Words and Phrases Defined in an Articles
Posted: May 9, 2018 Filed under: Editorial | Tags: Adhesion Contract, Amicus Curiae, Assumption of risk, Certiorari, Definitions, Derivative Claim, Duty of care, Express Assumption of risk, Failure to Warn, Foreseeability, Forum non conveniens, Fraudulent Misrepresentation, Gross negligence, Implied Assumption of the Risk, Inherently Dangerous, Lex loci contractus, Negligence, Negligence per se, Negligent Misrepresentation, Open and Obvious, Phrases, Primary Assumption of Risk, Product liability, Public Policy, Punitive damages, recklessness, Release, Remittitur, Rescue Doctrine, Respondeat Superior, Secondary Assumption of Risk, Sudden Emergency Doctrine, Unconscionable, Wanton or Reckless, willful, Wrongful Death Leave a commentThe 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.
Last Updated April 24, 2018
Twenty years ago, the New Hampshire Supreme Court shows how you can trample common sense to find a release invalid.
Posted: April 23, 2018 Filed under: Case Analysis, Equine Activities (Horses, Donkeys, Mules) & Animals, New Hampshire, Release (pre-injury contract not to sue) | Tags: Acting Out, Animal, contract language, contravenes, entitled to judgment, exculpatory, exculpatory clauses, exculpatory provision, exhaustive, genuine, Horse, horseback riding, inclusive, issue of fact, matter of law, misunderstanding, Negligence, Notice, obscured, opportunity to prove, own negligence, personal injury, prefaced, Public Policy, qualifying, quotations, Reasonable person, Release, ridden, Summary judgment, tour guide, Trail Ride, unabridged, verb Leave a commentRelease was signed for a trail ride and plaintiff claimed she told guide his horse was getting ready to act out before it kicked her.
Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: Brenda Wright
Defendant: Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: for the Plaintiff
Year: 1995
Summary
Twenty-year-old New Hampshire Supreme Court decisions shows how convoluted a court can get when it decides a release will not be enforced. Court held the language in the release was confusing. However, to get that point the court had to not read the release I think.
Facts
The plaintiff signed up for a trail ride with the defendant. While on the ride she was kicked in the leg by another horse. She sued. On appeal she argued that her guide had failed to respond to indications that his horse, the one that kicked the plaintiff, was about to “act out.”
While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging that her tour guide had failed to respond to indications that his horse was about to “act out.”
[Every time I’ve been bit or kicked by a horse there was no warning. Sure, if a horse’s ears go back, there is a warning, but most times, horse 1, Moss 0. I wish there were indications that a horse was going to act out.]
Prior to suing she signed a release. The trial court dismissed her claim because of the release. She appealed.
New Hampshire has a two-tier court system. The trial court is called the Superior Court and appeals from the Superior Court are appealed to the New Hampshire Supreme Court. This appeal was decided by the New Hampshire Supreme Court.
Analysis: making sense of the law based on these facts.
The entire issue before the court was “whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence.”
The defendant argued the release “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding’“.
The Supreme Court looked at this decision in its analysis in a slightly different way.
This court will not enforce an exculpatory contract that contravenes public policy. “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.”
“Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.”
The court then read the release to determine if a reasonable person would have known about the exculpatory clause in the release. The court then worked hard to find a reasonable person would not.
A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” We will assess the clarity of the con-tract by evaluating it as a whole, not by examining isolated words and phrases.
We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case.
The language the court examined was in all caps so the language stood out from the surrounding language. However, the court stated that when the entire agreement was read, the all cap language was unclear. (?) The court’s determination that the clause was not clear was based on the word therefore.
In this case, the term “therefore” is significant. A common definition of “therefore” is “for that rea-son: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced by the term “therefore” cannot be understood without reading the antecedent language.
The court found additional language that it held confused the meaning of the release. The court concluded its analysis with this statement.
The exculpatory contract lacks a straightforward statement of the defendant’s intent to avoid liability for its failure to use reasonable care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions.
There was a dissent by two justices. Both who found the majority’s analysis was just a little ridiculous.
So Now What?
Sometimes your release is not going to win. In those cases, you are going to rely on your insurance company. In this case, the court worked hard to find little ways it could justify its desire to not support the release.
Possibly, this release might have had a better chance with a simple clear statement that by signing the release the signor could not sue for negligence. This release reads like it was written by an attorney training to kill trees rather than write documents for consumers.
But!
What do you think? Leave a comment.
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Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663
Posted: September 30, 2017 Filed under: Climbing Wall, Indiana, Legal Case | Tags: belayer, business name, causes of action, climber, Climbing, Equine, exculpatory clauses, Falling, genuine issue, Horse, IN, Indoor, Inherent Risks, material facts, matter of law, Negligence, Orientation, own negli-gence, personal injuries, property damage, Release, risk associated, risks inherent, Rock climbing, rope, signing, Summary judgment, top, training, unambiguous, undersigned, waived, Wrongful Death 3 CommentsWiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663
Alexis Wiemer, Plaintiff, v. Hoosier Heights Indoor Climbing Facility LLC, Defendant.
Case No. 1:16-cv-01383-TWP-MJD
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION
2017 U.S. Dist. LEXIS 149663
September 15, 2017, Decided
September 15, 2017, Filed
COUNSEL: [*1] For ALEXIS WIEMER, Plaintiff: Mary Beth Ramey, Richard D. Hailey, RAMEY – HAILEY, Indianapolis, IN.
For HOOSIER HEIGHTS INDOOR CLIMBING FACILITY LLC, Defendant: Jessica Whelan, Phil L. Isenbarger, BINGHAM GREENEBAUM DOLL LLP, Indianapolis, IN.
JUDGES: TANYA WALTON PRATT, United States District Judge.
OPINION BY: TANYA WALTON PRATT
OPINION
ENTRY ON SUMMARY JUDGMENT
This matter is before the Court on Defendant Hoosier Heights Indoor Climbing Facility LLC’s (“Hoosier Heights”) Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 (Filing No. 29). Plaintiff Alexis Wiemer (“Wiemer”) brought this action against Hoosier Heights for personal injuries sustained when he fell during a rock climbing activity. For the following reasons, the Court GRANTS Hoosier Heights’ Motion for Summary Judgment.
I. BACKGROUND
The material facts are not in dispute and are viewed in a light most favorable to Wiemer as the non-moving party. See Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 728 (7th Cir. 2011).
Hoosier Heights, located in Carmel, Indiana, is a limited liability company which owns and operates an indoor rock climbing facility. The facility is open to the public and is available for individuals of all skill levels in recreational climbing. In order to use the facilities, Hoosier Heights requires all patrons [*2] to sign and acknowledge having read and understood a “Waiver & Release of Liability” form (“Waiver”). (Filing No. 30-1.) The Waiver contains: general gym rules, exculpatory clauses relieving Hoosier Heights of liability, a medical authorization clause, an acknowledgement that the participant understands there are inherent risks to rock climbing with some risks listed, authorization to allow the Hoosier Heights’ staff to use any photographs taken during the patron’s visit for promotional materials, and a signature line for the participant. (Filing No. 30-1 at 1.) At the top of the Waiver is Hoosier Heights’ logo, address, and the name Hoosier Heights Indoor Climbing.
The Waiver states, in relevant part:
RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto, I, for myself, my heirs, my estate and personal representative, do hereby release and discharge Hoosier Heights Indoor Rock Climbing Facility L.L.C. (hereinafter referred to as “Hoosier Heights”) from any and all liability for injury that may result from my [*3] use of the facilities of Hoosier Heights Indoor Climbing, and I do hereby waive and relinquish any and all actions or causes of action for personal injury, property damage or wrongful death occurring to myself arising as a result of the use of the facilities of Hoosier Heights or any activities incidental thereto, wherever or however such personal injury, property damage, or wrongful death may occur, whether foreseen or unforeseen, and for whatever period said activities may continue. I agree that under no circumstances will I, my heirs, my estate or my personal representative present any claim for personal injury, property damage or wrongful death against Hoosier Heights or its employees, members, directors, officers, agents and assigns for any of said causes of actions, whether said causes of action shall arise by the negligence of any said person or otherwise.
It is the intention of the undersigned individual to exempt and relieve Hoosier Heights and its employees, members, directors, officers, agents and assigns from liability for any personal injury, property damage or wrongful death caused by negligence.
(Filing No. 30-1.) The Waiver also contained a provision enumerating the risks [*4] inherent in the sport of rock climbing:
ACKNOWLEDGMENT: I, the undersigned, acknowledge that I understand that there are significant elements of risk associated with the sport of rock climbing, including those activities that take place indoors. In addition, I realize those risks also pertain to related activities such as bouldering, incidental weight training, team building, fitness training regimens and equipment purchased or rented at Hoosier Heights. I realize that those risks may include, but are not limited to, injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facilities. I acknowledge and understand that the above list is not inclusive of all possible risks associated with rock climbing or the use of the Hoosier Heights facilities and that other unknown and unanticipated risks may result in injury, illness, paralysis, or death.
Id. In addition to executing the Waiver, Hoosier Heights requires that all patrons attend and acknowledge undergoing orientation and training.
Wiemer visited Hoosier Heights in October 2014. On that date, he attended [*5] a facility orientation, which is an employee-guided training on how to boulder, belay, and top rope climb.1 (Filing No. 30-7.) If a customer intends to use the “top rope” climbing area of the facility, they must first complete the “top rope” orientation and initial and sign the facility orientation form in the appropriate locations. Following his orientation and training, Wiemer signed a Waiver form.
1 Top rope climbing is a style of climbing in which a rope runs from a belayer at the foot of the climbing wall which is connected to an anchor system at the top of the wall and back down to the climber. Both climber and the belayer are attached to the rope through a harness and carabiner. The belayer is responsible for pulling the slack in the rope, which results in the climber moving up the wall. The belayer must keep the rope tight so that, in the event the climber releases from the wall, the climber remains suspended in the air and does not fall.
Kayli Mellencamp (“Mellencamp”), a part-time Hoosier Heights employee with very little rock climbing experience, provided Wiemer’s orientation and training. (Filing No. 30-6.) Mellencamp’s employee training consisted solely of reviewing company provided instructional books on rock climbing and witnessing other employee orientations. (Filing No. 67-2 at 10-11 and 13-14.) Mellencamp had no other professional rock climbing experience.
On January 14, 2015, Wiemer, along with several co-workers, including Robert Magnus (“Magnus”), traveled to Hoosier Heights for recreational rock climbing. Magnus had also previously visited Hoosier Heights, and Wiemer’s and Magnus’ Waivers were already on file and under the terms of their agreements remained in effect (Filing No. 30-6; Filing No. 30-7). Wiemer [*6] was top rope climbing while Magnus belayed below (Filing No. 30-4). Unfortunately, Wiemer fell while he was climbing. Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. (Filing No. 30-4 at 1-4.) As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations.
II. LEGAL STANDARD
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate 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 a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable [*7] inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). “[N]either the mere existence of some alleged factual dispute between the parties . . . nor the existence of some metaphysical doubt as to the material facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted). “It is equally well settled, however, that where no factual disputes are present or where the undisputed facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in favor of that party is entirely appropriate. Collins v. American Optometric Ass’n, 693 F.2d 636, 639 (7th Cir. 1982).
III. DISCUSSION
Hoosier Heights contends that Wiemer’s signing of the Waiver, which contained an explicit reference waiving liability [*8] for Hoosier Heights’ own negligence, absolves it of any liability and Wiemer expressly acknowledged that falling was a risk inherent in indoor rock climbing. Wiemer responds with two arguments in the alternative. First, he argues that the Waiver misidentifies the released party as “Hoosier Heights Indoor Rock Climbing Facility” because the Defendant’s name, as alleged in the Complaint and as evidenced by the Indiana Secretary of State Certificate of Assumed Business Name, is “Hoosier Heights Indoor Climbing Facility.” (Filing No. 67-4.) Second, Wiemer argues that Hoosier Heights negligence in the hiring and training of Mellencamp, was not an included “inherent risk” and this significantly contributed to his fall and injury.
A. Hoosier Heights’ Business Name
The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C.’ (Filing No. 30-1 at 1). Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material [*9] fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy creates ambiguity as to who Wiemer contracted with.
The Court is not persuaded by Wiemer’s argument. “Release documents shall be interpreted in the same manner as any other contract document, with the intention of the parties regarding the purpose of the document governing.” Huffman v. Monroe County Community School Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). “The meaning of a contract is to be determined from an examination of all of its provisions, not from a consideration of individual words, phrases, or even paragraphs read alone.” Huffman, 588 N.E.2d at 1267. In addition, when a contract is unambiguous, Indiana courts look to the four corners of the document to determine the intentions of the parties. Evan v. Poe & Associates, Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007). This analysis of contract interpretation is a question of law. Evans v. Med. & Prof’l Collection Servs., Inc., 741 N.E.2d 795, 797 (Ind. Ct. App. 2001).
In Evans, the Indiana Court of Appeals held that a contract was unambiguous that misidentified a business name in the agreement but included the relevant address as that of the business. Evans, 741 N.E.2d at 798. The Evans court found that the plaintiff could not recover payment from the owner, “Evans Ford,” in his personal capacity, even though that was the name indicated in the contract and the actual business [*10] was organized as a corporation under the name of “Evans Lincoln Mercury Ford, Inc.” Id. at 796-98. The court did not resort to extrinsic evidence because the contract unambiguously identified the parties despite the misidentification. See id. at 798.
In this case, the Waiver is unambiguous as to identifying the parties to the agreement. Although the language of the Release and Assumption of Risk paragraph identifies “Hoosier Heights Indoor Rock Climbing Facility,” the document’s letterhead at the top displays “Hoosier Heights Indoor Climbing,” and includes the relevant business address of Hoosier Heights where Wiemer visited. Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.
B. Negligent Training
Hoosier Heights contends that summary judgment is appropriate because the Waiver’s explicit references to the “inherent risks” of rock climbing creates a binding exculpatory clause which releases Hoosier Heights from liability. Wiemer argues that a genuine issue of material fact exists [*11] regarding whether improper instruction and inadequate training, is an “inherent risk” of indoor rock climbing.
Under Indiana law, waivers containing exculpatory clauses absolving parties of liability for their own negligence must be specific and explicitly refer to waiving that party’s negligence. Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576, 584 (Ind. Ct. App. 2006). Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.” Id. (citing Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999)).
Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume (Filing No. 67 at 10). Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing. Id. Hoosier Heights responds that falls, as indicated by the Waiver, are a specific risk inherent in the nature of rock climbing and that Wiemer specifically waived any claims to injuries from falls by signing the Waiver (Filing No. 68 at 14). Hoosier Heights also contends that Wiemer waived any claims for improper training and instruction [*12] by its’ employees as the Waiver contains an explicit release of Hoosier Heights’ employees for any negligence. Id. at 12.
Hoosier Heights acknowledges that negligence is generally a fact-intensive question; however, it responds that it is entitled to summary judgment because Wiemer waived any claims for liability on the basis of negligence. Id. at 11. Hoosier Heights points the Court to Anderson v. Four Seasons Equestrian Center. In Anderson, the Indiana Court of Appeals held that the defendant, an equine center, was entitled to summary judgment even though the waiver at issue did not contain a specific and explicit release of the equine center due to its own negligence because the plaintiff’s injury of falling while mounting her horse was a risk inherent in the nature of the activity of horse riding. Anderson, 852 N.E.2d at 581. The plaintiff argued that her injury was due to the equine center’s negligence in caring for, conditioning, and training her horse. The court found that the plaintiff’s injury and resulting damages, including her characterization of the cause of those damages (i.e. conditioning and training of her horse), were risks that were inherent in the nature of horse riding and were exactly those for [*13] which she granted the equine center a release of liability by signing the waiver. Id. at 585.
In the present case, Wiemer signed a specific and explicit Waiver, which released Hoosier Heights from liability due to its own negligence. The Waiver explained that “rock climbing activity” at Hoosier Heights included, among other things,
…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…. I understand that the above list is not inclusive of all possible risks associated with rock climbing.
(Filing No. 30-6 at 1). In addition, a very similarly worded reference to liability from their own negligence is contained in the second paragraph of the ‘Release and Assumption of Risk’ section which states, “It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.” (Filing No. 30-1 at 1.) The direct mentions [*14] of Hoosier Heights’ own negligence adheres to the holding set in Powell that an exculpatory clause needs to be specific and explicit in referencing an absolving party’s liability from negligence.
Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver. Accordingly, summary judgment is appropriate.
IV. CONCLUSION
For the reasons stated above, the Court determines that, based on the undisputed material facts, Hoosier Heights is entitled to summary judgment as a matter of law. Hoosier Heights’ Motion for Summary Judgment (Filing No. 29) is GRANTED, and Wiemer’s Complaint is DISMISSED. Final Judgment will issue under a separate order.
SO ORDERED.
Date: 9/15/2017
/s/ Tanya Walton Pratt
TANYA WALTON PRATT, JUDGE
United States District Court
Southern District of Indiana
Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims? Maybe, but only by omission, not by intent I believe.
Posted: June 5, 2017 Filed under: Case Analysis, New Hampshire, Release (pre-injury contract not to sue) | Tags: and loss of consortium, bystander liability, Guide, including negligent training and supervision, Negligence, Release, snow mobile, snowmachine, speeding, vicarious liability Leave a commentThis decision also looks at requiring initials in a release. Stupid move to require initials in any document, it just creates an argument for the plaintiff and requires more time on the defendant’s part to review the signed document.
Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427
State: New Hampshire, United States District Court for the District of New Hampshire
Plaintiff: Jennifer Lizzol, Michael Lizzol, and T.G.,
Defendant: Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch,
Plaintiff Claims: negligence, including negligent training and supervision, vicarious liability, bystander liability, and loss of consortium
Defendant Defenses: Release
Holding: For the Defendant
Year: 2016
This case has two important articles regarding release law. The first is whether a plaintiff can sign away a minor’s right to sue. The results of the decision are yes; however, the issue was never argued or discussed in the decision.
The second is the use of places to initial in a release. The court ruled them of no value. However, because two of the plaintiff’s had not initialed certain sections, it allowed the plaintiff to argue those sections were not valid. Get rid of places to initial in your release because not all courts will rule this way.
The plaintiffs were a husband, wife and minor child who had booked a vacation at the defendant resort. As part of that vacation, they booked a snowmobile (snow machine in the decision) instructions and tour. The booking was done online and occurred as soon as the plaintiff’s checked into the resort.
The snowmobile tours were run by a third party, also a defendant, Out Back Kayak, Inc. This defendant was not named on the release as a party to be protected. Upon arriving at the tour the plaintiffs were instructed to pick out a helmet and sign the release.
Mountain View Grand employee, who told them to quickly pick out helmets and sign a two-page document that bore the following heading:
Snow Machine Tour
ACKNOWLEDGEMENT OF RISKS AND HAZARDS
COVENANT NOT TO SUE
WAIVER AND RELEASE OF LIABILITY
(the “Release”). The Lizzols felt rushed during the process, see, e.g., Defs.’ Mot. for Summary Judgment, Exh. C. at p. 3, but both Jennifer and Michael had an opportunity to review the Release, and each signed and initialed it. (Jennifer executed the release on behalf of her minor son, T.G.). [Emphasize added]
The release had five sections, Section A through E, which had to be initialed. The mother did not initial two sections and the father did not initial one section.
The Release includes five lettered paragraphs that provide tour participants with a designated space in which to place his or her initials, thereby confirming that he or she understands and acknowledges the following:
********************
Id. Jennifer did not initial Paragraph B or Paragraph D, and Michael did not initial Paragraph B. [Emphasize added]
The plaintiff’s received a few minutes of instruction on how to steer brake and operate the snow machines then the tour took off. The plaintiff husband and wife were riding together right behind the guide, and their son was farther back in the line.
The guide told everyone he would not exceed twenty miles per hour. The guide exceeded the self-imposed speed limit immediately and continued to speed. The plaintiff mother was driving the snow machine, and she quickly fell behind and was lost. While attempting to follow the tracks of the guide, she lost control of the machine which flipped and she and her husband fell down an embankment.
Jennifer and Michael rode on a two-person snow machine, with Jennifer operating the vehicle. They were directly behind Welch in the line of snowmobiles. Their son, T.G., rode by himself and was farther back in the line. Welch drove rather quickly during the tour, and far exceeded the self-imposed 20 miles per hour speed limitation he had announced earlier. Jennifer did not keep pace, and, as Welch increased his speed during the second half of the tour, Jennifer lost sight of him. Jennifer attempted to follow Welch’s tracks in the snow, but, in doing so, lost control of the snowmobile, which left the path and flipped over. Jennifer, Michael, and the snow machine fell down a steep embankment that was approximately seventy-five feet high.
The plaintiff’s later learned that numerous customers complained about the guide driving too fast. One manager of the resort asked the husband if the guide had been driving too fast. plaintiff’s later learned that numerous customers complained about the guide driving too fast. One manager of the resort asked the husband if the guide had been driving too fast.
The plaintiffs later learned that other customers may have complained that Welch drove too quickly during earlier snow machine tours. After the accident, Mountain View Grand manager, Chris Diego, asked Michael if Welch had been “going too fast again.”
The defendant filed a motion for summary judgment based on the release. The court granted the motion for summary judgment and dismissed the case.
Analysis: making sense of the law based on these facts.
In making its decision reviewed here the court first looked at the requirements for releases in New Hampshire. New Hampshire has three requirements to make a release enforceable.
Exculpatory contracts are enforceable if: “(1) they do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and (3) the plaintiff’s claims fall within the contemplation of the parties when they executed the contract.”
The plaintiff first argued the release did not apply because the release language looked at renting the equipment and did not contemplate the guide’s failure to act reasonably.
Altogether, they say, the impression is given that the Release applies only to injuries inherent to snow machine activity and the use of snow machine equipment, but not to harm resulting from an instructor’s or guide’s failure to act with reasonable care.
However, the court did not find this argument persuasive because releases are reviewed applies the common meaning to the words in the release and as long as the language is clear and specifically indicates the intent of the parties it will be upheld.
Under applicable New Hampshire law, courts examine the language of a release and “give the language used by the parties its common meaning and give the contract itself the meaning that would be attached to it by a reasonable person.” “As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.”
However, any doubt in the language as to whether the plaintiff agreed to assume the risk, and the release would not be enforced.
However, a defendant “will not be released from liability when the language of the contract raises any doubt as to whether the plaintiff has agreed to assume the risk of a defendant’s negligence.
The language in the release was broad in reach, detailed and clear and as such upheld against this argument of the plaintiff.
The language of the Release unarguably applies to claims or suits based on the negligence of Mountain View Grand owners, employees, officers or agents. The Release does not qualify or limit the “negligence” being released in any way, nor is the Release ambiguous in that regard. [Emphasize added for further discussion.]
A reasonable person “would have contemplated that the agreements released the defendants from any negligence, not just from negligence inherent” in snowmobiling.
The next argument was another that would not have gone in favor of the defendants in many states. The actual party that employed the guide, OBK, was not a named defendant in the release. However, case law in New Hampshire had held that parties protected by a release did not necessarily have to be named in the release. (This is an exception to the rule! Do not rely upon this when writing your release.)
Under New Hampshire law, the release need not specifically name the parties to be protected by only provide functional identification of the parties.
An exculpatory contract need not specifically identify the defendant by name.” “However, the contract must at least provide a functional identification of the parties being released.”
In this release enough of an agency relationship was covered in the release to protect the defendant OBK.
…the Release here makes evident that it pertains not just to the furnishing and use of equipment associated with the snow machine activity, but also to the furnishing of services associated with that activity.
The initial issue was next reviewed. The plaintiff made a great argument to void the sections of the release not initialed by the plaintiff.
Plaintiffs next argue that, even if the Release does encompass the claims at issue, it is still not enforceable against Jennifer, because she failed to initial paragraphs B and D of the Release. Plaintiffs characterize the lettered paragraphs as “several distinct exculpatory clauses” that they were required to agree to separately, and which, as structured, give the impression that “the participant might agree to certain terms, but not others.
However, the court found the concluding language of the release encompassed the entire agreement and by signing the release right below that language the plaintiff agreed to the entire agreement.
Jennifer Lizzol’s failure to initial paragraphs B and D of the Release does not render the Release or those paragraphs unenforceable against her. The same general analysis applies to Michael Lizzol’s failure to initial Paragraph B of the Release.
The first requirement for a valid release under New Hampshire law is that does not violate public policy. This was the last argument raised by the plaintiff and reviewed in the court’s decision. Under New Hampshire law, a release must not violate public policy.
“A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power.” “‘A special relationship exists when “the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service.'” Additionally, a release may be against public policy if, among other things, “it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.”
The plaintiff’s relied on the “disparity of bargaining power” argument to claim the release violated New Hampshire public policy. “”Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract.” However, the court found this would not work.
Here, the plaintiffs were “under no physical or economic compulsion to sign the release,” and “[s]ince the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength” over the plaintiffs or others who sought to participate in the snowmobile lesson and tour.
The plaintiff’s also argued public policy was violated because they were fraudulent induced to sign the release based upon the knowledge that the guide drove too fast.
Plaintiffs assert that defendants had prior knowledge that Welch generally drove too quickly when conducting snow machine tours, and, notwithstanding that knowledge, failed (negligently) to take reasonable steps to ensure that Welch conducted the tours safely. Plaintiffs further contend that they were induced to sign the Release based upon defendants’ false assurances that the lesson and tour would be conducted in a safe manner, with adequate instruction, and at a safe speed. Relying on those assurances, plaintiffs signed the Release. Plaintiffs argue that, at the very least, whether the defendants made assurances (and omissions) regarding the nature of the snow machine tour with conscious indifference to the truth, and whether the plaintiffs justifiably relied upon those statements when signing the Release, are disputed issues of material fact precluding summary judgment.
Fraud in the inducement is a valid defense to contracts and releases. (Remember Marketing Makes Promises Risk Management has to Pay For) to prove fraud in the inducement the plaintiffs must prove:
As the parties seeking to invalidate the Release on fraudulent inducement grounds, plaintiffs bear a substantial burden: they “must establish that the other party made a representation with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it. In addition, the party seeking to prove fraud must demonstrate justifiable reliance.”
However, the plaintiffs could produce no facts to support fraud, an intentional act so to speak on the part of the defendants to support their argument.
Because plaintiffs have not produced sufficient evidence from which a finder of fact could conclude that the defendants knowingly made fraudulent representations to them, they have not established that a genuine issue of fact exists with respect to whether their execution of the Release was fraudulently induced, and is therefore ineffective.
The Release is valid and enforceable, and it encompasses the plaintiffs’ bystander liability claim as well as their negligence claims.
For those reasons, the plaintiff’s claims were dismissed, and the case closed.
So Now What?
There are several important points made in this decision.
Whether or not the court intended for the release to be valid against the claims of the minor is not known. A defendant was probably a minor, and his claims were dismissed based upon the signature on a release signed by his mother. However, this is not a strong enough decision to rely upon at this time.
The statement by the court that the language of the release “does not qualify or limit the “negligence” being released in any way…” is important. So often releases are written with the intent to soften the effect in the mind of the writer or the release is inadvertently written in a way that limits the value of the release. Write a release as broadly as possible and allow the court to restrict it. Why do the court’s job in advance and eliminate a possible defense you may have to a claim.
The final issue is initials. GET RID OF INITIALS in your release. They have no value. You need a signature at the end of the contract and nothing else. The only value initials provide is to the plaintiff to make an argument that a place on the release that is not initialed should void the release or at least void that section of the release.
This case would probably have a different outcome in another jurisdiction.
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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Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90
Posted: April 23, 2017 Filed under: Idaho, Legal Case, Negligence | Tags: Causation, Minor, Negligence, Trampoline Leave a commentGriffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90
Seth Griffith, Plaintiff-Appellant, v. Jumptime Meridian, LLC, an Idaho Limited Liability Company, Defendant-Respondent.
Docket No. 44133-2016, 2017 Opinion No. 29
SUPREME COURT OF IDAHO
2017 Ida. LEXIS 90
April 10, 2017, Filed
PRIOR HISTORY: [*1] Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. Hon. Deborah A. Bail, District Judge.
DISPOSITION: The judgment of the district court is affirmed.
COUNSEL: Eric Clark, Clark & Associates, Eagle, argued for appellant.
William Fletcher, Hawley Troxell Ennis & Hawley LLP, Boise, argued for respondent.
JUDGES: EISMANN, Justice. Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.
OPINION BY: EISMANN
OPINION
EISMANN, Justice.
This is an appeal out of Ada County from a judgment dismissing an action brought against JumpTime Meridian, LLC, by Seth Griffith seeking damages for an injury he received while attempting a triple front flip when he was seventeen years of age. We affirm the judgment of the district court.
I.
Factual Background.
On January 11, 2014, seventeen-year-old Seth Griffith (“Plaintiff”) was seriously injured when he attempted a triple front flip into a pit filled with foam blocks (“foam pit”) at an indoor trampoline park owned and operated by JumpTime Meridian, LLC (“JumpTime”). Plaintiff went to the facility with his girlfriend and her younger brother and sister. Plaintiff initially played with the brother on trampolines for about ten or fifteen minutes, and [*2] then they went to an area where there were runway trampolines. Plaintiff spent about fifteen to twenty minutes doing front flips, back flips, and cartwheels on the runway trampolines, and he taught the brother to do a front flip. He then started showing off to the brother, doing various gymnastic tricks. He jumped up, did a back flip, jumped up, and did another back flip, and a female JumpTime employee, who was monitoring the foam pit area, told him it was pretty cool.
The facility had foam pits, one large (sixteen feet by eighteen feet) and one small (nine feet by sixteen feet). The large foam pit had twin trampolines that were each twelve feet long leading to it, and the small foam pit had a 58-foot-long trampoline runway leading to it.
Plaintiff’s girlfriend and her sister were near the large foam pit. He walked over to where they were and talked to them. While he was there, he jumped into the large foam pit a few times. He then spent about 45 minutes “kind of horsing around on both the runway trampoline and the foam pit and the twin trampolines.” After he did a double front flip into the small foam pit, the monitor came up to him and asked if he had ever done a double before. He [*3] answered that he had, and she said, “Oh, that was pretty sweet.” As he continued performing double front flips into the small foam pit, he noticed that doing them was easier than it used to be for him. He decided to try a triple front flip. When he attempted it, he did not rotate far enough and landed on his head and neck, suffering a cervical dislocation and fracture, which required a fusion of his C6 and C7 vertebrae.
Plaintiff filed this action alleging that JumpTime negligently caused his injury. He contended that because he was under the age of eighteen, JumpTime had a duty to supervise him. He had been intentionally landing the double front flips on his back in the pit. He testified that he did so “because you don’t want to land on your feet because you can bash your head against your knees.” JumpTime’s written policy manual instructed its employees with respect to the foam pit to “[f]ollow the rules outlined on the wall and continuously enforce it.” There were signs on the walls near the two pits that instructed customers to land on their feet. A large sign painted on the wall next to where the runway trampoline ended at the small foam pit said:
• Jump feet first into the pit
• Land on [*4] your feet and seat
• No landing on your head or Stomach
Just past the small foam pit was a sign titled “FOAM PIT RULES,” which included the admonition: “WHILE YOU JUMP: DO NOT land on head, neck or belly. NO DIVING; FEET FIRST.” A third sign located on the wall near the large foam pit was titled “FOAM PIT PATRON RESPONSIBILITY CODE,” and it included the admonition, “Jump and land on two feet.” Plaintiff contended that had the attendant told him to land on his feet, he would not have attempted the triple front flip.
JumpTime moved for summary judgment alleging that there was no negligence, based upon the opinion of an expert that industry standards permitted landing a front flip into a foam pit on one’s feet, buttocks, or back, and that there was no evidence of causation. In response, Plaintiff contended that the signs on the wall stating how to land in the foam pit established the standard of care and that because of the attendant’s failure to admonish him for landing incorrectly, he was not discouraged from attempting a more difficult maneuver like a triple front flip. The district court granted JumpTime’s motion for summary judgment, holding that Plaintiff had failed to produce evidence [*5] of negligence and causation. Plaintiff then timely appealed.
II.
Did the District Court Err in Granting JumpTime’s Motion for Summary Judgment?
When reviewing on appeal the granting of a motion for summary judgment, we apply the same standard used by the trial court in ruling on the motion. Infanger v. City of Salmon, 137 Idaho 45, 46-47, 44 P.3d 1100, 1101-02 (2002). We construe all disputed facts, and draw all reasonable inferences from the record, in favor of the non-moving party. Id. at 47, 44 P.3d at 1102. Summary judgment is appropriate only if the evidence in the record and any admissions show that there is no genuine issue of any material fact regarding the issues raised in the pleadings and that the moving party is entitled to judgment as a matter of law. Id.
The elements of common law negligence have been summarized as (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.” Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980). In this case, there were no facts in the record showing a causal connection between JumpTime’s alleged negligence and Plaintiff’s injury.
The issue of causation is why Plaintiff attempted the triple front flip. He did not tell [*6] anyone he was going to attempt it, nor is there any evidence indicating that the monitor knew or should have known that he would try a triple front flip. Plaintiff argues on appeal that he is “entitled to the reasonable inference that had JumpTime enforced its rules and interceded when [he] was landing improperly and dangerously on his back, [he] would not have felt emboldened and would never have attempted a triple flip.”
First, there is no evidence that it was dangerous to land on one’s back. Even Plaintiff testified that he believed it was safer because it avoided the risk of hitting his face with his knees.
Second, Plaintiff did not testify during his deposition that had the monitor admonished him to land on his feet that he would not have attempted the triple front flip, nor did he testify that the conduct of the monitor was part of that decision. He testified that he decided to attempt the triple front flip because completing the double front flips was easier than previously had been for him, that he was having to come out of his rotation earlier than he previously had to, and that he was confident he was in the air long enough to do a triple front flip, which would be exciting. [*7]
Plaintiff testified that performing the double front flips was easier than it previously had been for him.
Q. Well, tell me everything. Let’s just move in chronological order about what is happening and work up to the incident. So if you are at that point, then go ahead.
A. After about 45 minutes of just kind of horsing around on both the runway trampoline and the foam pit and the twin trampolines, I got onto the runway trampoline, plus the foam pit, and I kind of noticed I had been doing doubles easier than what I was normally used to, like I was just either spinning faster or getting higher. It was just easier than what I was accustomed to. So I decided to go for a triple.
He was asked why he attempted the triple front flip, and he did not answer that JumpTime was in any way responsible for that decision. He said that when doing double front flips he had to come out of his rotation earlier than he previously had to and he thought he had enough air to perform a triple front flip.
Q. Okay. So was the reason that you attempted this triple flip in the small foam pit just because it had a longer runway?
A. No. I had been doing doubles easier, like I was—I had to break from my rotation earlier [*8] than I previously would have to. So it was like I was having more time in the air to actually do the flips. So I kind of thought that I would be able to have enough air to do a triple.
He also stated that he was confident he could perform the triple front flip and was excited to try.
Q. Did you have any concerns about being able to do the triple without hurting yourself?
A. No. The time when I was about to do it I was pretty confident that I could.
. . . .
Q. Were you nervous at all before attempting the triple?
A. No. I was actually pretty excited about it.
Q. Why would you say that?
A. Just because, like I used to be an avid gymnastics person, so doing a new trick, like if I could—like if I added a 360 onto a front flip, I’d get pretty excited. If I did like an aerial for the first time, like I got excited. So new things kind of excited me.
Plaintiff’s testimony does not support an inference that JumpTime was in any way responsible for his decision to try the triple front flip. Therefore, the district court did not err in granting summary judgment to JumpTime based upon the lack of evidence regarding causation.
III.
Is Either Party Entitled to an Award of Attorney Fees on Appeal?
Both parties [*9] request an award of attorney fees on appeal pursuant to Idaho Code section 12-121..An award of attorney fees under that statute will be awarded to the prevailing party on appeal only when this Court is left with the abiding belief that the entire appeal was brought, pursued, or defended frivolously, unreasonably, or without foundation. McGrew v. McGrew, 139 Idaho 551, 562, 82 P.3d 833, 844 (2003); Benz v. D.L. Evans Bank, 152 Idaho 215, 231-32, 268 P.3d 1167, 1183-84 (2012). Because Plaintiff is not the prevailing party on appeal, he is not entitled to an award of attorney fees under that statute. VanderWal v. Albar, Inc., 154 Idaho 816, 824, 303 P.3d 175, 183 (2013). Although it is a close question, we decline to award attorney fees on appeal to JumpTime because we do not find that this appeal meets the requirements for such an award.
IV.
Conclusion.
We affirm the judgment of the district court, and we award Respondent costs, but not attorney fees, on appeal.
Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.
New Hampshire does not recognize more than one type of negligence, simple or ordinary negligence. Claims for gross negligence, say to void a release, do not exist.
Posted: February 6, 2017 Filed under: Case Analysis, New Hampshire, Release (pre-injury contract not to sue) | Tags: Go Karting, Gross negligence, Karting Association, Negligence, Public Policy Leave a commentSupreme Court outlines requirements for releases. to be successful including public policy and failure to read the release requirements.
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: John E. and Virginia A. Barnes
Defendant: New Hampshire Karting Association (NHKA), David E. Whitesell, Midway Raceway, Inc. d/b/a Bryar Motorsport Park (Bryar), the World Karting Association (WKA) and International Insurance Company (International)
Plaintiff Claims: negligence and gross negligence
Defendant Defenses: release
Holding: for the defendant
Year: 1986
The plaintiff went to a go kart event. He signed a pit pass which contained a release. While driving he hit another kart on the track that was disabled. There was no indication or warning of the disabled go-kart before the plaintiff hit it.
The plaintiff sued for ordinary and gross negligence. The lower court dismissed the plaintiff’s claims, and the plaintiff appealed.
New Hampshire has three courts; however, the lower two, Circuit and Superior handle different matters. Both the Circuit court and the Superior courts are trial courts so any appeal is to the New Hampshire Supreme Court.
Analysis: making sense of the law based upon these facts.
The plaintiff claimed the release was barred by public policy; the release was ambiguous and did not apply to the risks, not inherent in the sport. The plaintiff also argued the release did not cover gross negligence.
The New Hampshire Supreme Court first looked at releases in New Hampshire.
Exculpatory agreements call into conflict two tenets of the law. First, a party should be liable for the consequences of the negligent breach of a duty owed another. As this court stated in a recent case involving an amusement ride accident, the owner of a place of public amusement “must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent individual.” Failure to do so will result in liability for injuries proximately caused by the breach of duty.
However, parties may eliminate tort liability by contract.
Contraposed against this basic rule of tort law is the principle that, as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs. Under this rule, parties may bargain for various levels of risk and benefit as they see fit. Thus, a plaintiff may agree in advance that the defendant has no legal duty toward him and thereby assume the risk of injury arising from the defendant’s conduct.
Under New Hampshire law, a defendant must show the release does not contravene public policy, that no special relationship existed between the parties and there was no disparity of bargaining power.
A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power. Where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service, the defendant cannot by contract rid itself of its obligation of reasonable care.
Public policy, not identified as such, is held to include common carriers, innkeepers and public utilities. A go-kart operation is not a commercial transport for hire, a place to sleep or a public utility providing gas, electricity or such.
Disparity in bargaining power occurs when the defendant is a monopoly or where the plaintiff has no alternative but to deal with the defendant. “Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract; accordingly, courts refuse to enforce the agreement.”
Again, a go-kart facility is not a necessity such that the plaintiff had to negotiate for its life or substance.
Once the public policy argument is out of the way, the issue then becomes whether the plaintiff understood the basics of the agreement.
Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision. Furthermore, the plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement.
This contemplation must not cover the exact issues the plaintiff complains about, but covers a broad range of accidents or injuries the plaintiff may suffer.
Contracts are generally construed against the writer, in the case of a release, construed against the defendant.
…the contract must clearly state that the defendant is not responsible for the consequences of his negligence. As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.
The plaintiff argued he did not read the entire release; however, that does not invalidate the release. The court found he could have if he wanted, therefore, his argument failed based on his own actions.
There was no evidence, however, that Barnes was denied the opportunity to read the body of the release. “[H]aving failed to avail himself of that opportunity, yet gaining the admission to which his signature was a condition precedent, he cannot now complain that he had no notice of the import of the paper . . . he signed.”
Summing up the public policy argument made by the plaintiff failed as stated by the court
With these principles in mind, we now consider whether the release bars the plaintiff’s claims in this case. The first question is whether the release is contrary to public policy. The defendants do not fall within any of the commonly-recognized classes of persons charged with a duty of public service. The record indicates that the 1981 Enduro kart races at Bryar were organized by the NHKA, which is associated with the WKA and which manages its races in accordance with WKA rules and regulations. Although the defendants serve a segment of the public, we cannot say that Enduro kart racing is affected with a public interest. Provision of racing facilities is not a service of great importance to the public, nor is racing a matter of practical necessity.
Moreover, there was no substantial disparity in bargaining power among the parties, despite the fact that Barnes was required to sign the release in order to use the racetrack. The plaintiff was under no physical or economic compulsion to sign the release. Since the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength over Barnes or others who sought to participate in Enduro kart racing.
Thus the release was not barred by public policy arguments in New Hampshire.
The plaintiff then argued that the actions against the defendant were grossly negligent and cited cases from other jurisdictions to support its claim. The court simply stated:
These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. “[T]he doctrine of definitive degrees of negligence is not recognized as a part of our common law.
There is only one claim in New Hampshire for negligence no matter egregious the defendants’ actions.
The plaintiff then argued the release was only valid for a restricted area of the facility. However, applying the common meaning to the language in the release the court found the language covered the area where the accident occurred.
We find that participation in practice laps on the racing surface comes within the terms of the release. The restricted areas are defined in terms of physical spaces, not in terms of function, and the reference to “enter[ing] for any purpose” contemplates that the racing surface is a restricted area during practice runs and during the actual race. Although the plaintiff testified that he had practiced on occasion without signing a release, he signed the release prior to taking a practice lap on the day in question. One can contemplate that racers are exposed to a variety of hazards while in the racing arena regardless of whether the actual race is taking place. We believe that the practice run taken by Barnes in preparation for the race later that day may reasonably be construed as part of “participat[ion] in the event.” We therefore uphold the master’s conclusion that the language of the agreement was not ambiguous and that the release applied to practice laps.
A final argument was made that the release was an “illegal tying arrangement.” Meaning the release and the insurance coverage were illegally tied together the plaintiff could not take one without taking the other. The court found this was not the case because no evidence was presented that insurance was a separate charge after admissions.
The trial court decision was affirmed.
So Now What?
New Hampshire law is fairly standard on how it looks at release law, even though the particular language used might vary. What is significant is the Supreme Court has held that New Hampshire does not recognize gross negligence.
Not being able to plead gross negligence limits the ability of the plaintiff to void a release or argue for greater damages. Normally a jury finding the defendant acted grossly negligent includes greater damages, sometimes punitive damages.
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It is not a perfect world and perfection is not required of camp counselors in New York.
Posted: January 30, 2017 Filed under: Minors, Youth, Children, New York, Summer Camp | Tags: Counselor, Horse Play, Negligence, Summer Camp Leave a commentThe camp counselor’s reaction when a large camper jumped on his back was not negligence. The injury the plaintiff received was from his own actions, not from the horseplay of others.
State: New York, Supreme Court of New York, Appellate Division, Third Department
Plaintiff: Benjamin W. Gibbud, an Infant, by Melissa H. Gibbud, His Parent, et al.,
Defendant: Camp Shane, Inc.
Plaintiff Claims: Negligence and Negligent Supervision
Defendant Defenses: No negligence
Holding: For the defendant
Year: 2006
This is a simple case. When a large, almost as large as the counselor, camper jumps on the counselor’s back, the counselor’s reaction as long as not overly violent or extreme, is not negligence.
In this case it was raining and the counselor and campers were in their cabin. The campers were baiting one another and one camper who was only 20 pounds lighter than the 335 counselor and one inch taller jumped on the counselor’s back. The counselor shrugged him off and either the camper hit the ground breaking his ankle or broke his ankle when the counselor shoved the camper.
The camper and his mother sued. The trial court granted the defendant summary judgment and the plaintiff’s appealed.
Analysis: making sense of the law based on these facts.
The court set out the various New York Laws affecting this case. New York law states the duty of care owed children by persons supervising them is one “is that which a reasonably prudent parent would observe under comparable circumstances.”
Horseplay is always found around groups of kids and is associated with camps. Horseplay is “only to be discouraged when it becomes dangerous.”
Moreover, a parent, teacher or other person entrusted [*867] with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline
Moreover the court found the horse play which preceded the event giving rise to the injury of the plaintiff had nothing to do with the plaintiff getting injured. Horseplay was not the cause of the plaintiff’s injury. The case of the plaintiff’s injury was the plaintiff jumping on the back of the counselor, “it was the manner in which he did so, his own impulsive and reckless act of grabbing Wendorf [the counselor] from behind, that led to his injury.”
Given that Wendorf did not know who had suddenly jumped on his back, his reaction to being blindsided and having his arms pinned to his sides in a bear hug by the physically imposing plaintiff raises no issue of his inappropriate or unreasonable use of force.
The court found there was no duty or breach of duty and also found that the injury was not a result of any alleged breach of duty. Three of the four requirements to prove negligence were not met. The decision of the trial court was upheld.
So Now What?
It is also nice to see a case where common sense is obvious in the reasoning of the case. Kids will be kids and whenever there is a group of kids, there will be fooling around. Until the kidding and horse play get dangerous, there is no duty in New York to stop it.
On top of that, when you participate in horse play and get hurt, you can’t blame anyone but yourself.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2017 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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