “common carrier,” but argues that this Court should expand the definition to include zip lines and similar amusement rides. In support of this argument, Plaintiff mentions a series of California decisions holding that a higher standard of care applies to amusement rides. Gomez v. Superior Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41, 47 (Cal. 2005) (holding that the same high standard of care applied to carriers of passengers should also apply to operators of roller [*1213] coasters); Neubauer v. Disneyland, 875 F. Supp. 672, 673 (C.D. Cal. 1995) (holding that under California’s broad common carrier statute, a Disneyland amusement ride may be a common carrier).

This argument stumbles into the yawning gap between the Washington and California common-carrier statutes. [HN7] California’s common carrier statute is broad: Every one who offers to the public to carry persons, [**12] property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. Cal Civ Code § 2168. Washington’s common carrier statute is narrow and exhaustive:

“Common carrier” includes all railroads, railroad companies, street railroads, street railroad companies, commercial ferries, motor freight carriers, auto transportation companies, charter party carriers and excursion service carriers, private nonprofit transportation providers, solid waste collection companies, household goods carriers, hazardous liquid pipeline companies, and every corporation, company, association, joint stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, and every city or town, owning, operating, managing, or controlling any such agency for public use in the conveyance of persons or property for hire within this state.

RCW 81.04.010(11). Plaintiff offers no argument or evidence for the proposition that this definition includes a zip line. Again, Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s liability as an alleged common carrier.

IV. CONCLUSION

Defendant’s motion [**13] for Summary Judgment (Dkt. No. 49) is GRANTED in part and DENIED in part. Plaintiff’s claims for breach of the duty of ordinary care survive summary judgment. Plaintiff’s claims for breach of the duty to disclose, claims relating to the violation of the WAC, and claims relating to common carrier liability are DISMISSED.

DATED this 24th day of June 2011.

/s/ John C. Coughenour

John C. Coughenour

UNITED STATES DISTRICT JUDGE


Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability

Lombard v. Colorado Outdoor Education Center, Inc., 2011 Colo. App. LEXIS 1401

Court also insinuates that the case was brought to recover worker’s compensation benefits.

This suit was brought by a school teacher who was injured when she attended a training session. She had climbed into a loft to read and was injured when she climbed down. Because she was “working” at the time she received worker’s compensation benefits for her injuries.

The teacher was classified as a “business invitee” acting within the scope of her employment. She was there at the request or to do business with the land owner.

The suit was brought by the injured teacher and her school district. The school district would not have suffered any actionable loss, unless it was self-insured and/or acting under a subrogation clause in a worker’s compensation policy.

Summary of the case

The court started its discussion of the case comparing negligence per se and premises liability. Premise’s liability is defined as the duty owed by a land owner, or a person responsible for the land, such as a tenant, to someone coming upon their land. There are three types of invitees to land: trespasser, licensee and invitee. A trespasser is there without the consent and/or knowledge of the land owner. A License has permission to be on the land, but is not on the land for the benefit of the land owner. The duty of care is minimal with the trespasser and grows with the licensee and is the greatest with an invitee.

The court first started with the negligence side of the discussion. The court defined negligence under Colorado law as:

Negligence is the failure to do an act a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from bodily injury.

A person bringing a negligence claim must establish a duty, a breach of that duty, causation, and damages.
The court then defined Negligence Per Se under Colorado law:

Negligence per se is a common law doctrine which provides that legislative enactments, such as statutes and ordinances, can prescribe the standard of conduct of a reasonable person, or duty, such that a violation of the statute or ordinance constitutes a breach of duty of care. Lombard, 187 P.3d at 573. A plaintiff may recover under a negligence per se theory if he or she can establish that the defendant violated the statutory standard of care, that the statutory standard of care was intended to protect against the injuries sustained, and that the violation was the proximate cause of the injuries sustained. Id. Negligence per se, therefore, serves to conclusively establish the defendant’s breach of a legally cognizable duty owed to the plaintiff. Id.

Negligence per se used to be used to prove premise’s liability actions. However, that is no longer possible under Colorado law. Now a premise’s liability action must be proven according to the Colorado statute.

The plaintiff attempted to prove that the land owner/camp should have known that the ladder was dangerous, and therefore, they owed a duty to the plaintiff to either inform her of the danger or fix the ladder so it was not dangerous.

The jury found that although the plaintiff had been injured, there was no proof, the ladder was a dangerous situation that should have been fixed prior to the plaintiff entering upon the land. The plaintiff and the school district lost its case.

So Now What?

No one brought up the issue of assumption of the risk. By climbing up the ladder to read, she obviously assumed the risk of climbing down? However, assumption of the risk may not be a defense to a premise’s liability claim?

When you own or operate on land (and if you don’t I want to know what you do because water, rivers and lakes from a liability standpoint are land….) you owe the highest duty to people you invite to come on the land for your benefit. An easier way to define that is you owe the highest degree of care t your customers, guests and clients.

The issue then becomes when the law or code surrounding a building or structure has changed, and the building has not. An example would be fire code. Building’s built in the 60’s did not need smoke alarms, fire alarms, etc. Now days you must. It is difficult to determine what you must do, should do and don’t need to do.

However, there are a couple of things to do to keep you knowledgeably with issues.

· Every couple of years, invite a contractor or architect out to look at your structure. Do not ask for a written report, just take notes on what you should or must fix.
· Always fix any item that is a safety issue. Any law that was passed to keep people safe should be dealt with to keep your guests safe.
· Always make sure your buildings meet OSHA requirements. You may not need to have a railing that meets OSHA requirements for your guests but if your employees are on the deck, then you must. See OSHA issues $12,000 in fines for Ski Patrollers death to ski area.

· If you are dealing with minors/children, fix everything all the time.

What do you think? Leave a comment.

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Lombard v. Colorado Outdoor Education Center, Inc., 2011 Colo. App. LEXIS 1401

Turene Lombard and Pueblo School District #60, Plaintiffs-Appellants, v. Colorado Outdoor Education Center, Inc., a Colorado non-profit corporation, d/b/a The Nature Place; and Sanborn Western Camps, Inc., a Colorado nonprofit corporation, d/b/a The Nature Place, Defendants-Appellees.
Court of Appeals No. 09CA2704
COURT OF APPEALS OF COLORADO, DIVISION THREE
2011 Colo. App. LEXIS 1401
August 18, 2011, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
PRIOR HISTORY: [*1]
Teller County District Court No. 02CV49. Honorable Edward S. Colt, Judge.

COUNSEL: James M. Croshal, Pueblo, Colorado; Mickey W. Smith, Pueblo, Colorado, for Plaintiff-Appellant Turene Lombard.
Ritsema & Lyon, P.C., Paul D. Feld, Denver, Colorado, for Plaintiff-Appellant Pueblo School District #60.
Taylor Anderson LLP, John M. Roche, Kevin S. Taylor, Jared E. Berg, Denver, Colorado, for Defendants-Appellees.
JUDGES: Opinion by JUDGE ROY. J. Jones and Criswell*, JJ., concur.
* Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2010.
OPINION BY: ROY
OPINION
Plaintiffs, Turene Lombard (invitee) and Pueblo School District #60 (school district), appeal from the judgment entered on a jury verdict and the order awarding costs in favor of defendants, Colorado Outdoor Education Center, Inc. and Sanborn Western Camps, Inc. (owners), in this action under section 13-21-115, C.R.S. 2010 (premises liability act). We affirm the judgment, and affirm the order awarding costs in part and vacate it in part.
In February 2000 at the request of school district, invitee, a teacher employed by the district, attended an overnight [*2] training session which was held at a conference facility and resort owned and operated by owners. The resort had, among others buildings, eleven fourplex buildings, each unit of which had a main floor sleeping area, kitchenette, bathroom, and loft. Access to the loft was gained by a wooden ladder, with no handrails, that was fixed to the wall at the top and to the floor a distance from the wall at the bottom. In her unit, invitee climbed the ladder to the loft, which was equipped with a mattress, to read. She was injured when she fell descending the ladder.
Because invitee was within her scope of employment, she applied for and received substantial workers’ compensation benefits. Invitee and school district brought a joint action against owners under the premises liability act.
Owners filed, and the trial court granted, a motion for summary judgment on the ground that there was no evidence that they knew or should have known of a dangerous condition on their property. Invitee appealed, and a division of this court affirmed. Lombard v. Colorado Outdoor Educ. Ctr., Inc., 179 P.3d 16 (Colo. App. 2007). On certiorari review, our supreme court reversed and remanded for trial. Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d 565 (Colo. 2008) [*3] (Lombard).
At trial, invitee presented evidence of the fall and the injuries she sustained. Through expert testimony, she presented evidence that the applicable building code required a code-compliant staircase for access to an upper floor habitable space, and that the acceptance of a ladder as an alternative design was not permitted by the building code because a ladder is not as safe as a staircase. She argued that owners knew or should have known the ladder was dangerous because it allegedly violated the building code.
Owners presented evidence that (1) they had no actual notice that the ladder constituted a dangerous condition; (2) the plans for the unit depicting the ladder access to the loft were approved by the county building department, which administered the building code; (3) the county building department issued a certificate of occupancy following the completion of construction; and (4) they had never received reports of any incidents involving, or injuries resulting from, the use of the ladders in the twenty-four years since the construction of the first units. In addition, there was conflicting evidence from which owners argued that invitee was negligent in her use of [*4] the ladder, and that her negligence was the cause of her injuries.
Following a seven-day trial, a jury returned a verdict for owners and responded to interrogatories on the verdict form as follows:
Question No. 1: Did the [plaintiffs] have injuries, damages and losses?
Answer No. 1: Yes
Question No. 2: Did [owners] . . . actually know about a danger on their property or using reasonable care should have known about it?
Answer No. 2: No
Question No. 3: Did the [owners] fail to use reasonable care to protect against the danger on their property?
Answer No. 3: No
Question No. 4: Was the [owners’] failure a cause of the [invitee’s] injuries, damages or losses.
Answer No. 4: No
(Emphasis added.)
Owners sought costs jointly and severally against invitee and school district, which the trial court awarded. This appeal followed.
At the outset, we note that there was no dispute that invitee was a business invitee within the meaning of the premises liability statute and that she suffered injuries. Invitee’s arguments focus on the jury’s negative response to the second interrogatory. These arguments assert error with respect to (1) the instructions given or refused; (2) the trial court’s refusal to admit [*5] into evidence plans for units constructed after the unit in question, which characterized the loft as “storage”; (3) the trial court’s refusal to allow invitee to call a third expert witness on the building code; and (4) the trial court’s failure to instruct the jury that an owner’s duties under the premises liability act are not delegable.
I. Premises Liability Act and Negligence Per Se
Because this case involves the relationship, if any, between the premises liability act and the common law doctrine of negligence per se, we deem it appropriate to begin with a discussion of that relationship after our supreme court’s decision in Lombard.
Negligence is the failure to do an act a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from bodily injury. Lawson v. Safeway, Inc., 878 P.2d 127, 130 (Colo. App. 1994); Woolsey v. Holiday Health Clubs & Fitness Centers, Inc., 820 P.2d 1201, 1204 (Colo. App. 1991). A person bringing a negligence claim must establish a duty, a breach of that duty, causation, and damages. Redden v. SCI Colorado Funeral Services, Inc., 38 P.3d 75, 80 (Colo. 2001); [*6] Miller v. Byrne, 916 P.2d 566, 577 (Colo. App. 1995).
Negligence per se is a common law doctrine which provides that legislative enactments, such as statutes and ordinances, can prescribe the standard of conduct of a reasonable person, or duty, such that a violation of the statute or ordinance constitutes a breach of duty of care. Lombard, 187 P.3d at 573. A plaintiff may recover under a negligence per se theory if he or she can establish that the defendant violated the statutory standard of care, that the statutory standard of care was intended to protect against the injuries sustained, and that the violation was the proximate cause of the injuries sustained. Id. Negligence per se, therefore, serves to conclusively establish the defendant’s breach of a legally cognizable duty owed to the plaintiff. Id.
Section 13-21-115(3)(c)(I), C.R.S. 2010, establishes a standard of care owed by a property owner to an invitee: “an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.” (Emphasis added.)
Lombard was decided in a summary judgment context. In that context, owners [*7] were required to show that there was no genuine issue as to any material fact, and that they were entitled to judgment as a matter of law. C.R.C.P. 56(c). Invitee, therefore was tasked to show through affidavits and other materials that there was a genuine issue as to a material fact and did so by producing evidence sufficient to raise negligence per se.
In discussing negligence per se in the premises liability act context, our supreme court stated in pertinent part:
The language of the premises liability statute makes clear that a party may no longer bring a negligence per se claim against a landowner to recover for damages caused on the premises. The premises liability statute is broad reaching in its scope . . . .
[In Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004), we concluded that the premises liability statute’s] “express, unambiguous language . . . evidences the General Assembly’s intent to establish a comprehensive and exclusive specification of the duties landowners owe to those injured on their property.” 103 P.3d at 328. We noted that “the General Assembly indicated its intent to completely occupy the field and supersede the existing law in the area.” Id. As such, we concluded [*8] that “the plain language preempts prior common law theories of liability, and establishes the statute as the sole codification of landowner duties in tort.” Id. Thus, it would be entirely inconsistent with the plain language of the statute and the holdings of this court to bypass the [premises liability] statute and allow for the imposition of liability on the basis of a negligence per se claim. Consequently, we conclude that a plaintiff may recover against the landowner pursuant to the statute only and not under any other theory of negligence.
However, in addressing the premises liability statute, it is an entirely separate question whether proof of the landowner’s violation of a statute intended for the plaintiff’s protection is evidence of the landowner’s “unreasonable failure to exercise reasonable care.”. . . . Consequently, although the premises liability statute has abrogated certain common law claims and defenses in the premises liability context, we do not find that the General Assembly has clearly expressed its intent to abrogate the common law principle that the violation of a statute is evidence of a failure to exercise due care. See Vigil, 103 P.3d at 327 . . . .
In the [*9] absence of guiding legislative intent to the contrary, we conclude that the General Assembly did not intend to preclude a party from arguing that certain statutes and ordinances are relevant to establishing the standard of reasonable care, and thus that the violation of that statute or ordinance is evidence of a failure to exercise reasonable care.
. . . .
In sum, we hold that with respect to the statutory requirement regarding the landowner’s failure to exercise reasonable care, the plaintiff may overcome the landowner’s summary judgment motion by presenting evidence that the landowner violated a statute or ordinance. By necessity, this holding incorporates the common law’s requirement that the plaintiff show he is a member of the class the statute was intended to protect, and that the injuries he suffered were of the kind the statute was enacted to prevent.
Lombard, 187 P.3d at 574-75 (emphasis added)(additional citations omitted). Guided by this exposition, we address invitee’s arguments.
II. Jury Instructions
Invitee argues initially that the trial court erred in failing to deliver four instructions to the jury. We disagree.
A. Standard of Review
We review jury instructions de novo to [*10] determine whether the instructions as a whole accurately informed the jury of the governing law. Fishman v. Kotts, 179 P.3d 232, 235 (Colo. App. 2007). We consider the court’s instructions as a whole. Montgomery Ward & Co. v. Kerns, 172 Colo. 59, 63-64, 470 P.2d 34, 36-37 (1970). It follows that it is not error for the trial court to refuse a tendered instruction which correctly states an applicable legal proposition when the instructions given, taken as a whole, properly instruct the jury on that proposition. Id.; see also Underwood v. Dillon Cos., 936 P.2d 612, 615 (Colo. App. 1997).
Finally, Lombard is binding precedent and the law of the case. People v. Roybal, 672 P.2d 1003, 1005 (Colo. 1983) (citing Dando Co. v. Mangini, 107 Colo. 170, 172, 109 P.2d 1055, 1055-56 (1941); Morton v. Laesch, 52 Colo. 541, 125 P. 498 (1912); and Cache La Poudre Reservoir Co. v. Water Supply & Storage Co., 27 Colo. 532, 62 P. 420 (1900))(law of the case)); People v. Pahl, 169 P.3d 169, 176 (Colo. App. 2006)(binding precedent);.
B. Legal Presumption Instruction
Invitee tendered the following legal presumption instruction, which the trial court rejected:
Presumptions are legal rules based upon experience [*11] and public policy and established in the law to help the jury decide a case. If you find by a preponderance of the evidence that the ladder in [the unit in question] violated the Teller County Building Code, then you must find that the [owners] . . . knew or should have known that the ladder was a dangerous condition and that the [owners] failed to take steps to guard against that dangerous condition.
(Emphasis added.)
This proposed instruction by its terms would have created a conclusive presumption that, if the jury found there was a violation of a building code, owners were presumed to know not only of the violation but also that the violation constituted a dangerous condition within the meaning of the premises liability act, and that owners failed to take steps to guard against that dangerous condition. This proposed presumption instruction is contrary to the express holding and rationale of Lombard, which is that the violation of a statute or ordinance may be considered merely as “evidence of a failure to exercise reasonable care.” Lombard, 187 P.3d at 575 (emphasis added).
The trial court instructed the jury: “If you find that [owners] violated the applicable building code, you [*12] may consider that violation as evidence that [owners] failed to exercise reasonable care. You must consider all evidence regarding this issue in determining whether [owners] exercised reasonable care.”
The trial court further instructed the jury:
For the Plaintiffs . . . to recover . . . on their claims of premises liability, you must find all of the following have been proved by a preponderance of the evidence:
(1) The Plaintiffs had injuries, damages and losses;
(2) The Defendants actually knew about a danger on their property, or as persons or corporations using reasonable care, should have known about it;
(3) The Defendants failed to use reasonable care to protect against the danger of their property; and
(4) The Defendants’ failure was a cause of the Plaintiffs’ injuries, damages, or losses . . . .
These instructions correctly state the law under the common law and the premises liability act, and they are consistent with Lombard. That is, the jury could consider a building code violation as evidence that owners had failed to use reasonable care.
Therefore, the trial court did not err in rejecting the proposed legal presumption instruction.
C. Other Instructions
Invitee further argues that [*13] the trial court erred in rejecting the following proposed instructions:
(1) If the [owners] had to familiarize themselves with the Teller County Building Code in constructing [the unit in question], you may infer from that fact that the [owners] had or should have had notice that the ladder was a dangerous condition.
(2) The law requires the [owners] . . . to have known the requirement of the Teller County Building Code in effect at the time they built on their property any structures governed by the Code.
(3) If you find that [owners] or the Teller County Building Department knew or should have known that the ladder in question was a dangerous condition and failed to take reasonable steps to protect against it and that this dangerous condition resulted in [invitee’s] injuries, then you must find for the Plaintiffs on their claim for premises liability.
(Emphasis added.)
The first and third proposed instructions suffer from the same infirmity discussed above, that is, they equate knowledge of a violation of the building code with knowledge that the violation creates a dangerous condition within the meaning of the premises liability act. As invitee conceded in oral argument, however, not [*14] every violation of a building code results in a dangerous condition, or notice of a dangerous condition, within the meaning of the premises liability act.
The third rejected proposed instruction also suffers from a still more profound inconsistency with the law. It stated that if the county building department knew or should have known that the ladder constituted a dangerous condition, that knowledge would be imputed to owners, in presumably the same manner as notice to the officers, directors, employees, or contractors of owners is so imputed. Invitee has not provided, and we have not been able to find, any legal authority supporting this proposition.
The second proposed instruction is, standing alone, a correct statement of the law. However, the trial court sufficiently and correctly instructed the jury that (1) corporations can act only through their officers, employees, or agents; (2) any act or omission of an officer, employee, or agent of a corporation while acting within the scope of his or her employment is the act or omission the corporation; (3) a corporation knows a fact if it or its agents or employees have information that would lead a reasonable person to inquire further [*15] and that inquiry would have revealed that fact; and (4) parties are presumed to know the law applicable to their conduct, and ignorance of the law is no excuse.
In summary, the trial court did not err in rejecting the proposed instructions because the first and third were incorrect statements of the law and the jury was otherwise adequately and correctly instructed as to the second.
III. Evidentiary Rulings
Invitee next contends that the trial court erred in denying admission of a set of plans for the construction of units in 1990, and in prohibiting an expert witness endorsed by invitee from testifying. She further argues that the trial court abused its discretion in admitting into evidence a video demonstrating the use of the ladder because it had not been timely disclosed. We disagree with all three contentions.
A. 1990 Plans
A trial court has substantial discretion in deciding questions concerning the relevance and admissibility of evidence. Palizzi v. City of Brighton, 228 P.3d 957, 962 (Colo. 2010). Therefore, we will not disturb a trial court’s evidentiary ruling unless it constitutes an abuse of discretion. Id. A trial court abuses its discretion when its ruling is manifestly arbitrary, [*16] unreasonable, or unfair. Id.
At trial, invitee offered the 1990 building plans for lofts built in that year. Though the plans from which the loft in question was constructed showed a mattress in the loft implying that it was for occupancy, the 1990 plans designated the loft, as “storage space.” The trial court excluded the plans as irrelevant because they were drawn eight years after the unit at issue was constructed, and, relying on CRE 403, concluded that there was a significant chance that the plans could mislead the jury and confuse the issues.
Invitee argues that the 1990 plans put owners on notice that the unit in question here violated the building code, by showing a change in the designated use of the loft space. There was, however, ample evidence introduced through invitee’s expert witnesses that the ladder in the unit violated the building code at the time of its construction. Further the trial court instructed the jury that owners are required to follow the law, ignorance of the law is no excuse, and a violation of the building code is evidence that owners failed to exercise reasonable care.
Therefore, we conclude that the trial court did not abuse its discretion in denying [*17] admission of the 1990 plans into evidence.
B. Expert Testimony
Next, invitee contends that the trial court erred in prohibiting her third endorsed expert witness on the building code from testifying. Before a trial scheduled in 2005, invitee endorsed three liability experts. Before the 2009 trial, owners filed a motion requesting that the trial court limit invitee to only one expert witness on each issue. The trial court denied the motion.
At trial, owners objected to the second building code expert testifying because the testimony would be cumulative. In overruling the objection, the trial court stated:
We spent the bulk of the day on the first [building code] witness. And I will tell you right now that if I do allow this testimony, it will be much more streamlined. Quite frankly, it — I’m going to rule on this as it comes, and if I find it to be cumulative, I will rule on it at the time. I’m not going to do it in advance. But I will put the parties on notice that we won’t be spending much time on these extra experts. So you prepare your direct accordingly, sir, because we simply don’t have time.
Invitee argued that the third expert’s testimony would not be cumulative because he was an [*18] architect with experience examining building plans, whereas her first two experts were not plan examiners. Ultimately, the trial court concluded that the nearly seven hours of expert testimony on the alleged building code violations were sufficient.
We see no abuse of discretion here. Invitee did not demonstrate in the trial court, and does not do so here, that the third building code expert’s testimony added anything substantive to the evidence. Invitee’s counsel conceded at trial that the testimony was cumulative, stating that the third expert merely had a different background than those of the first two experts. Therefore, so would go the argument, the third expert would bolster and corroborate the testimony of the first two or, in the alternative, the third expert’s testimony would be more credible than that of the first two because of his different experience.
On appeal, invitee also contends that the trial court’s refusal to let the third expert testify violates the law of the case doctrine because the trial court had previously denied owners’ motion limiting expert witnesses. However, rulings made in the course of ongoing proceedings are interlocutory and may be rescinded or modified [*19] during those proceedings on proper grounds. In re Bass, 142 P.3d 1259, 1263 (Colo. 2006).
Therefore, we see no abuse of discretion in the trial court’s refusal to permit the testimony of the third building code expert and conclude that invitee has failed to demonstrate any prejudice from that refusal.
C. Video
Invitee next argues that the trial court erred in permitting owners to show to the jury a video recording of a person climbing up and down the ladder to one of the lofts. We disagree.
Whether to allow the use of models or other materials for the purpose of demonstration is a matter within the discretion of the trial court. Hampton v. People, 171 Colo. 101, 106, 465 P.2d 112, 114 (1970).
At the outset, we reject invitee’s law of the case argument for the reasons already stated.
Invitee filed a pretrial motion in limine requesting that the video (actually a collection of short videos) be excluded because it had not been timely disclosed. The trial court granted the motion, but later said it would reconsider the matter.
After the testimony of the first building code expert who had inspected the property, the trial court requested a copy of the video for review before ruling on whether [*20] to permit its use. At the time the video was offered, ten days after the trial court had indicated it would reconsider its admission, invitee argued for a mistrial, claiming that the admission of the video was prejudicial based on its untimely disclosure, not its content. Indeed, counsel stated, “I wouldn’t say that [the video is] prejudicial after review.”
In rejecting this argument, the trial court noted that invitee had been on notice for more than ten days that the court was going to review the video and make a decision on its admissibility. When the video was played for the jury, invitee cross-examined the witness and published to the jury several still images from the video.
Therefore, we conclude that the trial court did not abuse its discretion in admitting the video.
IV. Insurance
Invitee next argues that the trial court erred in denying her motion for a mistrial after owners’ counsel implied during his examination of witnesses and in closing argument that any money judgment would be paid by owners, when, in fact, owners were well insured. We are not persuaded.
Evidence that a party did, or did not, carry liability insurance, is not admissible. CRE 411.
During the examination of [*21] witnesses and in closing argument, invitee’s counsel made contemporaneous objections and eventually a motion for mistrial after the three following statements by owners’ counsel: (1) “Well as the attorney for the camp that is going to have to pay that money,” (2) “My client [has] to pay millions of dollars in the case,” and (3) “Rely on what you know to be true about personal responsibility and personal choices, and award no damages to [invitee] or [school district] payable by my client.”
The trial court overruled all of the objections, commenting as to the first objection that the courtroom was in such bedlam that the court doubted the jury heard the statement. The trial court overruled the second and third objections and denied the motion for a mistrial without comment.
An attorney’s attempt to refer to insurance coverage or a lack thereof at trial is improper. Prudential Prop. & Cas. Ins. Co. v. Dist. Court, 617 P.2d 556, 559-60 (Colo. 1980). We review evidentiary rulings for an abuse of discretion. Palizzi, 228 P.3d at 962. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Id.
In addition, “mere inadvertent or incidental mention [*22] of insurance [or the lack of insurance] before the jury does not automatically call for a mistrial; unless prejudice is shown, there is no reversible error in denying a mistrial.” Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6, 12 (Colo. App. 1986). Indeed, “only when the mention of insurance occurs in a flagrant manner that clearly prejudices the rights of a [party] is the trial court’s denial of the motion for a mistrial reversible error.” Cook Investment Co. v. Seven-Eleven Coffee Shop, Inc., 841 P.2d 333, 335 (Colo. App. 1992).
We cannot say that any of these statements, taken individually or cumulatively, was flagrant. Nor do we perceive any prejudice to invitee. The trial court is ultimately in the best position to determine the effect on the jury of these types of comments.
Therefore, we conclude that the trial court did not abuse its discretion.
V. Costs
Invitee next argues that the award of costs for expert witness fees for witnesses who were not called at trial and photocopying of owners’ client file upon substitution of counsel was error. We disagree as to the expert witness, but agree as to the photocopy expense.
Generally, a trial court enjoys broad discretion in [*23] awarding costs, and we will not overturn such an award absent an abuse of discretion. Morris v. Belfor USA Group, Inc, 201 P.3d 1253, 1261 (Colo. App. 2008).
Here, after a hearing, the trial court entered a written order in which it concluded that, “the costs requested by the prevailing party . . . were reasonable and necessary and properly awardable against plaintiffs.”
A. Non-testifying Expert Witness
First, invitee argues that the cost of the expert witnesses who were retained for purposes of testimony, but who did not testify, should not have been awarded. However, costs are permitted for non-testifying experts hired to provide advisory or consulting services, Mgmt. Specialists, Inc. v. Northfield Ins. Co., 117 P.3d 32, 38-39 (Colo. App. 2004), and costs are permitted for experts who do not testify “because some extrinsic circumstance rendered their testimony unnecessary.” Clayton v. Snow, 131 P.3d 1202, 1203 (Colo. App. 2006).
In this case, the experts’ testimony was not proffered because owners’ counsel concluded that the cross-examination of invitee’s experts was sufficient. The trial court found that the advice and assistance of owners’ experts contributed to the cross-examination [*24] of invitee’s experts.
We perceive no abuse of discretion in the trial court’s decision to award the costs of experts who were not called to testify.
B. Copying Owners’ Client File
Invitee also argues that the trial court erred in awarding owners’ costs for copying owners’ client file upon the discharge of owners’ first counsel. We agree.
Invitee relies, in part, on Colorado Bar Association Formal Ethics Opinion 104, Surrender of Papers to the Client upon Termination of the Representation (1999). That opinion deals with the obligation of an attorney upon termination of the representation to take reasonable steps to protect the client’s interests, including surrender of the client’s papers and property. While the analysis there is somewhat more extended, the fundamental premise of the opinion is that the client file is the property of the client and must be surrendered upon request. With respect to copying the client file prior to surrender, the opinion states, in part:
Numerous questions may arise concerning the costs of duplication of the papers and property at the time of delivery. Generally, consistent with recognition that the file must be surrendered to the client, absent agreement [*25] to the contrary, it is the lawyer’s responsibility to bear duplication costs if the lawyer believes that the lawyer should retain a copy. The fact that copies of documents may have been provided to the client previously does not eliminate the responsibility of the lawyer to provide the client with the file. If the lawyer wishes to keep copies of the documents to which the client is entitled, the lawyer can do so at his own expense.
While the Ethics Committee does not express opinions on the law, its guidance in this regard is, nevertheless, useful.
Here, owners, for whatever reason, voluntarily agreed to pay the discharged counsel the cost of photocopying the client file for the benefit or protection of counsel. Because owners agreed to pay that which they had no other obligation to pay, we conclude that we must vacate the order of the trial court awarding the cost of photocopying owners’ client file.
VI. School District’s Liability for Costs
School district contends that the trial court erred in awarding costs against it because it is a political subdivision of the state of Colorado and is exempt from an award of costs by C.R.C.P. 54(d). We agree.
C.R.C.P. 54(d) states that “costs shall [*26] be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law.” (Emphasis added.)
School district, as a public school district, is a political subdivision of the state. Hazlet v. Gaunt, 126 Colo. 385, 397, 250 P.2d 188, 194 (1952).
In Waters v. District Court, 935 P.2d 981, 990 (Colo. 1997), an indigent parent’s appointed counsel brought a successful mandamus against the district court to compel payment of attorney fees incurred in the underlying action and requested an award of costs incurred in the mandamus action. In denying costs, our supreme court stated:
With regard to the State, we have interpreted these rules to mean that costs may be awarded against the State where there is an express legislative provision for costs against the State or where the State is in the position of a party litigant against whom costs are otherwise legislatively authorized to be awarded. See Bennett Bear Creek Farm Water & Sanitation Dist. v. City & County of Denver, 928 P.2d 1254, 1273-74 (Colo. 1996); Central Colo. Water v. Simpson, 877 P.2d 335, 349 (Colo. 1994); [*27] Passarelli v. Schoettler, 742 P.2d 867, 872 (Colo. 1987); Division of Employment & Training v. Turynski, 735 P.2d 469, 472-73 n.5 (Colo. 1987); Board of County Comm’rs v. Slovek, 723 P.2d 1309, 1313 (Colo. 1986); Lee v. Colorado Dep’t of Health, 718 P.2d 221, 228-29 (Colo. 1986). In this case, however, there exists no substantive legislative authorization for the award of costs separate from C.R.C.P. 59(d) and C.A.R. 39(b). The provision in CJD 89-3 for attorney fees and costs does not apply to Waters because she is representing herself, rather than her client, in this action. Thus, we find that the rationale of Central Colorado Water is applicable to this case, and we deny Waters’s request for costs in bringing this original proceeding.
935 P.2d at 990; see also Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119, 130 (Colo. 2005). Merely showing that the state is in the position of a party-litigant is insufficient to award costs against the state under a general costs provision. Farmers Reservoir, 113 P.3d at 130.
Here, owners have sought costs under C.R.C.P. 54(d), section 13-16-105, C.R.S. 2010, and section 13-16-122, C.R.S. 2010.1 These provisions are general costs [*28] provisions.
1 Section 13-16-105 reads, “If any person sues in any court of record in this state in any action wherein . . . a verdict is passed against him, then the defendant shall have judgment to recover his costs against the plaintiff . . . and the same shall be recovered of the plaintiff or demandant, by like process as the plaintiff or demandant might have had against the defendant, in case judgment has been given for the plaintiff or demandant.” Section 13-16-122 lists some items recoverable as costs.
Owners argue that because the school district initiated the proceeding, it waived any immunity from costs. They cite Division of Employment & Training v. Turynski, 735 P.2d 469, 472 n.5 (Colo. 1987), in support of this argument. In the footnote, our supreme court stated, in pertinent part, that, “by appealing the industrial commission’s award of benefits to the court of appeals and by petitioning for certiorari from the court of appeals’ affirmance of the commission ruling, [the state agency] had waived immunity and caused the claimant to incur high costs.” Id. The court cited Lee v. Colorado Department of Health, 718 P.2d 221 (Colo. 1986), in which a successful litigant under the [*29] Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120, C.R.S. 2010, recovered the each-person statutory limit on damages, which is inclusive of costs and interest of $150,000, and sought an award of costs against the department. The department’s insurance had a policy limit of $150,000 for each person and, in addition, a provision for the payment of costs and interest. The CGIA provided that if a public entity was insured with policy limits in excess of the statutory limit, the policy limits controlled. Our supreme court reversed the trial court’s award of costs but remanded for consideration of the applicability and scope of the insurance policy’s costs provision.
Lee is extremely limited in its scope, that is, the award of costs is limited by the insurance policy liability limits if higher than the statutory limit which includes costs and interest. Turynski, in our view, is not persuasive here because it arose in an administrative proceeding to which C.R.C.P. 54(d), section 13-16-105, and section 13-16-122, do not apply.
In addition, in interpreting Fed. R. Civ. P. 54, which is, for all practical purposes, identical to C.R.C.P. 54, federal courts have been clear that “in [*30] the absence of a statute directly authorizing it, courts will not give judgment against the United States for costs or expenses.” Walling v. Norfolk Southern Ry. Co., 162 F.2d 95, 96 (4th Cir. 1947) (quoting United States v. Worley, 281 U.S. 339, 344 (1930)). This is true even if the costs are incurred in an unsuccessful action brought by the United States. Id., (citing DeGroot v. United States, 72 U.S. 419 (1866)).2
2 The school district is bringing a subrogation claim as it is self-insured for workers’ compensation coverages. § 8-41-203, C.R.S. 2010. It has long been recognized that public entities acting in a proprietary capacity are treated the same as private corporations. See, e.g., City of Northglenn v. City of Thornton, 193 Colo. 536, 542, 569 P.2d 319, 323 (1977)(water utility); Bd. of County Comm’rs v. City of Fort Collins, 68 Colo. 364, 189 P. 929 (1920) (same); Valdez v. Moffat County, 161 Colo. 361, 423 P.2d 7 (1967)(hospital). The school district appears to be litigating in a proprietary capacity. We have not found any authority in which the governmental-proprietary distinction has been applied to the award of costs under C.R.C.P. 54(b) or [*31] similar rules in other jurisdictions.
We conclude the award of costs against school district must be vacated. Having so concluded, we need not address school district’s related argument that it was error to award costs against it on a joint and several basis with invitee.
The judgment is affirmed. The orders awarding costs for copying owners’ client file upon a change of counsel and awarding costs against school district are vacated, and the cost order is otherwise affirmed.
JUDGE J. JONES and JUDGE CRISWELL concur.