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Gross Negligence: It exists, now days seemingly everywhere; can you fight it with paperwork?

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

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Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

Posted: May 6, 2016 | Author: Recreation Law | Filed under: Illinois, Snow Tubing | Tags: Defective Product, Negligence, Negligent Product, Product liability, Snow Tubing, tubing hill | Leave a comment

Buckel v. Tube Pro Inc., 2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

Susan Buckel, Plaintiff-Appellant, v. Tube Pro Inc., Defendant-Appellee.

No. 1-15-0427

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

2016 IL App (1st) 150427-U; 2016 Ill. App. Unpub. LEXIS 638

March 31, 2016, Decided

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 13 L 116. The Honorable Kathy M. Flanagan, Judge, presiding.

DISPOSITION: Affirmed.

JUDGES: JUSTICE GORDON delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

OPINION BY: GORDON

OPINION

JUSTICE GORDON delivered the judgment of the court.

Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

ORDER

[*P1] Held: Where plaintiff did not and cannot produce the allegedly defective snow tube involved in her snow tubing accident or produce any photographs of the snow tube itself, and where the subject snow tube was never retrieved or examined for defects, plaintiff cannot establish a genuine issue of material fact that defendant was the manufacturer and thus the trial court did not err in granting summary judgment in favor of defendant.

[*P2] Plaintiff Susan Buckel brought this products liability action based on a negligence theory against defendant Tube Pro Inc., seeking damages for injuries she sustained during a snow tubing accident at the Villa Olivia ski facility in Bartlett, Illinois, on January 17, 2011. Plaintiff alleges that she was injured as a result of a defective snow tube manufactured by defendant. Defendant moved [**2] for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer of the snow tube in question. Defendant further argued that, without the claimed defective snow tube, plaintiff could not prove the necessary elements to establish a prima facie case of products liability against defendant. The trial court granted defendant’s motion, and plaintiff now appeals.

[*P3] For the reasons that follow, we affirm the trial court’s grant of summary judgment in favor of defendant.

[*P4] BACKGROUND

[*P5] I. Pleadings

[*P6] A. Complaint

[*P7] On January 4, 2013, plaintiff filed a complaint against defendants: (1) Daniel Corrado; Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia; and Villa Olivia¹; (2) Tube Pro; (3) “Unknown Snow Tube Manufacturer”; and (4) “Unknown Owners and Non-Record Claimants.”

1 On July 24, 2013, the trial court granted plaintiff’s motion to voluntary dismiss without prejudice, Daniel Corrado, Greater Chicago Distribution Corporation, individually and doing business as Villa Olivia. The record does not contain a copy of plaintiff’s motion, but includes the trial court’s order [**3] granting it.

[*P8] In her complaint, plaintiff made the following allegations:

[*P9] Plaintiff alleged that she was at Villa Olivia on January 17, 2011, and purchased a ticket to snow tube on the premises of Villa Olivia. Villa Olivia provided her with a snow tube to use, which was manufactured by defendant. As she descended down the hill using the snow tube provided by Villa Olivia, a sharp object stuck out of the tube, dug into the ground, and caused the snow tube to stop on the hill. While her snow tube was stopped on the hill, she was struck by another snow tube from behind and was injured. Plaintiff alleged her snow tube was defective.

[*P10] Only count II of plaintiff’s complaint, which is entitled “Negligence,” is directed at defendant. Plaintiff alleged that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, and sold by defendant. Plaintiff further alleged that defendant negligently designed, manufactured, distributed, and sold the snow tube equipment without appropriate safeguarding and an adequate warning label. Plaintiff also contended that defendant failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube [**4] safely, or to properly inform or instruct the purchaser of the snow tube’s use. Plaintiff alleged that defendant negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in her accident. Plaintiff claimed that, as a result of defendant’s “careless and negligent acts and omissions,” she “was severely and permanently injured both internally and externally.”

[*P11] B. Answer

[*P12] On April 18, 2013, defendant filed its “Answer and Affirmative Defense” to plaintiff’s complaint. Defendant admitted that it manufactured snow tubes, including certain snow tubes used at Villa Olivia and that, on or before January 17, 2011, it engaged in the business of designing, manufacturing, assembling, distributing, and selling snow tubes. Defendant answered that it had no knowledge regarding the truth or falsity of plaintiff’s statement that the snow tube she used at Villa Olivia was designed, manufactured, assembled, distributed, or sold by defendant. Defendant denied it had negligently designed, manufactured, distributed, and sold snow tube equipment without appropriate safeguarding and an adequate warning label. Defendant also denied plaintiff’s allegation [**5] that it failed to adequately warn users of the dangers of the snow tube, to design and manufacture the snow tube safely, or to properly inform or instruct the purchaser of the snow tube’s use. Defendant also denied that it negligently tested and inspected or failed to test, inspect, and heed the test results of the subject snow tube involved in plaintiff’s accident.

[*P13] Defendant also asserted the affirmative defense of comparative negligence, claiming plaintiff was negligent in failing to observe and avoid the snow tube which allegedly struck her and was negligent in failing to move from the middle of the hill, when she knew, or in the exercise of ordinary care, should have known, that other snow tubes were descending down the hill. Defendant also claimed plaintiff was negligent in failing to properly inspect the subject snow tube prior to riding in it and was negligent in failing to keep a proper lookout. Defendant also alleged plaintiff was inattentive and unobservant to surrounding conditions and was the sole proximate cause of her alleged injuries and damages.

[*P14] C. Plaintiff’s Reply

[*P15] In response to defendant’s affirmative defense of comparative negligence, plaintiff denied she was negligent [**6] in failing to observe and avoid the snow tube which allegedly struck her or negligent in failing to move from the middle of the snow tube hill. Plaintiff also denied that she was negligent in failing to properly inspect the subject snow tube prior to riding it or that she was negligent in keeping a proper lookout. Plaintiff denied she was inattentive or unobservant to surrounding circumstances.

[*P16] D. Amended Complaint and Answer

[*P17] On July 8, 2013, plaintiff filed an amended complaint against defendant, naming as additional defendants “Village of Bartlett and the Bartlett Park District.”² The allegations of count II, which were directed at defendant, remained substantially the same.

2 On October 28, 2013, plaintiff filed a motion to voluntarily dismiss, without prejudice, the Village of Bartlett, which the trial court granted on November 1, 2013. 735 ILCS 5/2-1009 (West 2010). Additionally, on November 1, 2013, the trial court granted defendant Bartlett Park District’s section 2-619(a)(5) motion to dismiss count V of plaintiff’s amended complaint, without prejudice. 735 ILCS 5/2-619(a)(5) (West 2010). Tube Pro is the only remaining defendant on appeal.

[*P18] On July 12, 2013, defendant filed its “Answer and Affirmative Defense to Plaintiff’s Amended Complaint,” [**7] which asserted the same affirmative defenses and denied the same allegations.

[*P19] On March 25, 2014, defendant filed a motion for leave to file an amended answer and affirmative defenses, which included the defense of comparative negligence pled in its prior answer plus additional affirmative defenses. Defendant raised the additional affirmative defense of joint and several liability and further contended that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause of action against defendant. Defendant also raised as an affirmative defense that the negligent act of the snow tube rider who struck plaintiff was an intervening or superseding cause of her accident, which barred recovery against defendant. The trial court granted the motion on March 25, 2014.

[*P20] On April 30, 2014, plaintiff filed a motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.³

3 There is no order in the record indicating whether the trial court granted plaintiff’s motion for leave to file answers to defendant’s amended affirmative defenses to plaintiff’s amended complaint.

[*P21] While plaintiff admitted that [**8] she paid for a ticket to engage in snow tubing at Villa Olivia, she denied defendant’s allegation that, by purchasing the snow tubing ticket, she agreed to the terms and conditions of the exculpatory clause contained on the ticket. Plaintiff denied the allegation that the parties to the exculpatory clause intended that the terms and conditions of the exculpatory clause apply to defendant. Plaintiff further denied that defendant was a thirdparty beneficiary of the exculpatory clause and that the exculpatory clause included on the snow tubing ticket plaintiff purchased from Villa Olivia barred plaintiff’s cause against defendant.

[*P22] As to defendant’s additional affirmative defense of joint and several liability, plaintiff denied the allegation that the sole proximate cause of plaintiff’s accident was the negligent acts or omissions, or intentional, reckless, willful, and wanton acts or omissions, of other persons or entities not presently parties to the lawsuit, including, but not limited to, Bartlett Park District and the snow tube rider who struck her. Plaintiff further denied defendant’s allegation that, pursuant to section 2-1117 of the Illinois Code of Civil Procedure, any fault, which it specifically denied, was less than 25% of the [**9] total fault. 735 ILCS 5/2-1117 (West 2010).

[*P23] Plaintiff denied defendant’s affirmative defense that the negligent act or omission of the snow tube rider who struck her was an intervening or superseding cause of her accident, which barred recovery against defendant. Plaintiff also denied defendant’s allegation that the intervening or superseding negligent acts or omissions of the snow tube rider who struck her barred her recovery against defendant.

[*P24] On May 23, 2013, defendant filed answers to plaintiff’s interrogatories. Defendant named its president and co-founder, William Pawson, and its cofounder, Annie Pawson, as witnesses who would testify to the design, manufacture, and sale of snow tubes by defendant. Defendant also stated that William Pawson and Annie Pawson would testify that defendant manufactures snow tubes for sale and does not inspect or maintain products subsequent to sale to a customer.

[*P25] Plaintiff filed answers to defendant’s interrogatories.⁴ Plaintiff named certain of defendant’s employees as witnesses who would testify regarding their knowledge of the occurrence alleged in her complaint, including their observations and the policies of defendant. The witnesses included William Pawson, Annie [**10] Pawson, Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.⁵

4 Exhibit “A” to defendant’s motion for authorization regarding mental health records, subpoenas, and testimony contains plaintiff’s answers to defendant’s interrogatories, but it does not provide a date of filing.

5 The record does not contain a copy of the depositions of Victor Clark, Rick Root, Jennifer Huras, and Abby Pawson.

[*P26] On December 10, 2013, the trial court ordered party depositions to be completed by January 28, 2014. The depositions of William Pawson⁶ and Annie Pawson⁷ were discovery depositions.

6 Plaintiff attached an excerpt of William Pawson’s deposition in her response to defendant’s motion for summary judgment, and defendant attached the entire transcript of William Pawson’s deposition in its motion for summary judgment.

7 Plaintiff attached the entire transcript of Annie Pawson’s deposition as Exhibit “D” to her response to defendant’s motion for summary judgment.

[*P27] II. Motion for Summary Judgment

[*P28] A. Defendant’s Motion

[*P29] On September 15, 2014, defendant moved for summary judgment, claiming that plaintiff provided insufficient evidence to raise a genuine issue of material fact regarding the identity of the manufacturer [**11] of the snow tube in question. In its motion, defendant claimed that, because the snow tube was never inspected or retained after the accident, plaintiff could not prove the necessary elements to establish a prima facie case of product liability against defendant.

[*P30] In support of its motion for summary judgment, defendant relied on invoices indicating that Villa Olivia purchased snow tubes from two different companies: (1) defendant; and (2) Tough Tube Manufacturing Inc. (Tough Tube). An invoice showed that in September 2000, Villa Olivia purchased 100 snow tubes from Tough Tube. Another invoice showed that in December 2012, Villa Olivia purchased 14 refurbished snow tube covers from defendant. The invoices also showed that in 2008, Villa Olivia purchased 5 red snow tubes, 1 navy blue snow tube, and 10 refurbished snow tube covers from defendant. The invoices showed that in 2009, Villa Olivia purchased 10 royal blue snow tubes and 36 refurbished covers from defendant.

[*P31] Defendant attached the deposition of plaintiff, who testified that the colors of the tubes at Villa Olivia on the date of her accident were “red, green, and blue.” Defendant also relied on the deposition of plaintiff to [**12] establish that the snow tube she used at the time of her accident was red. Plaintiff testified, “I believe it was red.”

[*P32] Defendant also attached the deposition transcript of William Pawson, who testified that the snow tubes purchased by Villa Olivia from defendant were red and blue. William Pawson testified that he believed “those [were] the only two colors that we sold them.” Defendant also relied on William Pawson’s testimony that Villa Olivia purchased Tough Tube snow tubes that were “a mix of red, blue, maybe some green and plum, I would imagine, but red and blue for sure.” Defendant argued that the evidence showed that defendant was just one of the possible manufacturers which may have sold the red snow tube in question.

[*P33] William Pawson also testified that defendant never experienced any reports that its snow tubes were defective. William Pawson testified that he was not sure “how” or “why” a protruding object could come out of plaintiff’s snow tube. He testified that: “There is just the inner tube. It’s the only accessory item inside the actual tube cover. And the valve is welded to the tube itself. So I don’t understand. I’m not sure how that could occur.”

[*P34] Defendant further relied [**13] on plaintiff’s deposition that the snow tube involved in her accident did not have a plastic bottom. Plaintiff testified that the type of material she observed on the bottom of her snow tube “[was] not plastic,” but a normal inner tube material, which she assumed was rubber. Defendant also referenced William Pawson’s testimony to show that the bottom of defendant’s snow tubes were plastic. He testified that one of defendant’s component parts for its snow tubes is a “plastic bottom.”

[*P35] Defendant cited plaintiff’s deposition to show that she could not say for certain who the manufacturer of the snow tube was. Plaintiff testified that “[she] did not look at the markings on the tube” she used at the time of her accident and, therefore, was uncertain as to its manufacturer. Plaintiff testified, while looking at photographs that showed different snow tubes in use at Villa Olivia “before her accident,” she could not say for certain that they showed the name of defendant. Plaintiff testified:

“I can’t tell you the exact letters; but I can tell you how when you blow it up that it looks like two words, okay. And I can kind of make out certain letters; but could I clearly say it was a T or a P or [**14] a B or what, no.”

Plaintiff also testified she did not take any photographs of the exact snow tube involved in her accident.

[*P36] In sum, defendant argued that it was entitled to summary judgment as a matter of law because the snow tube involved in plaintiff’s accident was no longer available and, therefore, plaintiff could not identify the manufacturer of the snow tube nor support a reasonable inference that defendant manufactured the snow tube she used at the time of her tubing accident. In addition, defendant argued plaintiff could not prove a prima facie case without the allegedly defective snow tube.

[*P37] B. Plaintiff’s Response

[*P38] On December 1, 2015, plaintiff filed a response to defendant’s motion for summary judgment. In her response, plaintiff argued both: (1) that defendant was the manufacturer of the plaintiff’s defective snow tube; and (2) that genuine issues of material fact existed as to whether defendant’s defective snow tube was the proximate cause of plaintiff’s injuries.

[*P39] Plaintiff alleged that her snow tube was defective. Attaching excerpts of her deposition transcript, plaintiff described the defect as follows:

“DEFENDANT’S ATTORNEY: When is the first occasion you had to look [**15] at the tube after the accident?”

PLAINTIFF: The minute I came to a stop.

DEFENDANT’S ATTORNEY: While you were on the hill?

PLAINTIFF: While I’m on the hill.

DEFENDANT’S ATTORNEY: What did you see?

PLAINTIFF: I wanted to know why I was stuck. So I lifted up the tube, and I could see a 5-inch slash and this hard spiky thing sticking out of the tube *** It was a solid, a sharp object.”

Plaintiff further described the defect as follows:

“DEFENDANT’S ATTORNEY: Before the operator came up to you and upon you, did you look at the tube?

PLAINTIFF: Yes.

DEFENDANT’S ATTORNEY: And this–whatever you observed on the bottom of the tube, was it the material of the bottom of the tube?

PLAINTIFF: It looked like the insides of the tube.

DEFENDANT’S ATTORNEY: Well, the tube you told me was kind of like, in your mind at least, a standard rubber inner tube, correct?

PLAINTIFF: Well, I kind of remember–it could have been–I don’t recall the exact material of the tube, the outside of the tube; but the frozen object looked like it was coming out of the tube.

DEFENDANT’S ATTORNEY: This frozen object, was it part of the material of the tube or some foreign object?

PLAINTIFF: I thought maybe it was a metal piece or something, [**16] and it wasn’t. It was the innards of the tube, and I couldn’t even move it with my glove. It was shaped as if it was, like, a knifish form coming out.

DEFENDANT’S ATTORNEY: And how long was this shape?

PLAINTIFF: I know that the slash in the tube was about that big (indicating), so 5 inches, and then this item was coming out of it.”

[*P40] Plaintiff also attached the deposition transcript of Villa Olivia employee, Michael Conrardy, who worked on the snow tube hill for multiple winter seasons. Conrardy testified that during the 2010-2011 winter season, he found one snow tube in their “tube shack” that had a crack in it. Conrardy testified:

“DEFENDANT’S ATTORNEY: Did you ever become aware of cracking, cracks in the bottom of any snow tubes?

CONRARDY: Yeah, that was one thing that I noticed when I was working. I was bringing out the tubes out of the tube shack in the morning and there was quite a decent crack in the bottom.”

Conrardy further described the snow tube as follows:

“PLAINTIFF’S ATTORNEY: In as much detail as you can, can you describe to me first where the slit was?

CONRARDY: It was like the side. I don’t remember if it was the side near to where the rope connected or not, but it was just [**17] on the general like circumference of it, you know, and it was like a rounded slit that went–it was about eight inches long, and it wasn’t protruding in. It was more protruding out.

PLAINTIFF’S ATTORNEY: Okay.

CONRARDY: So if someone went down the hill, as a safety issue, if it was protruding out and they caught an edge they could just flip ***.”

[*P41] Plaintiff highlighted Conrardy’s testimony where he stated that “It would have caught snow and that’s what I’m saying. It wouldn’t protrude into the tube where it could hurt the person, like their bottom. It would literally protrude down and out.” Conrardy further stated that the slit “was on the bottom plastic part like right at the edge.” Conrardy recalled the tube with the slit “was just one of the ordinary tubes.”

[*P42] Plaintiff also attached the deposition transcript of Edward Jorens, Villa Olivia superintendant of golf and skiing, who was involved in the initial procurement and purchase of snow tubes for the facility. Jorens testified that “once in a while there’s cracks” in the plastic bottoms of the snow tubes. Jorens also testified that cracks “bigger than 2 or 3 inches or so” on the bottom of the snow tubes would “[t]o a certain degree” affect [**18] the speed of the tube going down the hill. Jorens also testified that he discussed the cracking at the bottom of the tubes with defendant and that “Annie [Pawson] [was] usually the person I talked to from Tube Pro.”

[*P43] In her response, plaintiff attached the deposition of Annie Pawson, who testified that defendant receives yearly complaints “in general” from customers about the bottom of their snow tubes being cracked. Annie Pawson testified that she has personally seen a bottom of a defendant snow tube being cracked and described it “as a slit, like a little slit, a scoring, just a little slit.” Annie Pawson also testified, “I don’t recall specifically my customer mentioning cracks, per se. I just recall them requesting that we refurbish some of their old stock that they had purchased in the past.”

[*P44] Plaintiff further claimed in her response that it was highly unlikely that Tough Tubes were being used at Villa Olivia at the time of her accident. In support of this claim, plaintiff attached testimony by Jorens, who testified that “an average of four or five” snow tubes were stolen per year. Jorens further testified:

“DEFENDANT’S ATTORNEY: With regard to the 100 tubes purchased from Tough [**19] Tube in September 2000, by the time you retired in December of 2010, do you know how many of those tubes were still left at Villa Olivia?

JORENS: Not very many. I’m sure of that.

DEFENDANT’S ATTORNEY: Why do you say that?

JORENS: Well, in other words, every year we’d send them back to get refurbished. Probably anywhere from I’m guessing 10, 10 of the tubes.”

DEFENDANT’S ATTORNEY: Did you send tubes to be refurbished to any company other than Tube Pro?

JORENS: No.”

[*P45] Plaintiff also relied on Jorens’s testimony to show that more defendant snow tubes were being used at Villa Olivia at the time of her accident than Tough Tube snow tubes. Jorens testified that, from 2000 to when he retired in 2010, Villa Olivia continued to purchase snow tubes from defendant. Jorens did not believe Villa Olivia purchased snow tubes from any other company from 2000 to 2010. Plaintiff also attached invoices showing that, from 2002 to 2009, Villa Olivia purchased 60 refurbished snow tube covers from defendant. The invoices also show that Villa Olivia purchased “5 red snow tubes,” “1 double rider snow tube,” “10 royal blue snow tubes,” and 27 inner tubes from defendant in the same period. Plaintiff also relied on [**20] Annie Pawson’s testimony and a “Customer Sales Ordering Info Sheet” to show that, in November 2002, defendant purchased 30 defendant snow tubes with Pepsi logos on them. Pawson testified as follows:

“PLAINTIFF’S ATTORNEY: Okay. And then the number of tubes, 30 and it has Pepsi. Do you know what the word next to Pepsi–is that tubes?

ANNIE PAWSON: Tubes, yes sir.

PLAINTIFF’S ATTORNEY: Is that a purchase by Villa Olivia, 30 new Pepsi tubes?

ANNIE PAWSON: Yes, it is.”

[*P46] Plaintiff also argued in her reply that “she was not an expert on materials or plastics” and therefore, her testimony about how her tube did not have a plastic bottom was immaterial in determining the identity of the manufacturer. Plaintiff relies on Conrardy’s testimony to show that he, too, was uncertain as to what the material of the tube bottoms were. Plaintiff points out that Conrardy testified that he believed the bottom of the tube was made of rubber, but then said it could be made of plastic after defendant counsel “raised the possibility of the bottom being plastic.” Conrardy testified:

“DEFENDANT’S ATTORNEY: And is it possible that the bottom may have been plastic as opposed to rubber, if you know?

CONRARDY: Actually, [**21] yeah, that’s a good point. I could see it being plastic because it just seemed more hard and thicker than the inside, so that actually makes sense because the inside was more cushiony than the bottom.”

[*P47] Plaintiff also attached an excerpt of William Pawson’s deposition transcript where he described Tough Tube and defendant as both having plastic bottoms. Pawson testified that they both had the “same sewing design premise whereby you have a sewn canvas top that’s pleated into the plastic bottom with the seatbelt based trim.”

[*P48] Finally, in her response, plaintiff claimed that she could still prove a prima facie case without the defective snow tube because the defect at issue was known to defendant.

[*P49] C. Trial Court’s Ruling

[*P50] On January 21, 2015, the trial court granted defendant’s motion for summary judgment. In its five-page memorandum opinion, the trial court held that defendant was entitled to summary judgment because “[p]laintiff [could not] establish, or even raise a question of fact that, defendant was the manufacturer of the subject snow tube.” The trial court noted that the “subject snow tube [was] no longer in existence” and, therefore, plaintiff could not “meaningfully identify the specific [**22] snow tube” that “she rode on the day of the accident.” The trial court stated that: “[n]either the Plaintiff nor any other evidence in the record can identify anything about the subject snow tube which distinguishes it from others in such a way that a reasonable inference can be made that defendant was the manufacturer of it.” The trial court found:

“[T]he evidence does not show that the specific defective condition complained of-that the tube bottom contained a 4 to 5 inch hard and sharp protrusion poking through a 5 inch slash which caused the tube to completely stop while going down the hill was known to be a common defect in a Tube Pro snow tube.”

The trial court reasoned: “The circumstantial evidence here may raise a possibility that defendant was the manufacturer of the snow tube, but it does not justify an inference of a probability that it was the manufacturer.” (Emphasis in original.) Based upon the foregoing, the trial court found that defendant was entitled to summary judgment.

[*P51] On February 12, 2015, plaintiff filed a notice of appeal, and this appeal followed.

[*P52] ANALYSIS

[*P53] In this direct appeal, plaintiff appeals the trial court’s grant of summary judgment in favor of defendant. Plaintiff argues [**23] that the evidence demonstrates a genuine issue of material fact about whether defendant was the manufacturer of the snow tube that caused her injuries. For the following reasons, we affirm the trial court’s grant of summary judgment.

[*P54] I. Standard of Review

[*P55] Summary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving party, indicate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). When determining if the moving party is entitled to summary judgment, the court construes the pleadings and evidentiary material in the record strictly against the movant. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 262 Ill. Dec. 815 (2002). We review a trial court’s decision on a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). De novo consideration means the reviewing court performs the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 350 Ill. Dec. 63 (2011).

[*P56] “Summary judgment is a drastic measure and should only be granted if the movant’s right to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. “Mere speculation, conjecture, or guess is insufficient to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328, 722 N.E.2d 227, 242 Ill. Dec. 738 (1999). The party [**24] moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624, 872 N.E.2d 431, 313 Ill. Dec. 448 (2007). The movant may meet its burden of proof either “by affirmatively showing that some element of the case must be resolved in its favor” or by “‘establishing that there is an absence of evidence to support the nonmoving party’s case.'” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). To prevent the entry of summary judgment, the nonmoving party must present a bona fide factual issue and not merely general conclusions of law. Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 670, 601 N.E.2d 1347, 176 Ill. Dec. 649 (1992)). Therefore, while the party opposing the motion is not required to prove her case at the summary judgment stage, she must provide some factual basis to support the elements of her cause of action. Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036, 911 N.E.2d 1144, 331 Ill. Dec. 914 (2009); Ralston v. Casanova, 129 Ill. App. 3d 1050, 1059, 473 N.E.2d 444, 85 Ill. Dec. 76 (1984). On a motion for summary judgment, the court cannot consider any evidence that would be inadmissible at trial. Brown, Udell & Pomerantz, Ltd. v. Ryan, 369 Ill. App. 3d 821, 824, 861 N.E.2d 258, 308 Ill. Dec. 193 (2006). Thus, the party opposing summary judgment must produce some competent, admissible evidence which, if proved, would warrant entry of judgment in her favor. Brown, Udell & Pomerantz, 369 Ill.App.3d at 824. Summary judgment is appropriate if the nonmoving party cannot establish an element of her claim. Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368, 851 N.E.2d 626, 303 Ill. Dec. 439 (2006).

[*P57] We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis, and even if the trial court’s reasoning was incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).

[*P58] II. Plaintiff’s [**25] Claim Against Defendant

[*P59] Plaintiff sued defendant under a products liability claim based on a theory of negligence. Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 89, 828 N.E.2d 1128, 293 Ill. Dec. 630 (2005) (discussing the differences between a products liability case based on a negligence theory and a strict products liability case). Plaintiff alleged that defendant committed one or more of the following careless and negligent acts or omissions: (1) designed, manufactured, distributed and sold the snow tube equipment without appropriate safeguarding and an adequate warning label; (2) failed to adequately warn users of the dangers of the snow tube; (3) failed to design and manufacture the snow tube safely; (4) failed to properly inform or instruct the purchaser of the snow tube’s use; and (5) negligently designed, manufactured, tested, inspected (or failed to test and inspect), and heeded the test results of the subject snow tube involved in her accident.

[*P60] “A product liability claim [based] in negligence is concerned with both defendant’s fault and the condition of the product.” Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 923, 871 N.E.2d 82, 312 Ill. Dec. 682 (2007) (citing Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 117, 454 N.E.2d 197, 73 Ill. Dec. 337 (1983)). To succeed in a products liability claim based on negligence, a plaintiff must prove: (1) the existence of a duty; (2) a breach of that duty; (3), an injury that was proximately caused [**26] by that breach, and (4) damages. Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 82, 955 N.E.2d 1138, 353 Ill. Dec. 327 (citing Heastie v. Roberts, 226 Ill. 2d 515, 556, 877 N.E.2d 1064, 315 Ill. Dec. 735 (2007)). “‘A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses.'” Sobczak , 373 Ill. App. 3d at 923 (quoting Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 433, 764 N.E.2d 35, 261 Ill. Dec. 744 (2002)). “A plaintiff must show that the manufacturer knew or should have known of the risk posed by the design at the time of the manufacture to establish that the manufacturer acted unreasonably based on the foreseeability of harm.” Sobczak v. General Motors Corp., 373 Ill. App. 3d at 923 (citing Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 255, 864 N.E.2d 249, 309 Ill. Dec. 383 (2007)). Moreover, in a products liability action asserting a claim based in negligence, “[t]he plaintiff must show that the manufacturer breached his duty to design something safer for the user because the quality of the product in question was insufficient.” Blue, 345 Ill. App. 3d at 463 (citing Rotzoll v. Overhead Door Corp., 289 Ill. App. 3d 410, 419, 681 N.E.2d 156, 224 Ill. Dec. 174 (1997)).

[*P61] Most importantly, “the plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product.” Zimmer v. Celotex Corp., 192 Ill. App. 3d 1088, 1091, 549 N.E.2d 881, 140 Ill. Dec. 230 (1989) (citing Schmidt v. Archer Iron Works, Inc., 44 Ill. 2d 401, 405-06, 256 N.E.2d 6 (1970), cert. denied 398 U.S. 959, 90 S. Ct. 2173, 26 L. Ed. 2d 544). While the plaintiff may prove these elements by direct or circumstantial evidence, “liability cannot be based on mere speculation, guess, or conjecture.” Zimmer, 192 Ill. App. 3d at 1091. Therefore, when circumstantial evidence is relied on, the circumstances must justify an inference of probability as distinguished from mere possibility.” (Emphasis added.) Naden v. Celotex Corp., 190 Ill. App. 3d 410, 415, 546 N.E.2d 766, 137 Ill. Dec. 821 (1989); Mateika v. LaSalle Thermogas Co., 94 Ill. App. 3d 506, 508, 418 N.E.2d 503, 49 Ill. Dec. 649 (1981); Zimmer, 192 Ill. App. 3d at 1091.

[*P62] III. Parties’ Arguments

[*P63] A. [**27] Plaintiff’s Arguments

[*P64] On appeal, plaintiff claims that the trial court erred in granting defendant’s motion for summary judgment because she raised a genuine issue of material fact about whether defendant was the manufacturer of the snow tube. Plaintiff argues that, since the court is to consider the evidence strictly against defendant and liberally in favor of her, summary judgment was not a proper disposition here. Plaintiff argues that the record, including invoices and witness testimony, shows that fair minded persons could draw different conclusions about whether defendant was the manufacturer.

[*P65] Specifically, plaintiff argues that according to the testimony of Jorens, Villa Olivia’s superintendent of golf and skiing, four to five snow tubes were stolen each year between 2000 to 2011 and that the majority of defendant snow tubes purchased by Villa Olivia occurred in 2008 and 2009. According to plaintiff, this figure equates to potentially 44 to 55 Tough Tubes being stolen prior to plaintiff’s injury. Plaintiff also relies on invoices that show Villa Olivia purchased 60 refurbished snow tube covers from defendant. Plaintiff argues that, given the refurbishment of these 60 snow tubes [**28] and the approximately 44 to 55 Tough Tubes stolen each year between 2000 to 2011, it was highly unlikely that Tough Tubes were still being used at Villa Olivia at the time of plaintiff’s accident. Plaintiff also relies on the testimony of Jorens to show that more defendant snow tubes than Tough Tube snow tubes were being used at Villa Olivia in January 2011.

[*P66] Plaintiff also claims that witness testimony raises questions of material fact as to whether the defect identifies defendant as the subject manufacturer. Plaintiff claims that defendant was aware of alleged defects in its snow tubes at Villa Olivia prior to her accident. Annie Pawson testified that she had observed defective defendant snow tubes before and that Villa Olivia employee Conrardy described the defective snow tube he observed as having a protruding crack. Additionally, plaintiff relies on her own testimony when she described the alleged defect “like a knife had gone through the ice, sharp object had gone through the ice.” Jorens testified that he discussed the cracking plastic defect with defendant, and that the plastic cracking would decrease speed on a hill. Plaintiff also observes that, prior to January 2011, defendant [**29] had received yearly complaints regarding the cracking of the plastic bottoms.⁸ Based on this evidence, plaintiff argues that she can prove a prima facie case without the snow tube because the defect at issue was known to defendant.

8 In her brief, plaintiff claims that, prior to January 2011, defendant received yearly complaints regarding the plastic bottoms cracking, without citing to the record.

[*P67] B. Defendant’s Arguments

[*P68] Defendant, on the other hand, argues that the evidence presented to the trial court shows that plaintiff could not identify anything about the subject snow tube which distinguished it from other tubes such that a reasonable inference could be drawn that defendant manufactured the allegedly defective snow tube. Defendant claims that, without the snow tube, plaintiff has failed to present evidence on a critical element in her product liability claim based on negligence. Since plaintiff did not and could not produce the snow tube, she could not introduce the alleged defect into evidence. Consequently, defendant argues that plaintiff has failed to show and cannot show that any defect existed at the time the snow tube left defendant’s control. Hence, without the tube itself [**30] or photos of it, defendant asserts that a jury could only speculate about whether plaintiff’s injuries were caused by a defect in the tube, and whether the defect was present when the snow tube allegedly left defendant’s control, and whether defendant even manufactured the snow tube. Under such circumstances, defendant argues that the trial court properly entered summary judgment in its favor.

[*P69] IV. Failure to Cite Authority

[*P70] First, we observe that plaintiff’s appellate brief fails to comply with Illinois Supreme Court Rule 341(h)(7), which requires a proponent to cite supporting authority; and the failure to do so results in waiver. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Illinois Supreme Court Rule 341(h)(7) provides that an appellant’s brief must “contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” (Emphasis added.) Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). The purpose of this rule is to provide “[a] court of review” with “clearly defined” issues and cites to “pertinent authority.” People v. Trimble, 181 Ill. App. 3d 355, 356, 537 N.E.2d 363, 130 Ill. Dec. 296 (1989) (discussing the provisions of former Illinois Supreme Court Rule 341(e)(7), which is now numbered as Illinois Supreme Court Rule 341(h)(7), and its importance to the appellate court). A reviewing court “is not a depository in which the appellant may dump the burden of argument and research.” Trimble, 181 Ill. App. 3d at 356. The appellate [**31] court stated in Trimble:

“To ignore such a rule by addressing the case on the merits would require this court to be an advocate for, as well as the judge of the correctness of, defendant’s position on the issues he raises. On the other hand, strict compliance with the rules permits a reviewing court to ascertain the integrity of the parties’ assertions which is essential to an accurate determination of the issues raised on appeal.” Trimble, 181 Ill. App. 3d at 356-57.

[*P71] In the instant case, plaintiff failed to cite a single substantive case in support of her argument that the trial court improperly granted summary judgment in favor of defendant. The cases that plaintiff cites in the argument section of her brief merely establish general principles of law regarding summary judgment and a products liability action. In Part A of the argument section of her brief which discusses how the evidence justifies an inference of probability that defendant was the manufacturer of the subject snow tube, plaintiff cites only Black’s Law Dictionary and fails to cite any precedent in furtherance of her argument. Furthermore, in Part B of the argument section of her brief, plaintiff fails to cite any legal authority supporting her argument [**32] that she can prove a prima facie case without the defective tube since the defect at issue was known to defendant.⁹ Accordingly, because plaintiff has failed to comply with Illinois Supreme Court Rule 341(h)(7), the plaintiff has waived consideration of her claim that the trial court improperly granted summary judgment in favor of defendant.

9 Plaintiff mentions Wiesner v. Fontaine Trailer Co., No. 06-CV-6239, 2010 U.S. Dist. LEXIS 81672, 2010 WL 3023398 (N.D. Ill. 2010), an unreported case discussed in defendant’s motion for summary judgment. However, we will not cite an unreported case. State Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co., 2015 IL App (1st) 140447, ¶ 101, 391 Ill. Dec. 170, 30 N.E.3d 440 (“We will not cite an unreported case.”); Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund, 2012 IL App (1st) 111533, ¶ 15, 964 N.E.2d 1225, 358 Ill. Dec. 203 (“an unreported case” is “not binding on any court”); People v. Moore, 243 Ill. App. 3d 583, 584, 611 N.E.2d 1246, 183 Ill. Dec. 598 (1993) (“the decision was unreported and of no precedential value”). “Unreported decisions have no precedential value, and this is even more true for decisions from foreign jurisdictions.” American Family Mutual Insurance Co. v. Plunkett, 2014 IL App (1st) 131631 ¶ 38, 383 Ill. Dec. 393, 14 N.E.3d 676; Burnette v. Stroger, 389 Ill. App. 3d 321, 329, 905 N.E.2d 939, 329 Ill. Dec. 101 (2009); West American Insurance Co. v. J.R. Construction Co., 334 Ill. App. 3d 75, 82, 777 N.E.2d 610, 267 Ill. Dec. 807 (2002) (a “foreign, unreported decision” is of no precedential value”). Specifically, with respect to unpublished federal cases, this court has held that they do not carry any authority before an Illinois court. Lyons v. Ryan, 324 Ill. App. 3d 1094, 1107 n.11, 756 N.E.2d 396, 258 Ill. Dec. 414 (2001) (“unreported federal court orders” are not “any kind of authority before an Illinois court”); Sompolski v. Miller, 239 Ill. App. 3d 1087, 1093, 608 N.E.2d 54, 180 Ill. Dec. 932 (1992) (“we decline” to follow “an unreported Federal district court decision”).

[*P72] V. No Prima Facie Case

[*P73] However, even if plaintiff did not waive her claims regarding summary judgment, [**33] plaintiff still could not prove a prima facie case without the allegedly defective snow tube. The facts in Shramek v. General Motors Corp., 69 Ill. App. 2d 72, 216 N.E.2d 244 (1966), cited by defendant, are similar to the present case. In Shramek, the plaintiff was injured when the automobile in which he was riding crashed after one of the tires suffered a blowout. Shramek, 69 Ill. App. 2d at 74. He filed both a negligence claim and a breach of implied warranty claim against the tire and auto manufacturers claiming a defect was in the tire at the time it left the control of the manufacturer or seller. Shramek, 69 Ill. App. 2d at 75. The tire, however, was never examined for a defect and could not be located. Shramek, 69 Ill. App. 2d at 78. The trial court granted the automobile and tire manufacturers’ motions for summary judgment, and this court affirmed. Shramek, 69 Ill. App. 2d at 77. The appellate court held that summary judgment was required because the record conclusively demonstrated that the plaintiff could not prove, either by direct or circumstantial evidence, that the accident was caused by a defective tire. Shramek, 69 Ill. App. 2d at 77. The court noted that the mere occurrence of a blowout does not establish a manufacturer’s negligence or that the tire was defective, since blowouts can be attributed to a myriad of causes. Shramek, 69 Ill. App. 2d at 78. The court stated:

“[A]side from a superficial inspection of the damaged car [**34] and tire after the accident by plaintiff and his cousin, the tire in question was never subjected to an examination which would reveal that the blowout was due to a pre-existing defect. Thus, without any examination of the tire designed to elicit the cause of the blowout and without the tire itself or any hope or expectation for its recovery, plaintiff could never prove, directly or inferentially, a case of negligence, breach of warranty or strict liability.” Shramek, 69 Ill. App. 2d at 78.

[*P74] The reasoning in Shramek has been cited with approval and applied in other cases (E.g., Scott v. Fruehauf Corp. 602 F. Supp. 207, 209 (S.D. Ill. 1985); Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 874, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992); Phillips v. U.S. Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987) (discussing and applying Shramek)). In Scott, the plaintiff sued a tire rim manufacturer and distributor, alleging he was injured while working on a tire rim. Scott, 602 F. Supp. at 208. As in Shramek, the allegedly defective product was unavailable. Scott, 602 F. Supp. at 209. The court held that, because the plaintiff could not produce the rim, he “could never prove his case” and, therefore, summary judgment was proper. Scott, 602 F. Supp. at 209. The Scott case held this, even though there were photographs of the rim. Scott, 602 F. Supp. at 209. However, the court found that even photographs were insufficient because the rim had never been examined by a qualified expert and was never made available to the defendant. Scott, 602 F. Supp. at 209. In the case at [**35] bar, plaintiff does not even have photographs of the tube, and the tube was certainly never examined by an expert or made available to defendant. Thus, pursuant to the reasoning of both Shramek and Scott, summary judgment was warranted.

[*P75] Similarly, in Sanchez v. Firestone Tire & Rubber Co., 237 Ill. App. 3d 872, 872-73, 604 N.E.2d 948, 178 Ill. Dec. 425 (1992), the plaintiff brought a negligence and product liability action against defendant for improper installation of a tire and inner tube. The inner tube was unavailable and the plaintiff’s expert never examined the inner tube or took photographs of it. Sanchez, 237 Ill. App. 3d at 873. In affirming summary judgment, the appellate court held that the cause of the incident could only be left to speculation because the expert’s testimony indicated nothing more than a mere possibility that the inner tube was improperly installed. Sanchez, 237 Ill. App. 3d at 874; see also Scott, 602 F. Supp. at 209 (“the very fact that other factors could have caused the injury warranted granting of summary judgment motions since without the alleged[ly] defective product the plaintiff could never prove up his case”). Similarly, in the case at bar, without the tube, the cause of the incident could only be left to speculation.

[*P76] Lastly, in Phillips v. United States Waco Corp., 163 Ill. App. 3d 410, 417, 516 N.E.2d 670, 114 Ill. Dec. 515 (1987), the plaintiff brought a negligence and strict products liability claim against defendant for personal injuries he sustained [**36] when he fell from a scaffold manufactured by the defendant. As in Shramek, the plaintiff failed to produce the allegedly defective product involved in the accident or any photographs of it. Phillips, 163 Ill. App. 3d at 415. And as in Scott, the plaintiff failed to provide any expert testimony regarding the alleged defect in the product. Phillips, 163 Ill. App. 3d at 415. In affirming summary judgment, this court held that the plaintiff failed to present facts to support the elements of his products liability claims based in negligence and strict liability. Phillips, 163 Ill. App. 3d at 418. This court reasoned that, because the scaffold was never examined for the presence of preexisting defects, the plaintiff “could never prove, either by direct or circumstantial evidence, that the accident was caused by a defective scaffold, since he did not and could not produce the scaffold.” Phillips, 163 Ill. App. 3d at 418.

[*P77] Similar to the plaintiff in Phillips, plaintiff in this case did not and cannot produce the allegedly defective product involved in her accident. The subject snow tube was never retrieved or examined for defects. Plaintiff also has not produced any photographs of the snow tube itself or provided testimony by an eyewitness to the accident or its aftermath, other than plaintiff herself. Plaintiff testified [**37] that all of the photographs she took on the day of the accident were of different snow tubes in use at Villa Olivia and not of the tube involved in her accident. Plaintiff testified that the last time she saw the tube was when she left it with the Villa Olivia employees when she walked inside with the paramedic to report the accident. Plaintiff also testified that her basis for believing that defendant manufactured the tube in her accident was that she saw a different tube that had writing on it that said defendant’s name. She testified that a photograph of a snow tube used by her son showed a red colored tube, but did not indicate the manufacturer’s name on it. Without the snow tube itself or any examination of it, plaintiff cannot establish or raise a genuine issue of material fact that defendant was the manufacturer. Without the snow tube itself or any photographs of it, or an examination of the snow tube to determine if the accident was a result of a preexisting defect, plaintiff cannot prove a prima facie products liability case against defendant.

[*P78] Therefore, for the reasons stated above, we cannot find that the trial court erred in granting summary judgment in favor of defendant. [**38] Outboard Marine Corp., 154 Ill. 2d at 102 (discussing when summary judgment should be granted).

[*P79] CONCLUSION

[*P80] On appeal, plaintiff argues that the trial erred in granting summary judgment because there is a genuine issue of material fact as to whether defendant was the manufacturer of the snow tube that injured her. For the foregoing reasons, we conclude that plaintiff failed to present sufficient evidence to raise a genuine issue of material fact as to the manufacturer of the snow tube and thus the trial court did not err in granting summary judgment in favor of defendant.

[*P81] Affirmed.

Gross Negligence: It exists, now days seemingly everywhere; can you fight it with paperwork?

Posted: April 13, 2016 | Author: Recreation Law | Filed under: Release (pre-injury contract not to sue) | Tags: Gross negligence, Negligence, New Orleans, Release, Sport & Recreation Law Association, SRLA, Waiver | Leave a comment

Merry Moiseichik, R.Ed, J.D., University of Arkansas

Jim Moss, Esq, Recreation Law

This presentation looks at the differences between states on how they define gross negligence and how a gross negligence claim affects release law.

Sport and Recreation Law Association Annual conference 2016

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Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662

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Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

Posted: April 11, 2016 | Author: Recreation Law | Filed under: Colorado, Ski Area, Skiing / Snow Boarding | Tags: Chair Lift, Common Carrier, Invitee, Keystone, Landowner, Liftie, Negligence, Premises Liability Act, Vail | Leave a comment

This decision was appealed in Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397

Two decisions, if allowed to stand, will change the ski industry immensely. The standard of care owed to a passenger on a chairlift will drop considerably and allow ski areas a defense for the first time. At the same time, it should eliminate lawsuits by people who haven’t or should not be on a chairlift to begin with.

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

Plaintiff: Teresa Brigance

Defendant: Vail Summit Resorts, Inc.

Plaintiff Claims: for (1) negligence, (2) negligence per se, (3) negligent supervision/training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability pursuant to Colorado Revised Statutes § 13-21-115

Defendant Defenses: Colorado Premises Liability Act

Holding: for Defendant in dismissing some of the plaintiff’s claims

Year: 2016

This is another decision in a case that is probably still on going. The decision is a response to motions, there could still be a trial and appeal of all of the issues examined here.

Vail, owner of Keystone Ski Area where this accident occurred was sued for an injury a skier received getting off the lift. The plaintiff was taking a lesson from an instructor, an employee of the ski area. She was instructed on how to load and unload the lift. (I’m guessing she was a beginner based on this statement.) While unloading from the lift the back of her ski boots became wedged under the lip of the chair resulting in an injury to the plaintiff.

(That happens all the time loading a chair lift to me. My boots are high in the back, and a lot of chairs catch them. I can get money for that? I should ski every day and quit this job. Wait, this job doesn’t pay at all!)

The plaintiff sued. Vail filed a motion to dismiss the parts of the complaint and amended complaint of the plaintiff.

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

The court first looked at Vail’s argument the negligence and negligence per se claims should be dismissed. The court defined a negligence per se claim differentiating it from a negligence claim.

In contrast to negligence, negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes the plaintiff’s injury.” Plaintiff must also show that the statute was intended to protect against the type of injury the plaintiff suffered and that the plaintiff is a member of the group of persons the statute was intended to protect. If those requirements are met, “then the statute conclusively establishes the defendant’s standard of care and violation of the statute is a breach of [defendant’s] duty.”

Negligence per se occurs when the defendant violates a statute that the defendant was required to follow and the statute was intended to protect the person or the public from injury.

Vail’s argument was the complaint did not identify a specific statute that was violated. The complaint referred to the Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act, but not a particular part of either act that was violated.

The Colorado Skier Safety Act and the Colorado Passenger Tramway Safety Act both allow for negligence per se claims.

Under the Skier Safety Act, “a violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

However, the plaintiff failed to identify the specific part of the statute that was violated by the defendant. Even if an act was identified, the violation of the act must be clearly established by the plaintiff.

Nevertheless, this language does not provide a statutory standard of care which is adequate to support Plaintiff’s claim for negligence per se. This Court has previously held that a claim for negligence per se requires a statute, “the violation of which can be clearly established. In other words, the relevant statute needs to prescribe or proscribe some relatively discrete action.

The negligence per se claims were dismissed because the plaintiff failed to identify the specific act and the specific injury the act was created to prevent.

The next issue was the application of the Colorado Premises Liability Act to the facts. The defendant Vail had argued in an earlier decision (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) that the Premises Liability Act preempted the Colorado Skier Safety Act. The same argument was being made here.

The Colorado Premises Liability Act contains the following provision.

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

This provision was further supported in an earlier Colorado Supreme Court decision, Vigil v. Franklin, which held the Premises Liability Act preempted all other types and forms of liability of a landowner. “Ultimately, the Court held that the Premises Liability Act “abrogate[s] the common law with respect to landowner duties.“

The common law negligence claim no longer exists against a landowner, is it now a Premises Liability Act claim. This was supported earlier in the Raup decision, (See Colorado Premises Liability Act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.) “…holding that when a common law negligence claim is founded on negligent maintenance of a ski area, such a claim is within the scope of the Premises Liability Act and must be dismissed.”

In this case, the incident occurred on land of the defendant.

Claim One is a common law negligence claim. Plaintiff also alleges that her injury occurred while on the property of Defendant, the admitted landowner. Therefore, the claim would be preempted by the Premises Liability Act if the alleged injury occurred “by reason of the condition of such property, or activities conducted or circumstances existing on such property.”

The plaintiff argued that a negligence claim survives because of the Defendant’s failure to “maintain a proper distance between the chair and the ground at the unloading point, and/or [failure] to property operate and/or maintain the chair lift.”

However, the court found the plaintiff’s argument actually proved the issue. The incident occurred on the ground.

The alleged failures to maintain the conditions of the property clearly fall under the Premises Liability Act. Furthermore, failing to properly operate the chair lift is an “activity conducted” on the property that also falls under the Premises Liability Act.

The court went further to state the operation of the chair lift occurs on the land, is conducted on the ground that is the Defendants thus it is controlled by the Premises Liability Act.

Consequently, the plaintiff’s negligence claims were against a landowner and were preempted by the Colorado Premises Liability Act.

The final issue before the court was the defendant’s arguments that the claims against the individuals, the liftie and the ski instructor were duplicative in that as employees of the defendant, if proven the defendant was liable anyway. So those claims were the same as the other claims against the defendant Vail and should be dismissed. The court agreed.

So Now What?

The result is that instead of owing a skier on a chair lift the highest degree of care, that of a common carrier, the ski area owes a degree of care set forth to an invitee of a landowner.

13-21-115. Actions against landowners

(3)(c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), 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.

That degree of care is the unreasonable failure to exercise reasonable care to protect against dangers which the landowner knew about or should have known about. This standard of care is significantly lower than that of a common carrier.

Again, this case is not over so the results could change!

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Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

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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.

Posted: February 22, 2016 | Author: Recreation Law | Filed under: First Aid, Medical, Pennsylvania | Tags: AED, AED Good Samaritan, Automatic External Defibrillator, Good Samaritan, Gulph Mills Tennis Club, Immunity, Negligence, Pennsylvania | Leave a comment

The law that creates a safe harbor from civil liability for being a Good Samaritan does not create a duty to act. There still is no legal requirement to act as a Good Samaritan, however, if you do, you cannot be sued.

State: Pennsylvania, Supreme Court of Pennsylvania

Plaintiff: Jerry Atcovitz and Roslyn Atcovitz

Defendant: Gulph Mills Tennis Club, Inc, Jkst, Inc. and Gulph Mills/Jkst Tennis Club, Inc., Lafayette Ambulance Rescue Squad I

Plaintiff Claims: whether a tennis club owes a duty of care to its members to acquire and maintain an automated external defibrillator, hereinafter “AED,” on its premises for emergency use

Defendant Defenses: No duty

Holding: for the defendant Tennis Club

Year: 2002

The plaintiff was playing tennis at the defendant’s tennis club. While playing he suffered a stroke which was secondary to a heart attack. Within one minute tennis club, members started CPR on the plaintiff and ten minutes later an ambulance arrived. The ambulance administered defibrillation and transported the plaintiff to the hospital.

The plaintiff had a history of heart problems for twenty years, including a previous heart attack and bypass surgery. The tennis club did not know of the plaintiff’s medical history.

The heart attack and stroke left the defendant unable to concentrate or think, is unable to walk or get out of bed and requires assistance in all aspects of his life.

The plaintiff and his wife sued the defendant tennis club for not having an AED and not using it: “…had [Gulph Mills] possessed an AED device and used it on [Atcovitz] promptly, his injuries would have been significantly less and; therefore, that [Gulph Mills] is liable to him for damages.”

The plaintiff’s moved for summary judgment to prevent the defendant from asserting the defenses. The defendant then cross-filed a motion for summary judgment which the trial court granted. The case was appealed and the Pennsylvania Appellate court, called the Superior Court, reversed. The case was then appealed to the Pennsylvania Supreme Court.

Between the incident that the plaintiff suffered and the decision by the trial court to dismiss the Pennsylvania legislature passed an AED Good Samaritan Act. The Appellate court based some of the reasoning for its decision on the AED Good Samaritan Act the legislature passed.

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

The court started out by defining the specific issues it would look at as well as the procedural definitions it must follow. This provides a clear look at how Pennsylvania courts make decisions.

The Supreme Court first reviewed the standard of review the court must use. “Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion.”

The court then reviewed under Pennsylvania law the requirements for granting a motion for summary judgment.

Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.

The court then defined the elements necessary to successfully plead a negligence claim under Pennsylvania.

The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant.

The court then further defined the element of duty in a negligence case. “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.“

This definition was supported by the definition of duty in a legal treatise, Prosser and Keeton on the Law of Torts. This is the book referenced by courts in defining the law.

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end, the court will decide whether there is a duty on the basis of the mores of the community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”

The bad news issue the law changes as everything else in the US changes, Public policy and public opinion are just some of the factors that affect the law. The good news is the law attempts to stay current with the changing issues facing the law. Albeit a lot slower than most might wish, but it does change. “Thus, the legal concept of duty is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice, and society.”

The care as defined by a legal duty was further broken down by the court.

In Althaus, this Court enunciated several discrete factors, derived from the aforementioned principles, that our courts are to balance [HN6] in determining whether a common law duty of care exists: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.

Thus the court takes in other issues in looking at determining how a case is to be decided, however, the law and prior decisions come first. Making a change requires a major commitment by the courts to go down a different path and dismiss the prior cases leading down the old path. Consequently, you rarely see these changes, what you do see is slight modifications of the direction the path is taking.

Major changes are left to the legislature to respond more quickly to the issues facing the public. In this case, the court looked at the legislature’s intent in creating an AED Good Samaritan Act.

…the overall public interest in the proposed solution. The Legislature’s enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this Court must refrain from imposing additional requirements upon that legislation.

The appellate court used the newly enacted AED Good Samaritan Act to hold the defendant liable. The Supreme Court looked at the act differently in relation to this decision. The Supreme Court saw the act as proof that the legislature intended the issues surrounding AEDs was highly regulated. “Rather, they are relevant to demonstrate that the acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated.”

When reviewing an act, the information within the law enacted by the legislature is the only information that can be reviewed. Anything not included in the act is therefore excluded from the analysis. “We must infer that, [HN11] under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters.”

The AED Act provides immunity for trained AED users and immunity for untrained users who use an AED in good faith.

The AED Good Samaritan Act, which was adopted two years after Atcovitz sustained his injuries, provides civil immunity for trained users of AEDs and requires that [HN12] “expected users shall complete training in the use of an AED. . . .” As an exception to that general rule, the AED Good Samaritan Act also provides civil immunity to untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Significantly, the AED Good Samaritan Act defines “good faith” as including “a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed until emergency medical services personnel arrive or the person is hospitalized.”

The act, consequently, only creates a safe harbor for using an AED. It does not create liability for someone who does not use an AED.

Thus, the AED Good Samaritan Act merely creates an exception for imposing liability on an untrained individual who uses an AED in limited emergency situations; it does not authorize its use by any such individual.

In addition, it does not indicate that the Legislature aimed to dispense with the regulations governing the training and use of AEDs. Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to ac-quire, maintain, and use such a device on its premises.

The act cannot, then be used to create liability for not using an AED; it only removes liability for someone who does use an AED.

Neither the EMS Act nor the AED Good Samaritan Act imposed a duty upon Gulph Mills to acquire, maintain, and use an AED. Appellees do not cite any other case, statute, or regulation that would have imposed such a duty on Gulph Mills at the time of Atcovitz’s injuries in January 1996. Because Gulph Mills did not owe a duty to carry an AED, Appellees could not have established a prima facie claim of negligence.

There was a dissenting opinion, in this case. The dissent agreed with the majority opinion; it disagreed on how broad the decision was and thought several of the issues should be sent back for review by the trial court.

So Now What?

First understand there is a difference between what is moral, ethical, and legal. My job is not to help you decide on those issues. My job is to help you understand the law when you are faced with the issues. You can be morally and ethically right and be sued and lose. You can have no morals or ethics and be sued and lose. How you balance those aspects of your life, and how you approach the issues you face in your life is not the subject of these articles. How the law applies to the facts set forth in the specific cases may affect your choices is what the article is about.

The good news is the decision prevents lawsuits for not having an AED or using an AED in Pennsylvania.

This case also defines how it would look at the reverse. If the law restricted the use of a device, the application of the law would not only allow for civil liability but possibly criminal liability also.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

Posted: February 9, 2016 | Author: Recreation Law | Filed under: Pennsylvania | Tags: AED, AED Good Samaritan, Automatic External Defibrillator, Good Samaritan, Gulph Mills Tennis Club, Immunity, Negligence, Pennsylvania | Leave a comment

To Read an Analysis of this decision see: 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.

Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

Jerry Atcovitz and Roslyn Atcovitz, H/W, v. Gulph Mills Tennis Club, Inc, Jkst, Inc. and Gulph Mills/Jkst Tennis Club, Inc., Lafayette Ambulance Rescue Squad I; appeal of: Gulph Mills Tennis Club, Inc., Jkst, Inc. and Gulph Mills/Jkst Tennis Club

No. 29 EAP 2001

SUPREME COURT OF PENNSYLVANIA

571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

April 8, 2002, Argued

December 20, 2002, Decided

PRIOR HISTORY: [***1] Appeal from the Order of the Superior Court entered January 16, 2001, at No. 3061 EDA 1999, reversing and remanding the Order of the Court of Common Pleas of Philadelphia County, Civil Division, entered September 13, 1999, at No. 1357 January Term 1998. Trial Court Judge: Flora Barth Wolf, Judge. Intermediate Court Judges: Joseph A. Del Sole, President Judge, Joseph A. Hudock and Correale F. Stevens, JJ.

Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 2001 Pa. Super. LEXIS 16 (2001).

DISPOSITION: Reversed. Trial court’s grant of summary judgment in favor of Gulph Mills affirmed.

COUNSEL: For Gulph Mills Tennis Club, Inc., APPELLANT: Lucien R. Tharaud, Esq.

For Gulph Mills/JKST Tennis Club, Inc., APPELLANT: Charles W. Craven, Esq.

For Jerry Atcovitz and Rosyln Atcovitz, h/w, APPELLEE: Alfred Anthony Brown, Esq. and J. Craig Currie, Esq.

JUDGES: BEFORE: ZAPPALA, C.J., AND CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR AND EAKIN, JJ. MR. CHIEF JUSTICE ZAPPALA. Mr. Justice Cappy files a concurring opinion. Mr. Justice Nigro files a dissenting opinion in which Mr. Justice Saylor joins.

OPINION BY: ZAPPALA

OPINION

[**1220] MR. CHIEF JUSTICE ZAPPALA [*583]

We granted allowance of appeal in this case to determine whether a tennis club owes a duty of care to its members to acquire and maintain an automated external defibrillator, hereinafter “AED,” on its premises for emergency use. ¹ For the reasons that follow, we hold that such clubs do not owe a duty to have an AED available on their premises.

1 An AED is [HN1] “[a] portable device that uses electric shock to restore a stable heart rhythm to an individual in cardiac arrest.” 42 Pa.C.S. § 8331.2(f).

[***2] On January 16, 1996, Jerry Atcovitz suffered a stroke, secondary to a heart attack, while playing tennis at the Gulph Mills Tennis Club. ² Within a minute of his collapse, two tennis club members administered cardiopulmonary resuscitation and called for an ambulance. Approximately ten minutes later, emergency medical technicians arrived and administered a series of defibrillation shocks with an AED and transported Atcovitz to a hospital. ³ Although he survived the incident, Atcovitz “sustained severe and permanent injuries, including anoxic encephalopathy with multiple permanent central nervous system disorders. He is no longer able to think or concentrate, is no longer able to walk or get out of bed unassisted, and requires assistance in virtually every aspect of his life.” R. 42a-43a.

2 Atcovitz was then sixty-four years old and had a twenty-year history of heart problems, including a previous heart attack and bypass surgery. Appellees do not assert that Gulph Mills had knowledge of such history.

3 Atcovitz did not respond to any of the AED shocks administered by the emergency medical technicians, but did subsequently respond to a transcutaneous pacemaker. From this, Gulph Mills remarks that Atcovitz was suffering from “atrial fibrillation,” as opposed to “ventricular fibrillation.” Thus, Gulph Mills implies that, even if Atcovitz would have received electrical defibrillation immediately after he collapsed, it would not have had any beneficial effect. Appellant’s Br. at 6; see also R. 30a, 147a-149a. This Court, however, must view the record in the light most favorable to the nonmoving party in reviewing a grant of summary judgment. Thus, we must operate under the assumption that earlier use of an AED would have mitigated Atcovitz’s injuries.

[***3] [*584] Appellees, Jerry Atcovitz and his wife, Roslyn, sued Gulph Mills for negligence in the Court of Common Pleas of Philadelphia County. ⁴ Specifically, they claimed that, “had [Gulph Mills] possessed an AED device and used it on [Atcovitz] promptly, his injuries would have been significantly less and, therefore, that [Gulph Mills] is liable to him for damages.” Trial Ct. Op. at 2. In its defense, Gulph Mills asserted that, at the time of Atcovitz’s injury, its employees would not have been permitted by law to use an AED.

4 Atcovitz also sued Lafayette Ambulance Rescue Squad, but the parties eventually agreed to dismissal of the rescue squad with prejudice. R. 111a-112a.

In an attempt to preclude Gulph Mills from asserting its defense, Appellees moved for partial summary judgment, which the trial court denied. Immediately prior to trial, however, Appellees orally moved for reconsideration of their motion. At the same time, Gulph Mills cross-moved [**1221] for summary judgment. ⁵ The trial court granted Gulph Mills’s [***4] cross-motion for summary judgment and dismissed the case. The court based its grant of summary judgment on the Emergency Medical Services Act, ⁶ hereinafter the “EMS Act,” and the regulations issued pursuant thereto. The court concluded that, at the time of Atcovitz’s injury, Gulph Mills’s employees were legally prohibited from using an AED. Thus, the court held that Gulph Mills “cannot be held negligent for failure to use the device.” Trial Ct. Op. at 4.

5 The Superior Court, citing Pennsylvania Rule of Civil Procedure 1035.2, reproved the trial court for considering a motion for summary judgment on the day of trial. Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 1281 n.2 (Pa. Super. 2001). The court’s admonition, however, seemed to overlook that the parties had agreed to reconsideration of Appellees’ motion and consideration of Gulph Mills’s cross-motion. R. 8a-14a. Indeed, the motions presented a pure question of law that would avoid the time and expense of trial if Gulph Mills prevailed, which, ultimately, it did.

6 Act of July 3, 1985, P.L. 164, No. 45, § 1, as amended, 35 P.S. §§ 6921- 6938.

[***5] Appellees filed a timely appeal to the Superior Court, which reversed the trial court’s order granting summary judgment. See Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, [*585] 1281 n.2 (Pa. Super. 2001). The court opined that the trial court’s reliance on the EMS Act was inappropriate because it was designed for and aimed at the administration of emergency services by trained and licensed professionals. As the EMS Act did not contain any provision addressing emergency actions by untrained lay persons, i.e., Gulph Mills’s employees, the court concluded that the trial court’s grant of summary judgment could not be supported by reference to the EMS Act or its implementing regulations.

The court also addressed the effect of 42 Pa.C.S. § 8331.2, hereinafter the “AED Good Samaritan Act,” which provides “Good Samaritan civil immunity” for use of an AED in certain instances. It specifically provides immunity for untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Although the [***6] AED Good Samaritan Act was enacted after Atcovitz’s injuries, the court found that its passage evinced the Legislature’s desire that use of AEDs not be restricted solely to trained professionals. Accordingly, the court held that the trial court erred as a matter of law in granting Gulph Mills’s motion for summary judgment. See Atcovitz, 766 A.2d at 1282. Subsequently, Gulph Mills petitioned this Court for allowance of appeal, which we granted. See Atcovitz v. Gulph Mills Tennis Club, Inc., 566 Pa. 656, 782 A.2d 541 (Pa. 2001) (table).

[HN2] This Court’s scope of review of an order granting summary judgment is plenary. Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1118 (Pa. 2000). Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. Id. Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035.2; see also Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (Pa. 2001). [***7] [*586] The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Basile, 761 [**1222] A.2d at 1118. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Id. (citing Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (Pa. 1995)).

[HN3] The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant. Orner v. Mallick, 515 Pa. 132, 527 A.2d 521, 523 (Pa. 1987) (citing Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n.5 (Pa. 1983)); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30 at 164 (5th ed. 1984). Here, we must focus our analysis on [***8] the threshold element of duty. ⁷ Only therein may we resolve the fundamental question of whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.

7 Appellees argue that the issue of duty was not considered by the lower courts and, therefore, may not be addressed by this Court. Appellees’ Br. at 4-5 (citing Pa.R.A.P. 302). Instead, Appellees assert that “the sole question under review is whether the law of this Commonwealth, at the time of Mr. Atcovitz’s cardiac arrest in January of 1996, made it illegal for Gulph Mills to have and use an [AED].” Id. at 4 (emphasis in original). Appellees’ characterization of the issue is too narrowly focused. Gulph Mills’s illegality defense is a subsidiary argument of the broader issue of duty, i.e., whether there was no duty because carrying an AED would have been illegal. Thus, the issue properly before this Court’s plenary review remains whether Gulph Mills owed a duty of care to Atcovitz to acquire and maintain an AED on its premises for emergency use.

[***9] [HN4] “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Law of Torts, supra, § 53 at 356. This Court has embraced [*587] an oft-quoted passage articulating the considerations that underlie the concept of common law duty:

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the [***10] community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”

D. Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 15 (1953) (quoting Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting)); Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (Pa. 2000); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (Pa. 1979). Thus, [HN5] the legal concept of duty is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice, and society. Althaus, [**1223] 756 A.2d at 1169 (citing Gardner v. Consolidated Rail Corp., 524 Pa. 445, 573 A.2d 1016, 1020 (Pa. 1990)).

In Althaus, this Court enunciated several discrete factors, derived from the aforementioned principles, that our courts are to balance [HN6] in determining whether a common law duty of care exists: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability [***11] of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus, 756 A.2d at 1169. [*588] Within this construct, we must resolve whether Gulph Mills owed a duty to Atcovitz to acquire and maintain an AED.

Here, our analysis turns upon the fifth Althaus factor, i.e., the overall public interest in the proposed solution. The Legislature’s enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this Court must refrain from imposing additional requirements upon that legislation.

Looking first to the EMS Act, the Legislature aspired [HN7] “to assure readily available and coordinated emergency medical services of the highest quality to the people of Pennsylvania.” 35 P.S. § 6922(a). To accomplish this purpose, the Secretary of Health is required [HN8] “to plan, guide, assist and coordinate the development of areawide emergency medical services systems into a unified Statewide [***12] system and to coordinate the system with similar systems in neighboring states.” 35 P.S. § 6925(a). For that reason, [HN9] the Department of Health has adopted comprehensive regulations implementing the provisions of the EMS Act, including regulations establishing the qualifications, duties, and certification procedures for those involved in providing emergency medical services. See 28 Pa. Code §§ 1001.1- 1015.2. Similar to the EMS Act, the stated purpose of the regulations [HN10] “is to plan, guide, assist and coordinate the development of regional EMS systems into a unified Statewide system and to coordinate the system with similar systems in neighboring states, and to otherwise implement the Department’s responsibilities under the act consistent with the Department’s rulemaking authority.” Id. at § 1001.1.

To achieve these goals, the EMS Act and its implementing regulations explicitly classify and identify the capacities, training requirements, and qualifications of individuals who are authorized to deliver emergency medical services. See, e.g., 35 P.S. § 6931 (delineating [***13] emergency medical services personnel). Although the Superior Court’s observation [*589] that the EMS Act and its regulations do not specifically refer to the use of AEDs by untrained individuals is correct, we do not agree with the court’s conclusion that the EMS Act and its regulations are irrelevant to the issue of whether Gulph Mills had a duty to use an AED on its premises. Rather, they are relevant to demonstrate that the acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Indeed, the implication of the Legislature’s exclusion of untrained laypersons from the EMS Act and its regulations is to preclude unqualified and untrained individuals from administering emergency medical services using an AED. We must infer that, [HN11] under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters. Pane v. Commonwealth, Dep’t of Highways, 422 Pa. 489, 222 A.2d 913, 915 (Pa. 1966) (citing Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824, 832 (Pa. 1962)). It [**1224] would be absurd for the governmental system charged with rendering [***14] effective emergency medical care to hinder the delivery of that care using AEDs through the system, while ordinary citizens would be duty-bound to acquire, maintain, and use AEDs free from any regulation by the Department of Health.

Likewise, the Superior Court also misconstrued the AED Good Samaritan Act as evincing the Legislature’s intention that the EMS Act should not restrict the use of AEDs to trained professionals. The AED Good Samaritan Act, which was adopted two years after Atcovitz sustained his injuries, provides civil immunity for trained users of AEDs and requires that [HN12] “expected users shall complete training in the use of an AED. . . .” 42 Pa.C.S. §§ 8331.2(a), (c). [HN13] As an exception to that general rule, the AED Good Samaritan Act also provides civil immunity to untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Significantly, the AED Good Samaritan Act defines [HN14] “good faith” as including “a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed [***15] until emergency [*590] medical services personnel arrive or the person is hospitalized.” Id. at § 8331.2(f).

Thus, the AED Good Samaritan Act merely creates an exception for imposing liability on an untrained individual who uses an AED in limited emergency situations; it does not authorize its use by any such individual. Indeed, the exception expresses that personnel under the EMS Act are the preferred users of AEDs: it applies only to instances where emergency medical services personnel are unavailable. In addition, it does not indicate that the Legislature aimed to dispense with the regulations governing the training and use of AEDs. Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to acquire, maintain, and use such a device on its premises. ⁸

8 Even if the AED Good Samaritan Act imposed a duty upon Gulph Mills to carry an AED, it would not control this case. The Legislature did not adopt it until two years after Atcovitz sustained his injuries

[***16] Neither the EMS Act nor the AED Good Samaritan Act imposed a duty upon Gulph Mills to acquire, maintain, and use an AED. Appellees do not cite any other case, statute, or regulation that would have imposed such a duty on Gulph Mills at the time of Atcovitz’s injuries in January 1996. Because Gulph Mills did not owe a duty to carry an AED, Appellees could not have established a prima facie claim of negligence. See Orner, 515 Pa. 132, 527 A.2d 521. Thus, there was no genuine issue of material fact and Gulph Mills was entitled to judgment as a matter of law. See Basile, 563 Pa. 359, 761 A.2d 1115. We reverse the order of the Superior Court and affirm the trial court’s grant of summary judgment in favor of Gulph Mills.

Mr. Justice Cappy files a concurring opinion.

Mr. Justice Nigro files a dissenting opinion in which Mr. Justice Saylor joins.

CONCUR BY: CAPPY

CONCUR

CONCURRING OPINION

MR. JUSTICE CAPPY

I join the majority opinion to the extent that it holds that we must balance the factors in Althaus ex rel. Althaus v. [*591] Cohen, 562 Pa. 547, 756 A.2d 1166 (Pa. 2000). After evaluating all five factors, I agree [***17] that no duty exists here.

DISSENT BY: NIGRO

DISSENT

[**1225] DISSENTING OPINION

MR. JUSTICE NIGRO

While I do not necessarily disagree with the majority’s conclusion that a tennis club does not owe a duty to its members to acquire and maintain an automated external defibrillator (“AED”) on its premises for emergency use, that issue is not before us here. The only issue that the Superior Court considered below was whether the Emergency Medical Services Act, 35 Pa.C.S. §§ 6921- 6938, and the Department of Health regulations promulgated pursuant to that Act specifically prohibited Appellants from using an AED. Concluding that they did not, the Superior Court reversed the trial court’s entry of summary judgment in favor of Appellants on the basis of those authorities. Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 1282 (Pa. Super. 2001) (“Although we make no finding on the ultimate merits of [plaintiffs’] claim, we find that the trial court erred as a matter of law in granting [defendant’s] motion for summary judgment on the basis of the statutes and regulations cited.”) As I agree [***18] with the Superior Court’s conclusion in that regard, I would affirm the Superior Court’s order and remand the case to the trial court to consider in the first instance whether there is any basis on which to conclude that Appellants owed a duty to Appellees.

Mr. Justice Saylor joins the dissenting opinion.

Do not waste paper if you are not going to do it right. Use the magic words needed for a release.

Posted: July 20, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, New York, Release (pre-injury contract not to sue) | Tags: challenge course, General Obligations Law, Negligence, New York, Release, Ropes course | Leave a comment

Challenge course in New York loses lawsuit because their release was poorly written. Besides New York General Obligations Law § 5-326 did not apply to a non-profit treatment facility.

State: New York, Supreme Court of New York, Appellate Division, Fourth Department

Plaintiff: Carol Barone

Defendant: St. Joseph’s Villa

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the plaintiff

Year: 1998

All we know in this three paragraph decision is the plaintiff was injured when she fell while “participating in a “challenge’” course” owned by the defendant.

The trial court dismissed the plaintiff’s complaint because of the release she signed. The plaintiff appealed arguing that New York General Obligations Law § 5-326 prevented the defendant from using a release and appealed.

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

In the second paragraph, the court looked at New York General Obligations Law § 5-326 and held that it did not apply in this case because “defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment”

New York General Obligations Law § 5-326 states:

§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

[emphasize added]

The defendant was a non-profit residence for needy adolescents and provided mental health and community services. The challenge course was part of its therapeutic purpose.

The release was not voided because of the New York statute. The court on its own and not as part of the appeal, looked at the wording of the release at issue.

The release was void because under New York law, a release had to have clear and explicit language. The release used the language “plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant]”.

The court stated the release did not mention the word negligence. “Thus, the release may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence.”

If you read the release, you can see how the court could interpret the release to mean you can’t sue if you fall down in the hallway. However, if you fall down in the hallway because we tripped you, then the release was void because that was a negligent act not covered by the release.

The appellate court reversed the lower court because the language of the release was insufficient to top a claim of negligence because it did not use the word negligence in the release.

So Now What?

Figure it took three years for the appeal to be heard from the date of the accident, conservatively. Figure legal fees are roughly $50,000 a year more or less to get to this point.

Figure the owners/managers/directors of the defendant spent 500 hours fighting the lawsuit by prepping for and attending depositions, answering discovery, spending time with the attorneys, and worrying at night.

Think it was worth using a badly written release or would they have been better off spending a couple of thousand dollars have a release written properly?

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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

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Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Posted: July 15, 2015 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: challenge course, General Obligations Law, Negligence, New York, Release, Ropes course | Leave a comment

To Read an Analysis of this decision see: Don’t waste paper if you are not going to do it right. Use the magic words needed for a release.

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Carol Barone, Appellant, v. St. Joseph’s Villa, Respondent.

(Appeal No. 2.)

1430.

Supreme Court of New York, Appellate Division, Fourth Department

255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

November 13, 1998, Decided

November 13, 1998, Filed

Prior History: [***1] (Appeal No. 2.) (Appeal from Order of Supreme Court, Monroe County, Bergin, J. – Reargument.)

Judges: Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

Opinion: [*973] [**783] Order unanimously reversed on the law with costs, motion for summary judgment denied and complaint reinstated.

Plaintiff commenced this action to recover for personal injuries that she sustained in a fall while participating in a “challenge” course owned by defendant. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on a release signed by plaintiff before she was injured and, upon reargument, adhered to its determination. On appeal, plaintiff contends that the release is unenforceable under General Obligations Law § 5-326 and cannot be construed to bar a claim alleging defendant’s negligence.

General Obligations Law § 5-326 does not apply to this case because defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment” (General Obligations Law § 5-326; see, Lago v Krollage, 78 NY2d 95, 101; Gross v Sweet, 49 NY2d 102, 107; [***2] [*974] Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758; Chieco v Paramarketing, Inc., 228 AD2d 462, 463; Perelman v Snowbird Ski Shop, 215 AD2d 809, 810). Defendant is a not-for-profit entity that operates a residence for needy adolescents and provides mental health and other community services; it maintains the “challenge” course for therapeutic purposes as part of its mission to deliver mental health and other support services. Because the statute does not apply to this case, the release is not void thereunder.

We conclude, however, that the release may not be construed to exculpate defendant for its own negligence absent clear and explicit language to that effect (see, Gross v Sweet, supra, at 107-110; see also, Lago v Krollage, supra, at 99-100; Ciofalo v Tanney Gyms, 10 NY2d 294, 297). The release recites that plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant].” Defendant’s negligence is not mentioned. Thus, the release [***3] may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence (see, Bennett v Genesee Marina, 237 AD2d 908, 908-909; Machowski v Gallant, 234 AD2d 933, 934). (Appeal from Order of Supreme Court, Monroe County, Bergin, J.—Reargument.)

Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

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

Posted: July 13, 2015 | Author: Recreation Law | Filed under: Skydiving, Paragliding, Hang gliding, South Dakota | Tags: Ballooning, FAA, Negligence, Negligence per se, Regulations, Rescue Doctrine, South Dakota, Supreme Court | Leave a comment

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.

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:

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.

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Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

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

Posted: June 26, 2015 | Author: Recreation Law | Filed under: Legal Case, South Dakota | Tags: Ballooning, FAA, Negligence, Negligence per se, Regulations, Rescue Doctrine, South Dakota, Supreme Court | Leave a comment

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):

(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:

¶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.

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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.

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Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

Posted: April 19, 2015 | Author: Recreation Law | Filed under: Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: Minor, Negligence, Release | Leave a comment

To Read an Analysis of this decision see

Simple Florida camp case with final sentences that provide insight into how courts look at what influenced their decision.

Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

Stacy Sanislo, et al., Petitioners, vs. Give Kids The World, Inc., Respondent.

No. SC12-2409

SUPREME COURT OF FLORIDA

157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

February 12, 2015, Decided

PRIOR HISTORY: [*1] (Osceola County). Fifth District – Case No. 5D11-748. Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions.

Give Kids The World, Inc. v. Sanislo, 98 So. 3d 759, 2012 Fla. App. LEXIS 17750 (Fla. Dist. Ct. App. 5th Dist., 2012)

COUNSEL: Christopher Vincent Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, Florida; and Michael J. Damaso, II of Wooten, Kimbrough & Normand, P.A., Orlando, Florida, for Petitioners.

Dennis Richard O’Connor, Derek James Angell, and Matthew J. Haftel of O’Connor & O’Connor, LLC, Winter Park, Florida, for Respondent.

Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association.

JUDGES: LABARGA, C.J., and PERRY, J., concur. CANADY and POLSTON, JJ., concur in result. LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.

OPINION

PER CURIAM.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. 5th DCA 2012), in which the Fifth District held that an exculpatory clause was effective to bar a negligence action despite the absence of express language referring to release of the defendant for its own negligence or negligent acts. The district court certified that its decision is in direct conflict with [*2] the decisions of the First, Second, Third, and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Courts of Appeal.

FACTS AND PROCEDURAL HISTORY

This action arose as a result of a negligence action brought against Give Kids the World, Inc., (Give Kids the World), a non-profit organization that provides free “storybook” vacations to seriously ill children and their families at its resort village,¹ by Stacy and Eric Sanislo, a married couple who brought their seriously ill child to the village, for injuries sustained by Ms. Sanislo while on the vacation.

1 Fulfillment of a child’s wish is accomplished in conjunction with the Make-A-Wish Foundation. See Give Kids the World, 98 So. 3d at 760 n.1.

As part of the application process for the “storybook” vacation, the Sanislos filled out and signed a wish request form, which contained language releasing Give Kids the World from any liability for any potential cause of action. After the wish was granted, the Sanislos arrived at the resort village located in Kissimmee, Florida, and again signed a liability [*3] release form. The wish request form and liability release form both provide, in pertinent part:

I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants, and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind. . . .

I/we further agree to hold harmless and to release Give Kids the World, Inc. from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us. . . .

While at the resort village, the Sanislos and their children participated in the horse-drawn wagon ride operated by Heavenly Hoofs, Inc. The wagon, manufactured by codefendant Thornlea Carriages, Inc., was equipped with a rear, pneumatic lift to allow those in wheelchairs to participate in [*4] the ride. The carriage was carrying the Sanislos’ children. The Sanislos stepped onto the wheelchair lift of the wagon to pose for a picture and the lift collapsed due to weight overload, causing injuries to Ms. Sanislo’s left hip and lower back.

The Sanislos subsequently brought suit in the circuit court for Osceola County against Give Kids the World alleging Ms. Sanislo’s injuries were caused by Give Kids the World’s negligence. See id. at 761. Give Kids the World asserted an affirmative defense of release, and filed a motion for summary judgment arguing that the Sanislos signed releases that precluded an action for negligence. Id. The Sanislos also filed a motion for partial summary judgment on Give Kids the World’s affirmative defense of release. The trial court granted the Sanislos’ motion for summary judgment and denied Give Kids the World’s motion for summary judgment. Thus, the negligence action proceeded to trial. Following a jury verdict, judgment was entered in the Sanislos’ favor awarding them $55,443.43 for damages incurred as a result of the injury and costs of $16,448.61.

On appeal to the Fifth District, Give Kids the World argued that the lower court erred by denying its pretrial [*5] motion for summary judgment on its affirmative defense of release because the release was unambiguous and did not contravene public policy. The Fifth District reversed the trial court’s denial of summary judgment, holding that an exculpatory clause releasing Give Kids the World from liability for “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us” barred the negligence action despite the lack of a specific reference to “negligence” or “negligent acts” in the exculpatory clause. Id. at 761-62. The Fifth District reasoned that exculpatory clauses are effective if the wording of the exculpatory clause is clear and understandable so that an ordinary and knowledgeable person would know what he or she is contracting away, and that the court had previously rejected “‘the need for express language referring to release of the defendant for “negligence” or “negligent acts” in order to render a release effective to bar a negligence action.'” Id. at 761 (quoting Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006)). The Fifth District also held that the bargaining power of the parties should not be considered because it was outside of the public utility or public function [*6] context and the Sanislos were not required to request a vacation with Give Kids the World or go on the vacation.

In Levine, Van Tuyn, Goyings, and Tout, the remaining four district courts of appeal held that exculpatory clauses are ineffective to bar a negligence action unless there is express language referring to release of the defendant for its own negligence or negligent acts. Accordingly, the conflict presented for this Court’s resolution is whether an exculpatory clause is ambiguous and thus ineffective to bar a negligence action due to the absence of express language releasing a party from its own negligence or negligent acts.

The Sanislos argue that express language regarding negligence is necessary to render an exculpatory clause effective to bar an action for negligence because this Court has held that indemnification agreements, which are similar in nature to an exculpatory clause, require a specific provision protecting the indemnitee for its own negligence in order to be effective. Further, the Sanislos argue that an ordinary and knowledgeable person does not expect a release to relieve a party from liability for failure to provide reasonable care; thus, any document intending [*7] to do so must include specific, unambiguous language to that effect. Give Kids the World, however, argues that use of the term “negligence” should not be required because: (1) the term “liability” is more readily understandable than “negligence” to an ordinary and knowledgeable person; (2) the language of this exculpatory clause would be rendered meaningless if found ineffective; (3) indemnification agreements and exculpatory clauses serve different purposes and involve differing allocations of risks; and (4) this rule has been rejected by many states. For the reasons discussed below, we hold that an exculpatory clause is not ambiguous and, therefore, ineffective simply because it does not contain express language releasing a defendant from liability for his or her own negligence or negligent acts; such an approach could render similar provisions meaningless and fail to effectuate the intent of the parties.

ANALYSIS

The issue presented–the enforceability of a pre-injury exculpatory clause that does not contain express language releasing a party of liability for its own negligence or negligent acts–is a question of law arising from undisputed facts. Thus, [HN1] the standard of review is de [*8] novo. See Kirton v. Fields, 997 So. 2d 349, 352 (Fla. 2008) (citing D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (stating that the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower courts)).

[HN2] Public policy disfavors exculpatory contracts because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain, 932 So. 2d at 578); see Levine, 516 So. 2d at 1103 (“The rule is that [HN3] an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So. 2d at 1146 (same). Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Applegate, 974 So. 2d at 1114 (citing Cain, 932 So. 2d at 578); Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B (1965). Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Cain, 932 So. 2d at 578 (citing Gayon v. Bally’s Total Fitness Corp., 802 So. 2d 420, 420-21 (Fla. 3d DCA 2001)); Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001); cf. Univ. Plaza Shopping Ctr., Inc. v. Stewart, 272 So. 2d 507, 509 (Fla. 1973) ( [HN4] “‘A contract of indemnity will not be construed to indemnify [*9] the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms. . . .'”).

The liability release forms signed in this case provided that the Sanislos released Give Kids the World from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish . . .” and “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us. . . .” Further, the form states that the scope of the release includes “damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind.” Although this exculpatory clause otherwise clearly and unequivocally includes negligence as its express terms encompass any liability, any and all claims and causes of action, and damages or losses or injuries encountered on the vacation, the issue before this Court is whether an exculpatory clause’s terms “clearly and unequivocally” release a party of liability for its own negligence or negligent acts when the [*10] clause does not contain express language regarding negligence or negligent acts.²

2 The Sanislos do not argue that the exculpatory clause here is void because it is against public policy. This claim is barred. Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (noting that an argument not raised in the initial brief is barred).

As noted above, in Give Kids the World, the Fifth District reaffirmed its position that exculpatory clauses are not ambiguous, equivocal, and unenforceable to bar negligence actions simply because they do not contain express language referring to release of the defendant for negligence or negligent acts. Id. at 761. The First, Second, Third, and Fourth Districts, however, relying on this Court’s holding in University Plaza regarding indemnity agreements, have held that an exculpatory clause is only effective to bar a negligence action if it clearly states that it releases a party from liability for his or her own negligence. Levine, 516 So. 2d at 1103; Van Tuyn, 447 So. 2d at 320; Goyings, 403 So. 2d at 1146 (reasoning that “This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability.”); and Tout, 390 So. 2d at 156 (citing Ivey Plants, 282 So. at 209 (relying on University Plaza to conclude that the language in the indemnification agreement [*11] did not preclude maintenance of an action predicated on the alleged negligence of the defendant)).

Here, both parties argue the merits of extending the holding stated in University Plaza in the context of indemnity agreements to exculpatory clauses and hold-harmless agreements. The Sanislos contend that indemnity agreements and exculpatory clauses achieve the same result–abdication of responsibility for one’s own negligence–and therefore, should be treated the same. Give Kids the World, on the other hand, contends that it is sensible to require specificity in indemnity agreements because both parties to the contract can conceivably cause injury to an unknown third party, whereas exculpatory clauses shift the risk of injury and liability from one contracting party–usually a purveyor of voluntary amusements or a non-profit service provider–to the other contracting party, a voluntary consumer of the amusement or service. To determine whether the holding in University Plaza should be applied in this context, we examine University Plaza and its progeny, and out of state case law.

University Plaza

In University Plaza, University Plaza Shopping Center leased space in its building to a tenant [*12] who used the space to operate a barbershop. During the lease, a gas line exploded underneath the barbershop causing fatal injuries to a barber. The barber’s widow sued University Plaza Shopping Center for wrongful death alleging that the landlord negligently installed and maintained the gas line under the barbershop, which caused the explosion that led to the barber’s fatal injuries. University Plaza Shopping Center then instituted a third-party complaint against the tenant and his insurer seeking to impose liability on them based on an indemnity provision, which provided in pertinent part that the tenant would indemnify and save harmless the landlord from and against any and all claims for damages in and about the demised premises, and against any and all claims for personal injury or loss of life in and about the demised premises. Univ. Plaza, 272 So. 2d at 508-09. University Plaza Shopping Center conceded that the gas line was under, but not part of, the leased premises. Thus, the trial court entered a summary judgment for the tenant finding that an indemnity agreement stated in general terms does not apply to liability resulting from the sole negligence of the indemnitee. Further, the trial court found that the [*13] policy of insurance procured by the tenant was only applicable when the tenant was liable, and the tenant was free from liability for the gas line explosion. On appeal, the First District affirmed. This Court accepted certiorari review based on a decisional conflict because the Third District, in Thomas Awning & Tent Co., Inc. v. Toby’s Twelfth Cafeteria, Inc., 204 So. 2d 756 (Fla. 3d DCA 1967), held that indemnification for “any loss or claims” encompasses the indemnitee’s negligence.

The central issue in University Plaza was whether a contract of indemnity stated in general terms of “any and all claims” indemnifies the indemnitee for damages resulting from his sole negligence. Univ. Plaza, 272 So. 2d at 509. This Court noted that “divergent views” on the particular issue existed throughout the United States, but that the basic premise was that an indemnity contract does not indemnify the indemnitee against losses resulting from the indemnitee’s negligent acts unless such intention is expressed in clear and unequivocal terms. Id. The Court observed that the divergence in views across the country turned on an interpretation of the words “clear and unequivocal” and that three approaches existed: (1) the contract must contain a specific provision providing for indemnification in the event the indemnitee is negligent; [*14] (2) promises to indemnify against “any and all claims” include losses attributed solely to the negligence of the indemnitee because “all” means “all without exception”; and (3) the express use of the terms “negligence” or “negligent acts” is not required if the contractual language and any other factors indicate the intention to clearly and unequivocally indemnify for the indemnitee’s own negligence. Id. at 509-10.

In concluding that [HN5] the best alternative was to require a specific provision protecting the indemnitee from liability solely caused by his own negligence,³ this Court reasoned that its “basic objective in construing the indemnity provision is to give effect to the intent of the parties involved. . .” and that “the use of the general terms ‘indemnify . . . against any and all claims’ does not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee.” Id. at 511 (emphasis omitted). The Court further reasoned that in the context presented, “the phraseology logically relates to the tenant’s occupation of the leased premises–not some outside (though proximately close) independent act of negligence of the landlord. . . . It might be likened to a ‘common [*15] stairway’ in an apartment complex. . . . One would not expect liability to extend under a shopowner’s policy for a landlord’s negligently maintained common walkway or mall in front of a series of shops.” Id. at 512 (emphasis omitted). Finally, we concluded our reasoning by stating that the other alternatives listed above impute an intent to indemnify for liability occasioned by the indemnitee’s sole negligence, which is a “harsh result not necessarily contemplated by the parties nor condoned by this Court.” Id. Six years later, we considered whether this rule applied to situations where the indemnitee was jointly liable due to his or her own negligence in Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979).

3 This Court did not follow the United States Supreme Court’s decision in United States v. Seckinger, 397 U.S. 203, 212 n.17, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970), in which the Supreme Court declined to hold that language in indemnification agreements needed to explicitly state that the indemnification extended to injuries caused by the indemnitee’s own negligence, and recognized that contract interpretation is largely an individualized process “with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention.”

Charles Poe Masonry

In Charles Poe Masonry [*16] , an employee of Charles Poe Masonry was injured when he fell from a scaffold on a construction site. The employee filed an action alleging the manufacturer of the scaffold, Spring Lock, was negligent, breached the implied warranty, and was strictly liable for his injuries. The scaffold had been leased by Spring Lock to Charles Poe Masonry. The lease agreement provided in pertinent part that the lessee assumed all responsibility for claims asserted by any person whatsoever growing out of the erection and maintenance, use, or possession of the scaffolding equipment, and that the lessee agreed to hold the lessor harmless from such claims. Id. at 489. Thus, Spring Lock filed a third-party complaint against Charles Poe Masonry for contractual indemnity.⁴ Id. at 488.

4 Spring Lock also filed the third-party complaint against Charles Poe Masonry for common law indemnity, which this Court held was unavailable for the reasons expressed in Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979).

In considering whether the provision barred a negligence action, we found that the provision at issue was “exactly the sort of ‘general terms’ which we held in University Plaza do not disclose an intention to indemnify for consequences arising from the wrongful acts of the indemnitee” [*17] and that the public policy reasons expressed in University Plaza applied with equal force to instances where the indemnitor and indemnitee were jointly liable. Id. at 489-90 (“Under classical principles of indemnity, courts of law rightfully frown upon the underwriting of wrongful conduct, whether it stands alone or is accompanied by other wrongful acts.”). Further, we reasoned that the language of the provision demonstrated “nothing more than an undertaking by [Charles Poe Masonry] to hold Spring Lock harmless from any vicarious liability which might result from [Charles Poe Masonry’s] erection, maintenance or use of the scaffold.” Id. at 489.

We reaffirmed these principles thirteen years later in Cox Cable Corp. v. Gulf Power Co., 591 So. 2d 627 (Fla. 1992).

Cox Cable

In Cox Cable, Cox Cable Corporation and Gulf Power Company entered into a written contract authorizing Cox Cable to attach its cables, wires, and appliances to Gulf Power’s utility poles. The contract also provided that Cox Cable was to ensure the safe installation and maintenance of any wires, cables, or devices attached to the poles and indemnify Gulf Power against claims for personal injury and property damages. Cox Cable hired a cable installation contractor to perform the installation, and the [*18] cable installation contractor’s employee suffered electrical burns when he overtightened a guy wire during the course of installation. This employee sued Gulf Power alleging that its failure to warn him of the danger was negligent. Gulf Power then filed a third-party complaint against Cox Cable seeking indemnification.⁵ Id. at 628-29. The indemnity agreement provided in pertinent part that the licensee was to indemnify and save the licensor forever harmless against any and all claims and demands for damages to property and injury or death to any persons including, but not restricted to, employees of the licensee and employees of any contractor or subcontractor performing work for the licensee which may arise out of or be caused by the erection, maintenance, presence, use or removal of the aforementioned attachments. Id. at 629.

5 Gulf Power also claimed breach of contract and alleged that Cox Cable’s negligence was the sole and proximate cause of the employee’s injuries.

On appeal, the district court stated that the degree of specificity required for indemnification in cases of joint negligence was less stringent than in cases where the indemnitee is solely negligent. This Court, however, reaffirmed the principles [*19] established in University Plaza and Charles Poe Masonry in holding that the district court had erred by applying a less stringent standard to cases involving parties who are jointly liable, and that the language of the provision before it was insufficiently clear and unequivocal. Accordingly, it is clear that since 1973 and as recently as 1992, this Court has found that [HN6] an indemnity agreement only indemnifies the indemnitee for his or her own negligence or negligent acts if the agreement contains a specific provision protecting the indemnitee from liability caused by his or her own negligence.

[HN7] The principles underlying our case law regarding indemnity agreements, however, are not applicable to exculpatory clauses. Generally, “[i]ndemnification provides a party entitled to indemnification the right to claim reimbursement for its actual loss, damage, or liability from the responsible party. . . .” First Baptist Church of Cape Coral, Florida, Inc. v. Compass Constr., Inc., 115 So. 3d 978, 986 (Fla. 2013) (Lewis, J., dissenting) (emphasis added) (citing Black’s Law Dictionary 837 (9th ed. 2009)); see also Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999) ( [HN8] “A contract for indemnity is an agreement by which the promisor agrees to protect the promisee against loss or damages by reason of liability to a third party.”). Further, “[i]ndemnification serves the purpose of holding [*20] the indemnified party harmless by shifting the entire loss or damage incurred by the indemnified party–who has without active negligence or fault ‘been obligated to pay, because of some vicarious, constructive, derivative, or technical liability’–to the responsible party who should bear the cost because it was that party’s wrongdoing for which the indemnified party is held liable.” Compass Constr., 115 So. 3d at 986 (Lewis, J., dissenting) (emphasis added); see also Rosati v. Vaillancourt, 848 So. 2d 467, 470 (Fla. 5th DCA 2003) ( [HN9] “Indemnity is a right which inures to one who discharges a duty owed by him but which, as between himself and another, should have been discharged by the other.” (citing Houdaille Indust., Inc. v. Edwards, 374 So. 2d 490, 492-93 (Fla. 1979))). These contracts are typically negotiated at arm’s length between sophisticated business entities and can be viewed as an effort to allocate the risk of liability. Gross v. Sweet, 49 N.Y.2d 102, 400 N.E.2d 306, 310, 424 N.Y.S.2d 365 (N.Y. 1979). Thus, it would not be apparent that a party has agreed to indemnify a party for liability incurred due to that party’s own negligent conduct based on general language in an indemnification agreement.

[HN10] An exculpatory clause, on the other hand, shifts the risk of injury and deprives one of the contracting parties of his or her right to recover damages suffered due to the negligent act of the other contracting party. See Ivey Plants, 282 So. 2d at 207. Thus, [*21] although indemnification agreements can sometimes produce the same result as an exculpatory provision by shifting responsibility for the payment of damages back to the injured party, see O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446 (Fla. 5th DCA 1982), Florida courts recognize a distinction between exculpatory clauses and indemnity clauses.⁶ Acosta v. Rentals (N. Am.), Inc., No. 8:12-CV-01530-EAK-TGW, 2013 U.S. Dist. LEXIS 31392, 2013 WL 869520 (M.D. Fla. Mar. 7, 2013).

6 In Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 792 n.6 (Minn. 2005), the court noted that [HN11] although it had previously recognized similarities between exculpatory clauses and indemnity agreements, the “[i]ndemnification clauses are subject to greater scrutiny because they release negligent parties from liability, but also may shift liability to innocent parties.”

These distinctions are evidenced in this Court’s precedent noted above. In University Plaza and Charles Poe Masonry, this Court recognized that [HN12] indemnification agreements are construed subject to the general rules of contract construction–the Court looks to the intentions of the parties. See Dade Cnty. Sch. Bd., 731 So. 2d at 643 (noting that indemnity contracts are subject to the general rules of contractual construction). Thus, given the typical purpose of indemnification, and that the parties’ apparent intent was to reduce the risk of vicarious liability, we were reluctant to decipher an intent to indemnify a party [*22] for its own wrongdoing through the parties’ use of general terms. See Univ. Plaza, 272 So. 2d at 512 (noting that the language of the agreement appeared to relate to injuries occurring due to the tenant’s occupation of the leased premises–liability would not logically extend to a landlord’s negligently maintained common walkway); Charles Poe Masonry, 374 So. 2d at 489 (noting that the language of the lease agreement appeared to be an undertaking by the indemnitor to indemnify the indemnitee from any vicarious liability). Further, because courts “frown upon the underwriting of wrongful conduct. . .,” specificity is required in the indemnity context. See id. at 489-90 (holding that courts should not allow underwriting of wrongful conduct). In short, because indemnification agreements allocate the risk of liability for injuries to an unknown third party, specificity is required so that the indemnitor is well aware that it is accepting liability for both its negligence and the negligence of the indemnitee. Exculpatory clauses, however, primarily release a party from liability for its own negligence and not vicarious liability.⁷ See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784-85 (Colo. 1989) (noting, in a release relieving a party from liability for any injuries due to horseback riding, that any claim the injured party could [*23] have asserted would have been based on negligence). Further, releasing a party from liability does not result in the underwriting of wrongful conduct or shift liability to an innocent party. Thus, discerning the intent of the parties regarding the scope of an exculpatory clause involves less uncertainty than in an indemnification context. Accordingly, University Plaza and its progeny do not control our conclusion here.

7 Indeed, the petitioner in this case could not indicate what this liability release form covered if not the negligence of Give Kids the World.

Review of out-of-state precedent illustrates that many states have expressly rejected the requirement that an exculpatory clause contain an explicit provision releasing a party from liability for his or her own negligence or negligent acts.

Out-of-State Precedent

State courts across the country have rendered four different standards for determining whether language in an exculpatory clause clearly and unequivocally releases a party from liability for negligence. 57A Am. Jur. 2d Negligence § 53 (2004). First, recognizing that “the intentions of the parties with regard to an exculpatory provision in a contract should be delineated with the greatest of particularity,” [*24] an exculpatory clause will be given effect if the agreement clearly and unambiguously expresses the parties’ intention to release a party from liability for his or her own negligence by using the words “negligence” or “negligent acts” and specifically including injuries definitely described as to time and place. 57A Am. Jur. 2d Negligence § 53 (citing Jones v. Dressel, 623 P.2d 370 (Colo. 1981); Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 663 A.2d 1340 (N.H. 1995)). Second, a specific reference to negligence is not required if the clause clearly and specifically indicates an intent to release the defendant from liability for a personal injury caused by the defendant’s negligence. See 57A Am. Jur. 2d Negligence § 53 (citing Seigneur v. Nat’l Fitness Inst., Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000); Swartzentruber v. Wee-K Corp., 117 Ohio App. 3d 420, 690 N.E.2d 941 (Ohio Ct. App. 1997); Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973); Russ v. Woodside Homes, Inc., 905 P.2d 901 (Utah Ct. App. 1995); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (Wash. Ct. App. 1981)). Third, a specific reference to negligence is not required if protection against negligence is the only reasonable construction of the contract. See, e.g., American Druggists’ Ins. Co. v. Equifax, Inc., 505 F. Supp. 66, 68-69 (S.D. Ohio 1980) (applying Ohio law). Fourth, a specific reference to negligence is not required if the hazard experienced was clearly within the contemplation of the provision. See, e.g., Blide, 636 P.2d 493). Courts, however, have required words conveying a similar import; a release will not cover negligence if it neither specifically refers to negligence nor contains any other language that could relate to negligence. See 57A Am. Jur. 2d Negligence § 53 (citing Lewis v. Snow Creek, Inc., 6 S.W.3d 388 (Mo. Ct. App. 1999) (retransferred to Mo. Ct. of Appeals (Dec. 21, 1999) and opinion adopted [*25] and reinstated after retransfer (Jan. 6, 2000)); Sivaslian v. Rawlins, 88 A.D.2d 703, 451 N.Y.S.2d 307 (N.Y. App. Div. 1982); Colton v. New York Hospital, 98 Misc. 2d 957, 414 N.Y.S.2d 866 (N.Y. Sup. Ct. 1979)). According to American Jurisprudence, however, “the better practice is to expressly state the word ‘negligence’ somewhere in the exculpatory provision.”⁸ 57A Am. Jur. 2d Negligence § 53; see Give Kids the World, 98 So. 3d at 763 (Cohen, J., concurring specially) (“The better view is to require an explicit provision to that effect. . . . I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care.”).

8 Although many courts have noted that it may be “better practice” to include the term “negligence” in contracts, our jurisprudence recognizes that the term “negligence” may not be understood by the average ordinary and knowledgeable person. For instance, the legal term “negligence” is defined for juries. See Fla. Std. Jury Instr. (Civ.) 401.4. Thus, the inclusion of the terms “negligence” or “negligent acts” may not clarify the meaning of an exculpatory contract for the average ordinary and knowledgeable person at all.

Although some courts have suggested that “the better practice” for contracting parties is to require an explicit provision releasing a party from liability for his or her own negligence or negligent acts, most [*26] states have expressly rejected such a requirement. For instance, the Supreme Court of Kentucky does not require the word “negligence,” but reviews the contractual language to determine whether it satisfies any one of four standards articulated by the court. Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005) (“. . . a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word ‘negligence’; or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision.”); see Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644, 649-50 (Ky. 2007) (finding that the wording of the release was “unmistakable” and that “‘the hazard experienced was clearly within the contemplation of the provision.'”).

The Colorado Supreme Court has “examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. . .” and has “also made clear that the specific terms ‘negligence’ and ‘breach of [*27] warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (citing Heil Valley Ranch, 784 P.2d at 785). Indeed, in Heil, the Colorado Supreme Court noted several factors supporting the enforceability of the exculpatory clause: (1) the agreement was written in terms free from legal jargon; (2) the clause was not inordinately long or complicated; (3) when the agreement was read to the injured party at a deposition she indicated that she understood it; (4) the release specifically addressed a risk that adequately described the circumstances of the injury; and (5) it was difficult to imagine any claims that the injured party could have asserted other than negligence. 784 P.2d at 785. However, in Wycoff v. Grace Community Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo. App. 2010), the court of appeals noted that in every Colorado Supreme Court case upholding an exculpatory clause, the clause “contained some reference to waiving personal injury claims based on the activity being engaged in.” Thus, a release form that did not reference the relevant activity or that personal injury claims were specifically waived was unenforceable.

Other states have similarly held that reference to negligence is not required. The Supreme Court of Hawai’i [*28] has held that an exculpatory clause that did not include specific language pertaining to negligence was effective to bar simple negligence claims, but not gross negligence or willful misconduct. See Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 141 P.3d 427, 439-40 (Haw. 2006). In Massachusetts, an exculpatory clause releasing a party from liability for “any and all liability, loss, damage, costs, claims and/or causes of action, including but not limited to all bodily injuries” occurring during a motorcycle safety course was deemed “unambiguous and comprehensive” despite the absence of language specifically mentioning negligence. Cormier v. Cent. Mass. Chapter of the Nat’l Safety Council, 416 Mass. 286, 620 N.E.2d 784, 785 (Mass. 1993).

The following states also hold that the word “negligence” is not required. See, e.g., Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298, 304 (Md. 1996) (“To be sure, as the weight of authority makes clear . . . the exculpatory clause need not contain or use the word ‘negligence’ or any other ‘magic words.'”); Cudnik v. William Beaumont Hosp., 207 Mich. App. 378, 525 N.W.2d 891, 894 n.3 (Mich. App. 1994) (holding exculpatory agreement executed by patient before receiving radiation therapy was void as against public policy, but noting that exculpatory clause was not void for ambiguity because it “quite clearly attempts to absolve defendant of all liability ‘of every kind and character’ arising out of the radiation therapy” despite no reference to negligence); Mayfair Fabrics v. Henley, 48 N.J. 483, 226 A.2d 602, 605 (N.J. 1967) (“But there are no required words [*29] of art and, whatever be the language used or the rule of construction applied, the true goal is still the ascertainment and effectuation of the intent of the parties.”); Reed v. Univ. of N.D., 1999 ND 25, 589 N.W.2d 880, 885-86 (N.D. 1999); Estey v. MacKenzie Eng’g Inc., 324 Ore. 372, 927 P.2d 86, 89 (Or. 1996) (noting that the Supreme Court of Oregon had previously upheld clauses releasing others from liability “‘from whatever cause arising,'” and “‘all liability, cost and expense,'” and declining “to hold that the word ‘negligence’ must expressly appear in order for an exculpatory or limitation of liability clause to be effective against a negligence claim”); Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188, 190 (Tenn. 1973); Russ v. Woodside Homes, Inc., 905 P.2d 901, 906 (Utah Ct. App. 1995); Fairchild Square Co. v. Green Mountain Bagel Bakery, Inc., 163 Vt. 433, 658 A.2d 31, 34 (Vt. 1995); Scott ex rel. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 9-10 (Wash. 1992) (en banc) (rejecting proposed requirement of “the word ‘negligence’ or language with similar import” and holding “[c]ourts should use common sense in interpreting purported releases, and the language ‘hold harmless . . . from all claims’ logically includes negligent conduct”); Murphy v. N. Am. River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504, 511 (W. Va. 1991); Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334, 341 (Wis. 2005) (noting that “this court has never specifically required exculpatory clauses to include the word ‘negligence,'” but has recognized that its inclusion would be “very helpful”); Schutkowski v. Carey, 725 P.2d 1057, 1061 (Wyo. 1986) (adopting a “common sense” approach “based on the clear intent of the parties rather than specific ‘negligence’ terminology” for interpreting exculpatory clauses); Sanchez v. Bally’s Total Fitness Corp., 68 Cal. App. 4th 62, 79 Cal. Rptr. 2d 902, 904 (Cal. Ct. App. 1998)⁹ (noting that courts look to the intent of the parties [*30] and use of the term “negligence” is not dispositive); Neighborhood Assistance Corp. v. Dixon, 265 Ga. App. 255, 593 S.E.2d 717 (Ga. Ct. App. 2004); Finagin v. Ark. Dev. Fin. Auth., 355 Ark. 440, 139 S.W.3d 797 (Ark. 2003) (noting that courts are not restricted to the literal language of the contract and will consider the facts and circumstances surrounding the execution of the release to determine the intent of the parties).¹⁰

9 In Benedek v. PLC Santa Monica, LLC, 104 Cal. App. 4th 1351, 129 Cal. Rptr. 2d 197 (Cal. Ct. App. 2002), the injured party did not contend that the release is ineffective due to the ambiguity of the language. Thus, Division Five of the Second Appellate District did not address this issue. However, California law appears to provide that a release need not achieve perfection, but “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.”

10 It is also evident that federal courts in circuits finding complete limitations on liability enforceable in maritime contracts hold that express reference to the terms “negligence” or “negligent acts” is not required. See Cook v. Crazy Boat of Key West, Inc., 949 So. 2d 1202 (Fla. 3d DCA 2007) (“State laws requiring specific reference to the releasee’s negligence therefore conflict with federal law and may not be applied in cases involving federal maritime law.”).

Other jurisdictions, however, require express use of the terms “negligence” or “negligent acts.” See Sweeney v. City of Bettendorf, 762 N.W.2d 873, 878-79 (Iowa 2009) (requiring specific reference to exculpee’s own negligence); McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C. 242, 612 S.E.2d 462 (S.C. Ct. App. 2005); [*31] Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct. App. 1998); Morganteen v. Cowboy Adventures, Inc., 190 Ariz. 463, 949 P.2d 552 (Ariz. Ct. App. 1997); Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337-38 (Mo. 1996) (holding that express language is required because “[o]ur traditional notions of justice are so fault-based that most people might not expect such a relationship to be altered, regardless of the length of an exculpatory clause, unless done so explicitly”); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508-09 (Tex. 1993) (applying an “express negligence doctrine” because “indemnity agreements, releases, exculpatory agreements, or waivers, all operate to transfer risk” and such agreements are “an extraordinary shifting of risk”); Macek v. Schooner’s Inc., 224 Ill. App. 3d 103, 586 N.E.2d 442, 166 Ill. Dec. 484 (Ill. App. Ct. 1991); Kissick v. Schmierer, 816 P.2d 188, 190-91 (Alaska 1991).¹¹ The Supreme Court of Connecticut held that express language was required explaining that

A person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing. A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights. Furthermore, the requirement that parties seeking to be released from liability for their negligence expressly so indicate does not impose on them any significant cost.

Hyson v. White Water Mountain Resorts of Conn., Inc., 265 Conn. 636, 829 A.2d 827, 831 (Conn. 2003). In New York, the Court of Appeals of New York held that in order for a party to shed [*32] its ordinary responsibility of due care, express use of the terms “negligence,” “negligent acts,” or words conveying a similar import are required because although parties may be alerted to dangers inherent in dangerous activities, “it does not follow that [parties are] aware of, much less intended to accept, any enhanced exposure to injury occasioned by the carelessness of the very persons on which [the parties] depend[] for [his or her] safety. . . . Thus, whether on a running reading or a careful analysis, the agreement could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.” Gross, 400 N.E.2d at 309-11.

11 In Alaska, however, indemnification agreements do not require specific words regarding indemnity for the indemnitee’s own negligence. Kissick, 816 P.2d at 192 (Compton, J., dissenting) (citing Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976)).

Although we agree that it may be better practice to expressly refer to “negligence” or “negligent acts” in an exculpatory clause, we find that the reasoning employed by the states that do not require an express reference to render an exculpatory clause effective to bar a negligence action [*33] is more persuasive, particularly in the context presented here. As discussed above, the courts’ basic objective in interpreting a contract is to give effect to the parties’ intent. Further, as the United States Supreme Court has observed, [HN13] contract interpretation is largely an individualized process “with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention.” United States v. Seckinger, 397 U.S. 203, 212 n.17, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970). As a result, we are reluctant to hold that all exculpatory clauses that are devoid of the terms “negligence” or “negligent acts” are ineffective to bar a negligence action despite otherwise clear and unambiguous language indicating an intent to be relieved from liability in such circumstances. Application of such a bright-line and rigid rule would tend to not effectuate the intent of the parties and render such contracts otherwise meaningless.¹² The contract at issue demonstrates as much.

12 In a concurring opinion in Florida Department of Financial Services v. Freeman, Justice Cantero referred to several Florida Supreme Court cases discussing the freedom of contract and noted that this Court had previously recognized that [HN14] “‘while there is no such [*34] thing as an absolute freedom of contract, nevertheless, freedom is the general rule and restraint is the exception.'” 921 So. 2d 598, 607 (Cantero, J., concurring) (quoting Larson v. Lesser, 106 So. 2d 188, 191 (Fla. 1958)). Further, Justice Cantero noted that “[t]his freedom . . . ‘includes freedom to make a bad bargain.'” Id. at 607 (quoting Posner v. Posner, 257 So. 2d 530, 535 (Fla. 1972)). Finally, Justice Cantero acknowledged that courts may not “‘rewrite contracts or interfere with freedom of contracts or substitute [their] judgment for that of the parties to the contract in order to relieve one of the parties from apparent hardships of an improvident bargain.'” Id. at 607 (quoting Quinerly v. Dundee Corp., 159 Fla. 219, 31 So. 2d 533, 534 (Fla. 1947)).

The wish request form and liability release form signed by the Sanislos released Give Kids the World and all of its agents, officers, directors, servants, and employees from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish. . . .” The language of the agreement then provided that the scope of the agreement included “damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind. . . .” This agreement clearly conveys that Give Kids the World would be released [*35] from any liability, including negligence, for damages, losses, or injuries due to transportation, food, lodging, entertainment, and photographs. With regard to Give Kids the World and the wish fulfilled for the Sanislos, it is unclear what this agreement would cover if not the negligence of Give Kids the World and its agents, officers, directors, servants, and employees, given that exculpatory clauses are unenforceable to release a party of liability for an intentional tort. See Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760 (Fla. 5th DCA 2008) (citing Kellums v. Freight Sales Ctrs., Inc., 467 So. 2d 816 (Fla. 5th DCA 1985), and L. Luria & Son, Inc. v. Honeywell, Inc., 460 So. 2d 521 (Fla. 4th DCA 1984)). Further, this agreement specifically operates to release Give Kids the World in connection with circumstances that are not inherently dangerous. Thus, this is not a situation where a person of ordinary intelligence would believe that the release “could most reasonably be taken merely as driving home the fact that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur, without any fault of the defendant.” Cf. Gross, 400 N.E.2d at 309-10; Hyson, 829 A.2d at 831 (requiring the use of the word “negligence” in a release pertaining to snowtubing). Accordingly, this agreement would be rendered meaningless if it is deemed ineffective to bar a negligence action solely on the basis of the absence of [*36] the legal terms of art “negligence” or “negligent acts” from the otherwise clear and unequivocal language in the agreement.

Despite our conclusion, however, we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions. As noted previously, [HN15] exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care. Applegate, 974 So. 2d at 1114 (citing Cain, 932 So. 2d at 578); see Levine, 516 So. 2d at 1103 (“The rule is that an exculpatory clause may operate to absolve a defendant from liability arising out of his own negligent acts, although such clauses are not favored by the courts.”); Goyings, 403 So. 2d at 1146 (same). Further, exculpatory clauses are only unambiguous and enforceable where the language unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away. Cain, 932 So. 2d at 578 (citing Gayon, 802 So. 2d at 420); Raveson, 793 So. 2d at 1173; cf. Univ. Plaza, 272 So. 2d at 509 (“‘A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms.'”). Moreover, as we stated in University Plaza, this [*37] Court’s “basic objective . . . is to give effect to the intent of the parties. . . .” Id. at 511 (emphasis deleted). Accordingly, our decision is merely a rejection of the Sanislos’ invitation to extend University Plaza, which applies to indemnity agreements, to exculpatory clauses.

CONCLUSION

For the foregoing reasons, we conclude that [HN16] the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not render the agreement per se ineffective to bar a negligence action. Accordingly, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980).

It is so ordered.

LABARGA, C.J., and PERRY, J., concur.

CANADY and POLSTON, JJ., concur in result.

LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ., concur.

DISSENT BY: LEWIS

DISSENT

LEWIS, J., dissenting.

Today the majority leaves our most vulnerable citizens open to catastrophe from those who seek to shield themselves from their own fault. Florida precedent mandates that because the advance liability release and hold harmless agreement signed by the Sanislos did not explicitly and unambiguously warn that Give Kids the World [*38] would be released and held harmless for its own failure to exercise reasonable care as previously outlined and required under Florida law, no such waiver was made. I disagree with the decision of the majority that such explicit warning is required only for valid indemnity agreements, but not for combined releases, indemnification, and hold harmless agreements, such as the document in this case.

In University Plaza Shopping Center v. Stewart, 272 So. 2d 507, 509 (Fla. 1973), the Court considered whether an indemnity agreement in which one party agreed to indemnify another for “any and all claims” included those that arose solely out of the negligence of the indemnitee. The Court concluded that indemnification agreements will be effective against the negligence of the indemnitee only if that intention is expressed in clear and unequivocal terms. Id. The Court then held that an agreement to indemnify against “any and all claims” does not clearly and unequivocally express the intent to include claims that result exclusively from the negligence of the indemnitee. Id. at 511. The majority provides no logical basis to ignore that well established principle.

As the majority recognizes but fails to apply, exculpatory clauses that protect a party from his or her own negligence [*39] are disfavored. See Slip Op. at 7, 32; see also Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979). Based on this policy, the Court in Charles Poe Masonry extended the holding of University Plaza to apply even where the indemnified party is jointly liable with the indemnitor. See id. at 489-90 (“Under classical principles of indemnity, courts of law rightfully frown upon the underwriting of wrongful conduct, whether it stands alone or is accompanied by other wrongful acts.”). Additionally, courts strictly construe exculpatory clauses against the party that seeks to be relieved of liability. See Cain v. Banka, 932 So. 2d 575, 580 (Fla. 5th DCA 2006); see also Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920, 922 (Fla. 3d DCA 1998). Courts have consistently required that explicit language be used in agreements that attempt to contract away liability for one’s own negligence, and the language must be sufficiently clear and understandable such that an ordinary and knowledgeable person will comprehend the rights that he or she relinquishes. Gillette v. All Pro Sports, LLC, 135 So. 3d 369, 370 (Fla. 5th DCA 2014). The language here has previously been held to be insufficient. The public policy that disfavors exculpatory clauses should apply with equal force to all contracts that operate to remove a party’s obligation to act with reasonable care.

Moreover, a hold harmless agreement is simply another term for an indemnification agreement. See 42 [*40] C.J.S. Indemnity § 23 (2014) (“The term ‘hold harmless’ means to fully compensate the indemnitee for all loss or expense, and an agreement to hold harmless is a contract of indemnity that requires the indemnitor to prevent loss to the indemnitee or to reimburse the indemnitee for all losses suffered from the designated peril.”) (footnotes omitted); see also Black’s Law Dictionary 887 (10th ed. 2014) (stating that “indemnity clause” may also be termed “hold-harmless clause”). Accordingly, because the Court has previously held that indemnification agreements are ineffective against the negligence of the party being indemnified unless they clearly and explicitly state this intent in language that can be understood by an ordinary and knowledgeable person, agreements to release and hold harmless without such language should be deemed similarly ineffective.

The rational basis for this principle of law is that a general release and hold harmless agreement may not sufficiently warn the untrained signing party that the other party will not be responsible for its own negligent acts. The signing party may instead understand the contract as an agreement that exempts the other party from any injury [*41] that occurs as a result of a third party. For example, in this case, the Sanislos signed a contract that was both a release and a hold harmless agreement, and a number of other entities were involved in carrying out the wish that Give Kids the World granted, including food vendors and transportation providers. The Sanislos could have understood that Give Kids the World would not be liable for the negligence of these other entities, and may not have understood that Give Kids the Worlds would not be liable for its own negligence. As established under Florida law, a specific provision that explicitly states that a party will be released and held harmless for liability for its own negligence would clarify the nature of the release so that individuals would have full knowledge of what risks they undertake by signing such a contract. There simply is no rational or logical legal reasoning that would require one to explicitly state a party will be indemnified for its own negligence as a condition of validity as is the current law, but not required to do so if that agreement also includes a release!

For these reasons, I dissent.

PARIENTE and QUINCE, JJ., concur.

G-YQ06K3L262

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More than allegations and plaintiff’s testimony to sustain a motion for summary judgment for a binding defect in West Virginia

Posted: February 16, 2015 | Author: Recreation Law | Filed under: Release (pre-injury contract not to sue), Skiing / Snow Boarding, West Virginia | Tags: Adidas America Incorporated, Appellees, Binding, Coal River Canoe Livery, Dynastar, Elk Mountain Outfitters, Elk River Outfitters, Inc., Ltd., Negligence, Product liability, Salomon North American, ski area, Ski Rental, Skis Dynastar, Snowshoe, Toe Piece, West Virginia | Leave a comment

Failure of the plaintiff to keep the broken binding or have any other proof the binding broke would have changed the outcome of the case.

State: West Virginia

Plaintiff: Daniel Mrotek

Defendant: Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Appellees, and Elk Mountain Outfitters, Inc., v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc.

Plaintiff Claims: negligence and product liability

Defendant Defenses: Plaintiff did not produce any evidence of negligence on the part of the defendant. Alternatively, the court found that plaintiff signed a valid release.

Year: 2003

Holding: for the defendant

The plaintiff from Florida with a group of friends went to Snowshoe Ski Area in West Virginia for four days of skiing. He first rented skis from the defendant. While renting he signed a release.

While skiing he fell. He claimed the toe piece of one of the bindings came off. Both the plaintiff and one of his friends testified they through the toe piece away.

The plaintiff exchanged the skis for another pair with the defendant. The defendant testified the skis were in good condition and rented out the next day. The plaintiff did not report the ski binding failed nor did he report an accident to anyone.

Upon the plaintiff’s return to Florida, he was suffering head aches and blurred vision. He eventually needed four surgeries and had a permanent shunt placed in his head.

The plaintiff sued the defendant rental business. The rental business filed claims against the ski and binding manufacturer as third party defendants. The trial court, called a Circuit Court in West Virginia dismissed the claims of the plaintiff against the defendant. By doing so the third party claims are also dismissed against the third party defendants. The plaintiff appealed.

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

The basis of the court’s ruling in favor of the defendant was the plaintiff “failed to identify any act or omission allegedly committed by EMO, which in any way caused or contributed to the alleged skiing accident.” In a negligence claim, the negligence must be proved, it cannot be imputed or presumed.

“Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”

After examining all the evidence the court found” The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing.”

The defendant had no evidence of a broken ski or binding. The plaintiff had not told the defendant the binding was broken and had not registered a claim. No third party saw the broken binding other than the friend who testified it had been thrown away.

The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.

In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case.

So Now What?

This case would have been totally different if the plaintiff had kept the toe piece, photographed it or pointed out the problem to a third party or the defendant; anything to support his claim other than his statements.

The main reason for this statement is releases in West Virginia have been disfavored whenever they reach the West Virginia Supreme Court. (See States that do not Support the Use of a Release.)

The defendant did the correct thing by following the protocol set up by the ski rental industry. The ski was examined, and nothing was found to be defective so the ski and binding were rented out the next day. If necessary, the defendant could have brought in the rental receipts showing the ski and bindings had been rented and how often after the plaintiff’s incident.

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Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

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Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

Posted: February 16, 2015 | Author: Recreation Law | Filed under: Legal Case, Release (pre-injury contract not to sue), Skiing / Snow Boarding, West Virginia | Tags: Binding, Negligence, Product liability, ski area, Ski Rental, Snowshoe, Toe Piece, West Virginia | Leave a comment

Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

Daniel Mrotek, an Individual, Plaintiff Below, Appellant, v. Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Defendants below, Appellees, and Elk Mountain Outfitters, Inc., A Corporation, Defendant/Third-Party Plaintiff Below, Appellees, v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc., Third-Party Defendants Below, Appellees.

No. 31395

SUPREME COURT OF APPEALS OF WEST VIRGINIA

214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179

November 18, 2003, Submitted

December 3, 2003, Filed

PRIOR HISTORY: [***1] Appeal from the Circuit Court of Pocahontas County. Honorable James J. Rowe, Judge. Civil Action No. 99-C-37.

DISPOSITION: AFFIRMED.

SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

2. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus point 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

COUNSEL: Larry E. Losch, William A. McCourt, Jr., Summersville, West Virginia, Attorneys for Appellant.

William J. Hanna, Robert P. Lorea, Flaherty, Sensabaugh & Bonasso, Charleston, West Virginia, Attorneys for Appellee, Elk Mountain Outfitters, Inc.

Rob J. Aliff, Jackson & Kelly, Charleston, West Virginia, Attorney for Appellee, Skis Dynastar.

Robert M. Steptoe, Jr. [***2] , Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for Appellee, Adidas American, Inc.

M. Hance Price, Steptoe & Johnson, Martinsburg, West Virginia, Attorney for Adidas American, Inc.

OPINION

[*491] [**684] Per Curiam:

This appeal was filed by Daniel Mrotek, appellant/plaintiff below (hereinafter referred to as “Mr. Mrotek”), from an order of the Circuit Court of Pocahontas County granting summary judgment in favor of Coal River Canoe, Ltd., d/b/a Elk Mountain Outfitters, Inc. (hereinafter referred to as “EMO”), appellee/defendant below. Mr. Mrotek filed an action against EMO alleging that he sustained injuries as a result of his use of an allegedly defective ski that he rented from EMO. The circuit court granted summary judgment on two alternative grounds. The circuit court found that Mr. Mrotek did not produce any evidence of negligence on the part of EMO. Alternatively, the court found that Mr. Mrotek signed a valid release of his right to sue EMO for any injury caused by its equipment. In this appeal, Mr. Mrotek contends that genuine issues of material fact are in dispute as to whether EMO supplied him with a defective ski and that the release from liability he signed was unenforceable. [***3] Upon review of the briefs and record in this case, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Mr. Mrotek is a resident of Florida. On December 28, 1997, Mr. Mrotek and a group of seven friends came to Snowshoe, West Virginia, for a four day skiing vacation. Upon their arrival, Mr. Mrotek and some of his companions rented skiing equipment from EMO. As part of the rental transaction, EMO required all customers to read and execute a document releasing EMO from any harm caused by its equipment. Mr. Mrotek signed the release.

Shortly after renting the ski equipment, Mr. Mrotek and his companions ventured off to engage in night skiing. During the first run of the evening Mr. Mrotek fell and apparently hit his head. A skiing companion, Herman Serpa, saw Mr. Mrotek fall and came to his aid. Mr. Serpa states that he noticed that a toe binding on Mr. Mrotek’s right ski was missing. Mr. Serpa states that he found the toe binding with three rusty screws protruding from it. The toe binding was allegedly thrown away by either Mr. Serpa or Mr. Mrotek. However, neither man appears to have recalled who threw away the toe binding.

Mr. Serpa allegedly returned the defective ski and received [***4] a replacement. Mr. Mrotek did not report the incident to EMO even though, as a result of the fall, he allegedly “became very dizzy, sick at his stomach with vomiting along with severe headaches.”

Upon returning to Florida, Mr. Mrotek sought medical treatment for blurred vision, nausea and exhaustion. A medical examination revealed Mr. Mrotek suffered from Papilledema, i.e., fluid on the brain caused by a damaged ventricle. On February 16, 1998, Mr. Mrotek underwent surgery to place a shunt in his skull to drain the excess fluid. Due to complications, Mr. Mrotek eventually underwent three more surgeries. Although Mr. Mrotek has recovered from the problems caused by the excess fluid, he must permanently have “a small tube running underneath his skin from his brain down his neck and into his heart to maintain the pressure and stability inside his skull.”

Mr. Mrotek filed this action against EMO [**685] [*492] in 1999, ¹ alleging EMO supplied him with a defective ski which caused him to fall and sustain a head injury. ² After a period of discovery, EMO moved for summary judgment. By order entered June 17, 2002, the circuit court granted summary judgment in favor of EMO. ³ This appeal is a result [***5] of the circuit court’s ruling.

1 The record submitted on appeal is extremely sparse and does not contain the pleadings.

2 EMO filed a third-party complaint against the suppliers of the ski, Skis Dynastar, Inc. and Salomon North American, Inc., for indemnity or contribution.

3 The circuit court’s order also dismissed EMO’s third-party complaint.

II.

STANDARD OF REVIEW

The standard for our review of an order granting summary judgment is well established. [HN1] “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Insofar as “‘appellate review of an entry of summary judgment is plenary, this Court, like the circuit 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.'” Provident Life and Accident Ins. Co. v. Bennett, 199 W. Va. 236, 238, 483 S.E.2d 819, 821 (1997) (quoting [***6] Asaad v. Res-Care, Inc., 197 W. Va. 684, 687, 478 S.E.2d 357, 360 (1996)). We have made clear that [HN2] “summary judgment is appropriate [only] if ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'” Pritt v. Republican Nat’l Comm., 210 W. Va. 446, 452, 557 S.E.2d 853, 859 (2001) (quoting W. Va.R. Civ. P. 56(c)). Further, [HN3] “summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syl. pt. 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). With these standards as our guide, we now address the issues asserted on appeal.

III.

DISCUSSION

The dispositive issue in this case is the determination by the circuit court that Mr. Mrotek “failed to identify any act or omission allegedly committed by EMO which in any way caused or contributed to the alleged skiing accident.” [HN4] This Court has observed that “it is an elementary principle [***7] of law that negligence will not be imputed or presumed. The bare fact of an injury standing alone, without supporting evidence, is not sufficient to justify an inference of negligence.” Walton v. Given, 158 W. Va. 897, 902, 215 S.E.2d 647, 651 (1975). ⁴ Moreover, [HN5] “negligence . . . is a jury question when the evidence is conflicting or the facts are such that reasonable men may draw different conclusions from them.” Burgess v. Jefferson, 162 W. Va. 1, 3, 245 S.E.2d 626, 628 (1978).

4 Mr. Mrotek contends that the doctrine of res ipsa loquitur should be applied to the facts of this case to overcome summary judgment. [HN6] “Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Syl. pt. 4, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997). Clearly, under the Foster formulation of [HN7] res ipsa loquitur, the doctrine simply has no application to falling while skiing–which is an extremely frequent incident that can occur without any negligence. See Syl. pt. 2, Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991) [HN8] (“The doctrine of res ipsa loquitur cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed, or when it may be inferred that there was no negligence on the part of the defendant. The doctrine applies only in cases where defendant’s negligence is the only inference that can reasonably and legitimately be drawn from the circumstances.”).

[***8] The primary evidence relied upon by Mr. Mrotek was the deposition [**686] testimony of Mr. Serpa. Mr. Mrotek presented the deposition [*493] testimony of Mr. Serpa to show that the toe binding on the right ski came loose. Mr. Serpa testified that he found a piece of the binding with three rusty screws protruding from it. There was also testimony by Mr. Serpa that he returned the defective ski to EMO and was given a replacement. There was also evidence to show that the skis rented by Mr. Mrotek were not tested for weakness by EMO prior to 1997-98 ski season.

EMO took the position that nothing happened to the skis that were rented to Mr. Mrotek. According to EMO’s records the skis rented to Mr. Mrotek were returned in good condition and were rented out again the day after Mr. Mrotek returned them. EMO presented an affidavit from its management employee, Charlie McDaniels. Mr. McDaniels indicated that the bindings used on the skis rented by EMO were made of aluminum or were galvanized and would not rust.

In looking at the evidence in the light most favorable to Mr. Mrotek, we do not find a material issue of fact in dispute. EMO presented evidence to establish that no defect existed in the skis rented [***9] to Mr. Mrotek. In fact, there was evidence that Mr. Mrotek examined the skis before renting them and found nothing wrong. EMO also established that they had no record to show that Mr. Serpa or Mr. Mrotek turned in a broken ski. Mr. Mrotek presented bare testimonial evidence to show that a toe binding broke loose from the right ski. No actual evidence was introduced showing the defective ski or the parts that were allegedly broken from the ski. See Williams v. Precision Coil, Inc., 194 W. Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995) [HN9] (“Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”). The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing. [HN10] The mere fact of falling while skiing is not actionable negligence. See Painter v. Peavy, 192 W. Va. 189, 192-93, 451 S.E.2d 755, 758-59 (1994) [HN11] (“The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.”); Syl. pt.1, in part, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981) [***10] [HN12] (“In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case. ⁵

5 Because we affirm the circuit court’s initial reason for granting summary judgment, we need not address the issue involving the release signed by Mr. Mrotek.

IV.

CONCLUSION

In view of the foregoing, the circuit court’s order granting summary judgment in favor of EMO is affirmed.

Affirmed.

Georgia court finds no requirement for an employee to intervene when higher trained first aid providers are present.

Posted: November 24, 2014 | Author: Recreation Law | Filed under: Georgia, Health Club, Minors, Youth, Children | Tags: American Heart Association, Automated external defibrillator, duty, first aid, Fraud, GA, Georgia, Higher Medical Authority, Negligence, Proximate Causation, Proximate Cause, y, YMCA | Leave a comment

Sixteen-year-old collapsed at the defendant’s YMCA. A sheriff’s deputy and EMT provided CPR. The court held that the congenital heart disease had no causal connection to Y’s negligence if there was any. The court also held the Y was not negligent because the employees did nothing, because highly trained medical personnel were already attending to the victim.

State: Georgia, Court of Appeals

Plaintiff: James and Jennifer Goins

Defendant: The Family YMCA

Plaintiff Claims: negligence and fraud

Defendant Defenses: No duty and proximate causation

Holding: for the defendant

Year: 2014

The plaintiffs are the parents of a sixteen-year-old who died walking on a treadmill at the defendant Family Y (YMCA). It was determined the deceased died from congenital heart disease.

The plaintiffs brought their son to the YMCA to get ready for baseball season and to lose some weight. They chose the Y because it was a safe and positive environment with adequate well-trained employees “on hand at all times and that these employees would have access to life-saving equipment and would know how to use it.”

(This is an example of looking at the website and brochure post-accident and looking for information or is this why they picked the Y?)

An employee of the Y saw the deceased fall and immediately called 911. She did not go to the deceased because she said there was a sheriff’s deputy who was a first responder and had another first aid training attending to the deceased. Soon thereafter, an EMT also assisted the deceased.

The parents, plaintiff’s, sued the defendant because their son:

…was under the “personal care” of a Y employee who had no CPR or first aid training, in spite of representations made by the fitness center. The Goins also claimed that the Y employees stood around and did nothing after Brant collapsed. The complaint alleged that the AED or defibrillator was locked away and not available in case of emergency. There was also a fraud count in which the Goins contended that the Y made misrepresentations to them that led them to believe that the Y was a “safe and positive” environment for their son.

The trial court dismissed their claims, and the plaintiff’s appealed.

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

The first issue was whether there was a duty to render first aid and whether the representations that the Y misled the parents. The court first outlined the requirements to prove negligence in Georgia.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law.

The plaintiffs argued there was a special relationship between themselves and the Y because the Y assumed a special duty to supervise minor children. The appellate court shot down that argument with one sentence. “Brant Goins was 16 years of age and the only duty undertaken by the Y was to provide him with a personal trainer to help him lose weight. It is undisputed that this is what occurred.”

The second issue on appeal was the negligence claim. As stated above to prove negligence, there must be a connection between the injury and the breach of the duty. Here the duty was alleged to be a lack of training, as advertised by the Y., However, the court could not find a connection. CPR would not have saved the deceased’s life and the people attempting to do so were better trained then the employees. “…the [plaintiff’s] cannot show a causal connection between Mason’s or any other employee’s lack of CPR training and Brant Goins’ death.” A casual connection is less than the proximate causation required to prove negligence.

It is undisputed that there was an emergency medical technician, and a deputy sheriff trained as a first-responder present at the time of Brant’s collapse. There would have been no reason for a Y employee to interfere with the care being given by the two qualified first responders.

The final issue was the fraud claim. The fraud claim was based on the allegations that the Y promised the plaintiff’s that the YMCA was a safe and positive environment and that there would be adequate and well-trained employees, and the employees would have access to life-saving equipment.

There was not argument that this did not occur. The plaintiff’s then tried to tie together the fact these things did not occur and that because their son had died, proving negligence. (The absence of facts does not prove a point in most cases and those facts that exist must link to each other in a legal way.) However, the court did not find this to be proved either.

Even assuming that the Goins could establish the other elements of their fraud claim, they can show no damage as the result of this claimed fraud. The EMT and the deputy were clearly the most highly trained people present in administering CPR. Neither called for a defibrillator and both testified that a defibrillator, would not be used on someone with a pulse who was still breathing.

Not brought up in the decision on this argument was proximate causation. There was no connection between the facts that if the Y had not done any of the issues pled in the fraud that the misrepresentation had anything to do with the death of their son.

The appellate court affirmed the lower court’s decision.

So Now What?

First, it is great to have a court require a special relationship or acceptance of a duty that can be proved, not just argued and based on trying to tie loose facts together. The Y’s acceptance of the deceased minor to provide a trainer came with no other requirements, and the Y did nothing to create additional duties which it could be held too.

This is critical that in bringing in business, you don’t make promises that either you can’t complete or that may come back to haunt you.

Second, although specifically identified, the issue of higher medical care prevailed. I’ve never seen this issue argued in a case, that the person with the higher medical care, once they step in, are in charge and owes any duty. We are all taught this issue in first aid classes, but courts have never identified it. Here the court uses the argument and supports it.

Too often we start any defense of a lawsuit by lining up the defenses. All too often in the outdoor recreation community, we need to see if (1) we did anything wrong and (2) is there a connection with what was done incorrectly or not done and the injury. That is, was a duty breached and was there a proximate connection between the breach and the injury.

Amazing how a well-argued decision can be so short.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Outdoor Recreation Insurance, Risk Management, and Law

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law. To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

Posted: November 8, 2014 | Author: Recreation Law | Filed under: First Aid, Georgia, Health Club, Legal Case | Tags: Appeal, duty, first aid, Fraud, GA, Georgia, Higher Medical Authority, Judgment as a matter of law, Negligence, Proximate Causation, Proximate Cause, YMCA | 1 Comment

To Read an Analysis of this decision see

Georgia court finds no requirement for an employee to intervene when higher trained first aid providers are present.

Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

Goins et al. v. The Family Y et al.

A13A1778.

COURT OF APPEALS OF GEORGIA

326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

March 25, 2014, Decided

PRIOR HISTORY: Negligence, etc. Richmond Superior Court. Before Judge Annis.

DISPOSITION: [***1] Judgment affirmed.

COUNSEL: Richard H. Goolsby, Sr., for appellants.

Dodson & Associates, Charles R. Beans, for appellees.

JUDGES: ANDREWS, Presiding Judge. Dillard and McMillian, JJ., concur.

OPINION BY: ANDREWS

OPINION

[*522] [**147] Andrews, Presiding Judge.

James and Jennifer Goins sued The Family YMCA (the Y) after their 16-year-old son Brant collapsed while walking on a treadmill at its facility. Brant died before EMTs arrived, and it was later determined that he suffered from a congenital heart disease. The trial court granted the Y’s motion for summary judgment on the Goins’ claims of negligence and fraud. For reasons that follow, we affirm.

The following facts are undisputed. The Goins brought their son Brant to the Y to get him into shape for baseball season and to lose some weight. Brant began training with Greg Mason, a certified personal trainer, and there was no indication at the time that Brant was not in good physical condition. The Goins do not contend that there was anything inappropriate in the level or intensity of the workouts suggested by Mason.

On the day in question, Brant had been walking on the treadmill for a short time when he collapsed. An employee who saw him fall immediately called 911. This employee was trained in CPR, but stated that she did not go over to Brant because there were two “paramedics” [***2] with him. One of the two men was a deputy sheriff who had been a first responder for eight years, was trained in advanced CPR, first aid, and also had life saving training in the Marine Corps. The deputy said that he checked for a pulse and saw that Brant was still breathing. The other man who went over to Brant after he collapsed was an EMT who testified that the deputy was with Goins when he went over to see if he could help. He stated that Brant’s airway was open and he saw him take a breath, but then Brant [*523] appeared to stop breathing. The deputy also testified that he saw Brant take a large breath and then stop breathing. At that point, the deputy and the EMT began CPR. Simultaneously, the ambulance and EMTs arrived on the scene.

The Goins filed this suit, claiming that the Y was negligent in the death of their son because he was under the “personal care” of a Y employee who had no CPR or first aid training, in spite of representations made by the fitness center. The Goins also claimed that the Y employees stood around and did nothing after Brant collapsed. The complaint alleged that the AED or defibrillator was locked away and not available in case of emergency. There was [***3] also a fraud count in which the Goins contended that the Y made misrepresentations to them that led them to believe that the Y was a “safe and positive” environment for their son.

The trial court granted the Y’s motion for summary judgment in a two-sentence order. This appeal followed.

[HN1] To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A [***4] defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Boller v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 693-694 (716 SE2d 713) (2011).

1. The Goins first argue that the trial court erred in finding there was no duty to render first aid to a minor child in the Y’s care when false representations had been made to the child’s parents.

[HN2] The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence [*524] action is whether and to what extent the defendant [***5] owes a legal duty to the plaintiff. This issue is a question of law.

Boller, supra at 695-696. In Boller, plaintiff

claimed that the Arts Center breached its duty of care to her husband, an [**148] invitee, by its failure to have on site either an ambulance or an officer operating an automatic external defibrillator device (“AED”) and by its failure to maintain a safety and security plan to govern the actions of employees and security personnel during a medical emergency.

Id. at 695. This Court held that

the long-established general rule is that [HN3] “[a] person is under no duty to rescue another from a situation of peril which the former has not caused,” even when the peril is foreseeable. We conclude that this case is controlled by our decision in Rasnick v. Krishna Hospitality, where we held that the defendant innkeeper had no legal duty to comply with a wife’s requests that it attempt a rescue of its guest, her husband, from his medical peril. In that case, the defendant did not create the decedent’s underlying medical condition. Similarly, in the case at bar, Boller does not allege that the Arts Center or the concert it sponsored caused her husband’s sudden attack of cardiac arrest.

(Footnotes omitted.) Id. at 696.

Nevertheless, [***6] the Goins argue that a “special relationship” existed in this case, because the Y assumed a special duty to supervise minor children. The Goins cite to several cases not on point. See, e.g., Bull Street Church of Christ v. Jensen, 233 Ga. App. 96 (504 SE2d 1) (1998) (four-year-old victim molested at church); Wallace v. Boys Club of Albany, 211 Ga. App. 534 (439 SE2d 746) (1993) (five-year-old boy abducted from summer camp after employees assured parents that they would watch child and keep track of his whereabouts). (1) Brant Goins was 16 years of age and the only duty undertaken by the Y was to provide him with a personal trainer to help him lose weight. It is undisputed that this is what occurred.¹ There is no merit to this enumeration.

1 The Goins claim that when they signed their son up for a personal trainer at the YMCA, Greg Mason was misrepresented to them as a “certified” personal fitness trainer. This argument is puzzling. The undisputed evidence was that Mason was a certified personal trainer.

[*525] 2. Likewise, for the same reasons discussed in Division 1, the (2) trial court did not err in granting summary judgment on appellants’ negligence claim. Further, and equally important, the Goins [***7] cannot show a causal connection between Mason’s or any other employee’s lack of CPR training and Brant Goins’ death. The Goins’ statement of facts does not refer to the deposition testimony of the deputy sheriff or the EMT. It is undisputed that there was an emergency medical technician and a deputy sheriff trained as a first responder present at the time of Brant’s collapse. There would have been no reason for a Y employee to interfere with the care being given by the two qualified first responders.

3. Next, the Goins claim that the trial court erred in finding no issues of fact on their fraud claim. The Goins alleged in their complaint that they were told that “THE FAMILY Y was a safe and positive environment.” (3) They contend that it was represented to them that there would be adequate well-trained employees on hand at all times and that these employees would have access to life-saving equipment and would know how to use it.

[HN4] To survive a motion for summary judgment on a fraud count, some evidence must support each of the five elements, which are: a false representation by a defendant; scienter; intention to induce the plaintiff to act or refrain from acting; justifiable reliance [***8] by plaintiff; and damage to the plaintiff.

Wertz v. Allen, 313 Ga. App. 202, 207-208 (721 SE2d 122) (2011).

Judgment affirmed. Dillard and McMillian, JJ., concur.

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Another trade associations confuses marketing and law: if you don’t understand the legal meaning of a word don’t use it like you do

Posted: September 3, 2014 | Author: Recreation Law | Filed under: Uncategorized | Tags: Adventure Travel Trade Association, ATTA, California, Duty of care, Law, Negligence, Reasonable person, Standards, Tort, West Virginia | Leave a comment

ATTA article promotes goals for guides worldwide by calling them standards which in the US are the legally lowest possible acceptable level of acting.

The Adventure Travel Trade Association recently posted an article showing their research indicated that no standards existed for guides. Those standards were promoted by the association as needed to promote quality.

We view standards as critical to the future of the adventure travel industry’s success. As it is growing radically in participation numbers, it’s key that the operators expanding and joining the industry be of the best quality.

Their research is slightly flawed. Several states have laws regarding guiding, Colorado, West Virginia, Montana and California. Furthermore, the UIAA control and create guide standards in Europe, the International Climbing and Mountaineering Federation. In Europe, these guide standards are the law in some countries.

The person who promoted the idea for the ATTA gave reasons for the need for standards.

“Why do we need a more universal standard?” asked Moore, “Because the adventure travel sector is growing, because tour operators around the world are demanding it, and because destinations need it to legitimately promote adventure activities”

The idea is to create standards in a proposed group in five areas. Those areas include medical care and technical knowledge.

Based on the article clearly the ATTA is attempting to create qualifications for being a good guide. The unanswered question is, is this being done for safety reasons or for marketing reasons?

No matter the reason, the attempt will create legal problems. Legally, standards are the proof of the poorest quality not the best. A legal standard is the lowest acceptable level of care. If you fall below the legal standard, you have breached a duty of care you may owe to someone. Three examples of this are:

New Jersey Model Jury Instructions state:

5.10A NEGLIGENCE AND ORDINARY CARE – GENERAL

To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances. Negligence then is a departure from that standard of care.

The Restatement of Torts is a compendium of the law.

Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”

Colorado Jury Instructions, the law given to a jury when they go to the jury room to make their decisions about a case defines standard as:

CJI-Civ. 9:9 (CLE Ed. 2009)

Jury instructions define “standard of care” as “a duty to use that degree of care which a person of similar age, experience and intelligence would ordinarily use under the same or similar circumstances.”

If you fall below the standard of care and there is an injury you have breached a duty of care to a guest. You are on your way to helping the injured guest prove you are negligent.

Remember negligence is:

· Duty

· Breach of that Duty

· Injury proximately caused by the Breach of Duty

· Damages

In order to determine if there was a breach of a duty, the jury must determine the standard of care which the defendant fell below. If a trade association lists the requirements for the standard of care, puts them on the Internet or in a book, then the association has helped put its members in a courtroom. The plaintiff instead of struggling to establish the care was below the acceptable level need only to refer to the trade association as proof of the association member’s negligence.

Standards are Not Goals or Minimum Levels of Knowledge or Skill

It is obvious from the article that the association believes the standards will be goals to which its membership will strive for its guides to attain. You can probably post on your door or website that your guides meet the standards as established by your trade association. If that happens, then no matter how much the word safety is thrown out there for proof of the reasoning, the actual reasoning is a marketing program.

Either one will still sink a member.

In effect, you are handing the attorney for an injured guest the keys to open your bank account or insurance policy and take out money by creating or having an association create standards for your industry.

If you want actual examples of this look at the Climbing Wall Association or the Association of Experiential Education. The Climbing Wall Association changed their standards to best practices, and the AEE is about gone. Is the AEE having problems a result of their “standards?” I don’t know. I do know that both organizations were big in creating standards, and their members were sued a lot. See Payouts in Outdoor Recreation

If you don’t have the time or ability or your standards are beat to a pulp in a courtroom then you starting writing meaningless crap for standards. “You should have adequate guides for the number of guests in your group.” That statement has no value and thankfully brings nothing to the courtroom, so why kill a tree by creating it?

Besides can you create one set of standards that work worldwide let along across state lines?

A medical standard is the easiest to use as an example. A standard is created based on US or UK realities. Advanced professional first aid care (EMS) is available within roughly a four-hour window. Your guides are trained in first aid based on that four-hour window.

These standards are then applied to an area where there is no EMS. Transportation to a hospital may take days, and the hospital may not come close to the idea an American may visualize when they think of hospitals.

If a US guest is injured in that area of the world will the standard apply? Yes, you agreed to the standard or the association created the standard. If nothing else the jury will see the standard as what they should use to measure the care the injured guest received.

Are you going to argue to a jury that the standards not to apply because you took the US or EU client to a third-world country? Then the jury may look at you and determine either you should have done something to ensure the safety, which you did not, or you should not have gone there. Why, because you can’t meet the standard of care, your organization created.

Look at a simple cut. On a mountain in Nepal, you would immediately stop the bleeding and bandage the wound. In some jungles of South America or South-East Asia, you may want the wound to bleed a little to help clean the wound of any bacteria or other nasty’s that entered through the cut.

How do you write the standard for Kilimanjaro where the first two days are hiking through a jungle, and the next days are spent on the mountain?

The easiest example was the classic mistake of the AEE’s first set of standards. The standards stated you must pee 100 yards from any water. In the Southwest on river trips, this may get you fined by the federal agency managing the river you are rafting. There you pee in the river. What do you do if your standard violates state or federal law? What if your standard violates a religion?

Time and Upkeep

The biggest issue with standards is upkeep. It takes months, sometimes years to create standards, how do you keep them up to date? You have navigated your way through the difference requirements of different countries, trips and laws and then a law changes, a technique improves or better first aid care becomes available.

How do you go back and re-write the standard? When do you re-write the standard? How do you communicate the new standard? How do you convince your members to change to the new standard after they have spent time training their employees on the old standard and invested money in meeting it?

If you are using the old standard after a new standard comes out do you have a grace period? (No, this was a trick question.)

Just create great ideas. Educate members and guests on what to look for in a good guide. Provide education so guides can get better.

Don’t hang a noose around your member’s necks and call it marketing.

See ATTA Advances Conversation on Adventure Guide Qualification and Performance Standards

For more articles on this topic see:

If you mix up your language, you will be held to the wrong standard in court

Marketing is marketing and Risk Management is not marketing

Can a Standard Impeded Inventions?

If you mix up your language, you will be held to the wrong standard in court

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not

Words: You cannot change a legal definition

For articles on Association Standards have been used to sue members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

Plaintiff uses standards of ACCT to cost defendant $4.7 million

So if you write standards, you can, then use them to make money when someone sues your competitors

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

What do you think? Leave a comment.

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Sa v. Red Frog Events, LLC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

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Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153

Posted: August 31, 2014 | Author: Recreation Law | Filed under: Alaska, Climbing Wall, Legal Case, Release (pre-injury contract not to sue) | Tags: AK, Alaska, Bouldering, Claire Donahue, Climbing Gym, Climbing Wall, Defendant, Donahue, Ledgends, Negligence, Plaintiff, Release, Rock Gym | Leave a comment

To Read an Analysis of this decision see

Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK

Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153

Claire A. Donahue, Appellant and Cross-Appellee, v. Ledgends, Inc. d/b/a Alaska Rock Gym, Appellee and Cross-Appellant.

Supreme Court Nos. S-14910/14929, No. 6932

SUPREME COURT OF ALASKA

2014 Alas. LEXIS 153

August 1, 2014, Decided

NOTICE:

THIS OPINION IS SUBJECT TO CORRECTION BEFORE PUBLICATION IN THE PACIFIC REPORTER. READERS ARE REQUESTED TO BRING ERRORS TO THE ATTENTION OF THE CLERK OF THE APPELLATE COURTS.

PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-10-07305 CI.

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-Plaintiff alleged injured party’s negligence claim failed because a release stated waived risks, used “negligence,” stated important factors in emphasized language, specifically disclaimed liability, did not imply safety standards conflicting with a release, was not contested on public policy grounds, and was not modified by advertising; [2]-The Uniform Trade Practices and Consumer Protection Act, AS 45.50.471 et seq., did not apply because conflicts with a personal injury claim barred assuming such a legislature intent, which “ascertainable loss of money or property” in AS 45.50.531(a) did not state; [3]-It was no clear error to find defendant gym waived Alaska R. Civ. P. 68 attorney’s fees because it only raised its offer of judgment when seeking fees under an indemnity clause, and only raised enhanced fees under Alaska R. Civ. P. 82, before its reconsideration motion.

OUTCOME: Judgment affirmed.

COUNSEL: Christine S. Schleuss, Law Office of Christine S. Schleuss, Anchorage, for Appellant and Cross-Appellee.

Tracey L. Knutson, Girdwood, for Appellee and Cross-Appellant.

JUDGES: Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION BY: MAASSEN

OPINION

MAASSEN, Justice.

I. INTRODUCTION

This case arises from an injury at a climbing gym. Claire Donahue broke her tibia during a class at the Alaska Rock Gym after she dropped approximately three to four-and-a-half feet from a bouldering wall onto the floor mat. Before class Donahue had been required to read and sign a document that purported to release the Rock Gym from any liability for participants’ injuries.

Donahue brought claims against the Rock Gym for negligence and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA). The Rock Gym moved for summary judgment, contending that the release bars Donahue’s negligence claim. It also moved to dismiss the UTPA claims on grounds that the act does not apply to personal injury claims and that Donahue failed to state a prima facie [*2] case for relief under the act. Donahue cross-moved for partial summary judgment on the enforceability of the release as well as the merits of her UTPA claims. The superior court granted the Rock Gym’s motion and denied Donahue’s, then awarded attorney’s fees to the Rock Gym under Alaska Civil Rule 82.

Donahue appeals the grant of summary judgment to the Rock Gym; the Rock Gym also appeals, contending that the superior court should have awarded fees under Alaska Civil Rule 68 instead of Rule 82. We affirm the superior court on all issues.

II. FACTS AND PROCEEDINGS

Ledgends, Inc. does business as the Alaska Rock Gym, a private indoor facility that is open to the public. Its interior walls have fixed climbing holds and routes; for a fee, it provides classes and open gym or free climbing time. There are signs posted around the Rock Gym warning of the dangers of climbing, including falling; at her deposition Donahue did not dispute that the signs were there when she visited the gym.

Donahue had been thinking about trying rock climbing for several years, and she finally decided in March 2008 to attend a class at the Rock Gym called “Rockin’ Women.” She testified that she chose the class because she thought it could be tailored to specific [*3] skill levels, and because she “got the impression [from the advertisements] that that is the type of group it was, that it was a . . . safe way to learn to climb.” She also testified she understood that the essential risk of climbing is falling.

Donahue had no rock climbing experience, but she was an occasional runner and cyclist and had pursued other high-risk athletic activities such as kite-boarding. She had been a river guide on the Colorado River after college. She had engaged in physical occupations such as commercial fishing and construction. She testified that she understood the nature of risky activities and felt competent to decide about them for herself. In connection with other recreational activities, she had signed releases and waivers similar to the one she signed at the Rock Gym. She testified that she understood that parties who sign contracts generally intend to be bound by them.

When Donahue arrived at the Rock Gym for her first class, she was given a document entitled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.” She was aware of the document’s nature and general intent but testified that although [*4] she signed it voluntarily, she did not read it closely.

The release contains nine numbered sections on two single-spaced pages. There is also an unnumbered introductory paragraph; it defines the Rock Gym to include, among others, its agents, owners, participants, and employees, as well as “all other persons or entities acting in any capacity on its behalf.”

Section one of the release contains three paragraphs. The first recites the general risks of rock climbing, including injury and death, and explains that these risks are essential to the sport and therefore cannot be eliminated. The second paragraph lists about a dozen specific risks inherent in rock climbing, including “falling off the climbing wall,” “impacting the ground,” “the negligence of other[s],” and “my own negligence[,] inexperience, . . . or fatigue.” The third paragraph asserts that the gym and its instructors “seek safety, but they are not infallible.” It describes some errors instructors might make, including being ignorant of a participant’s abilities and failing to give adequate warnings or instructions. The final sentence in the third paragraph reads, “By signing this [release], I acknowledge that I AM ULTIMATELY RESPONSIBLE [*5] for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals, or activities.”

Section two begins, “I expressly agree and promise to accept and assume all the risks . . .”; it then highlights the voluntary nature of participation in Rock Gym activities.

Section three is the clause that releases the Rock Gym from liability (the releasing clause). It reads in full,

I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym’s] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].

The next six sections of the release address other issues: indemnification for attorney’s fees, certification that the participant is fit to climb, permission to provide first aid, permission to photograph for promotional purposes, the voluntariness of participation and signing the release, and jurisdiction for claims arising from the release.

The ultimate paragraph is printed in bold. It reads in part,

By signing this [*6] document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.

Finally, centered on the second page, in bold capital letters directly above the signature line, the release reads: “I HAVE HAD SUFFICIENT OPPORTUNITY TO READ THIS ENTIRE DOCUMENT. I HAVE READ AND UNDERSTOOD IT, AND I AGREE TO BE BOUND BY ITS TERMS.”

Donahue’s hand-printed name and the date appear on the first page of the release, and her initials are at the bottom of the page; her signature appears on the second page, along with her printed name, her contact information, and the date.

Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. [*7] During this time she saw other people drop from the wall without injury. After another successful ascent near the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.

The Rock Gym had run various advertisements during the two years preceding Donahue’s accident, using a number of different slogans. One newspaper ad, running on at least three occasions, stated: “[T]the only safe place in town to hang out.” Another Rock Gym ad showed an adult bouldering and a child climbing while harnessed; its text contained the same slogan and added, in part, “Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.” A third ad described climbing programs for everyone in the family and said, “[Y]ou have nothing to lose and everything to gain.” In an affidavit, Donahue testified she had read these ads.

Donahue [*8] sued the Rock Gym for negligent failure to adequately train and supervise its instructors. She alleged that the Rock Gym was liable for its employee’s negligent instruction to drop from the bouldering wall. She also alleged a violation of the Unfair Trade Practices and Consumer Protection Act, contending that the Rock Gym’s advertisements “misleadingly advertised [the gym] as a safe place where users of its services had nothing to lose and everything to gain.”

The Rock Gym moved for summary judgment on all of Donahue’s claims. She opposed the motion and cross-moved for partial summary judgment herself, arguing that the Rock Gym had violated the UTPA as a matter of law and that the release she had signed was null and void.

The superior court granted the Rock Gym’s motion and denied Donahue’s cross-motion. It then granted the Rock Gym, as prevailing party, partial attorney’s fees under Civil Rule 82(a)(3).

III. STANDARDS OF REVIEW

[HN1] We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.¹ In making this determination, we construe the facts in favor of the non-moving party.² If the record fails to reveal a genuine factual dispute and the moving [*9] party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.³

1 Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013) (citing Yost v. State, Div. of Corps., Bus. & Prof’l Licensing, 234 P.3d 1264, 1272 (Alaska 2010)).

2 Id. (citing McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001)).

3 Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012).

[HN2] We decide questions of law, including statutory interpretation, using our independent judgment.⁴ We will adopt the most persuasive rule of law in light of precedent, reason, and policy.⁵ This requires us, when interpreting statutes, to “look to the meaning of the language, the legislative history, and the purpose of the statute.”⁶

4 Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003).

5 ASRC Energy Servs. Power & Commc’ns, LLC v. Golden Valley Electric Ass’n, 267 P.3d 1151, 1157 (Alaska 2011).

6 Id.

[HN3] “A superior court’s determination whether waiver occurred is a question of fact that we review for clear error.”⁷

7 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).

IV. DISCUSSION

A. The Release Is Enforceable And Bars Donahue’s Negligence Claims.

Three cases define Alaska law on pre-activity releases from liability.⁸ [HN4] These cases consistently state that such releases are not per se invalid;⁹ in each of the cases, however, we concluded that the release at issue did not bar the plaintiff’s claim.

8 Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991).

9 Kerr, 91 P.3d at 961-62 (noting that “under Alaska law pre-recreational exculpatory releases are held to a very high standard of clarity”); Moore, 36 P.3d at 631 (noting that “an otherwise valid release is ineffective when releasing a defendant from liability would violate public policy” (emphasis added)); Kissick, 816 P.2d at 191 (“A promise not to [*10] sue for future damage caused by simple negligence may be valid.” (quoting 15 Samuel Williston, A Treatise on the Law of Contracts § 1750A, at 143-45 (3d ed. 1972)); see also Mitchell v. Mitchell, 655 P.2d 748, 751 (Alaska 1982) (upholding provision not to sue in settlement agreement and noting that, “[a]s a matter of law, . . . a valid release of all claims will bar any subsequent claims covered by the release”).

Kissick v. Schmierer involved a plane crash that caused the deaths of all four people aboard.¹⁰ The three passengers had signed a covenant not to sue before they boarded the plane.¹¹ They agreed in the release not to bring a claim “for any loss, damage, or injury to [their] person or [their] property which may occur from any cause whatsoever.”¹² When the passengers’ surviving spouses filed wrongful death claims against the pilot, their claims were allowed to proceed despite the release.¹³ We ruled that [HN5] “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.”¹⁴ We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do.¹⁵ Further, since liability for “death” was not specifically disclaimed and the term “injury” [*11] was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.¹⁶

10 Kissick, 816 P.2d at 188.

11 Id. at 189.

12 Id.

13 Id.

14 Id. at 191 (citations omitted).

15 Id. (citing W.Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 483-84 (5th ed.1984) (footnotes omitted)).

16 Id. at 191-92.

The second case, Moore v. Hartley Motors, involved an injury during a class on driving all-terrain vehicles (ATVs).¹⁷ We first addressed whether the plaintiff’s signed release violated public policy.¹⁸ We noted that the type of service involved was neither essential nor regulated by statute;¹⁹ these factors, along with the voluntariness of the plaintiff’s participation, persuaded us that the defendants ²⁰ had no “decisive advantage in bargaining strength.”²¹ We therefore held that the release did not violate public policy.²²

17 36 P.3d 628, 629 (Alaska 2001).

18 Id. at 631-32.

19 Id. at 631-32 (noting that ATV riding is similar to parachuting, dirt biking, and scuba diving, for which releases have been upheld in other jurisdictions).

20 The defendants included the dealer that sold the plaintiff the ATV and referred her to the safety course, the ATV Safety Institute that developed the curriculum, and the individual instructor. Id. at 629.

21 Id. at 631-32.

22 Id.

We did decide, however, that the release did not conspicuously and unequivocally [*12] express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass.²³ The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.”²⁴ We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore improper.²⁵

23 Id. at 632.

24 Id.

25 Id. at 633-34.

The third case, Ledgends, Inc. v. Kerr, involved the same rock gym as this case.²⁶ It involved a similar injury as well, sustained when the plaintiff fell from a bouldering wall.²⁷ Unlike Donahue, however, who landed squarely on the floor mat, the plaintiff in Kerr was allegedly injured when her foot slipped through the space between two floor mats.²⁸ The plaintiff alleged the gym knew of the defect in the landing area but had failed to fix it.²⁹

26 91 P.3d 960 (Alaska 2004).

27 Id. at 961.

28 Id.

29 Id.

The superior court, whose order we approved and attached as an appendix to our opinion, cited Kissick [*13] for the notion that a pre-activity release for tortious conduct must be “clear, explicit, and comprehensible in each of its essential details.”³⁰ The superior court also noted the requirement that “such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the release.”³¹ With these principles in mind, the superior court pointed to language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.³² The superior court construed this ambiguity against the drafter and held that the release was not valid as a bar to the plaintiff’s negligence claims, a holding we affirmed.³³

30 Id. at 961-62 (quoting Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991)) (internal quotation marks omitted).

31 Id. at 962 (quoting Kissick, 816 P.2d at 191) (internal quotation marks omitted).

32 Id. at 963.

33 Id.

In this case, the superior court concluded that Kissick, Moore, and Kerr, considered together, meant that [HN6] “an effective liability release requires six characteristics.” We agree with the superior court’s formulation of the list:

(1) the risk being waived must [*14] be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.

The superior court found that each of these characteristics was satisfied in this case, and again we agree.³⁴

34 Donahue does not challenge the release on public policy grounds, so the fourth characteristic of a valid release is satisfied here. Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities. Kissick, 816 P.2d at 191 (“A promise not to sue for future damage caused by simple negligence may be valid.” (internal citations [*15] and quotation marks omitted)). The New Jersey Supreme Court, in a case involving claims against a health club, held that liability releases in gym cases do not violate public policy in part because gyms remain liable for their gross negligence or recklessness — levels of culpability not alleged in this case. Stelluti v. Casapenn Enters., 203 N.J. 286, 1 A.3d 678, 681 (N.J. 2010); see also City of Santa Barbara v. Super. Ct., 41 Cal. 4th 747, 62 Cal. Rptr. 3d 527, 161 P.3d 1095, 1102-03 (Cal. 2007) (surveying jurisdictions and concluding that “[m]ost, but not all” hold that releases of ordinary negligence in recreational activities do not violate public policy but “the vast majority of decisions state or hold that such agreements generally are void” if they attempt to release “aggravated misconduct” such as gross negligence).

1. The risks being waived (falling and instructor negligence) are specifically and clearly set forth.

[HN7] A conspicuous and unequivocal statement of the risk waived is the keystone of a valid release.³⁵ Here, the release clearly and repeatedly disclosed the risk of the specific injury at issue: injury from falling while climbing. The following are excerpts from the Rock Gym’s release:

I specifically acknowledge that the inherent risks associated with rock climbing . . . include[], but [are] not limited to: falling off of the climbing wall, . . . impacting [*16] the ground . . . , general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant’s limits, . . . my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue . . . .

To the extent that the risk at issue is the risk of hitting the ground after falling (or dropping in what is essentially an intentional fall), the first characteristic of a valid release is satisfied by this language.

35 Kerr, 91 P.3d at 961; Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Kissick, 816 P.2d at 191.

Rather than focusing on her injury, however, Donahue focuses on its alleged cause, which she argues was the negligent training and supervision of Rock Gym instructors and the consequently negligent instructions she was given. She claims that the release did not specifically and clearly set forth this risk, and that she was therefore unaware that she was waiving the right to sue for instructor negligence.

But the release did cover this risk. The first paragraph expressly incorporates “employees” into the definition of the entity being released. The release further warns that Rock Gym “instructors, [*17] employees, volunteers, agents or others . . . are not infallible” and that “[t]hey may give inadequate warnings or instructions.” In its on-site interactions with the public, the Rock Gym necessarily acts through its instructors and other employees; Donahue knew she would be taking a class and that classes require instructors. It would not be reasonable to conclude that the Rock Gym sought a release only of those claims against it that did not involve the acts or omissions of any of its employees, and we cannot construe the release in that way.³⁶ We agree with the superior court’s conclusion that “the Release clearly expresses that it is a release of liability for the negligence of the releasor-participant, other participants, climbers, spotters or visitors, as well as [the Rock Gym’s] negligence, including [Rock Gym] employees.”

36 See Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 4 Cal. Rptr. 3d 103, 75 P.3d 30, 40 (Cal. 2003) (holding that “the risks associated with learning a sport may themselves be inherent risks of the sport. . . . [A]nd . . . liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities” (internal citations and quotation marks omitted)).

Donahue also argues that [*18] she could not understand the risks involved due to the release’s appearance and presentation. However, even viewing the facts in the light most favorable to her, the record does not support her argument. Although Donahue did not carefully read the release before signing it,³⁷ she was aware she was signing a liability release. She has signed a number of such documents in the past and was familiar with their general purpose. When asked to read the release at her deposition, she testified that she understood the pertinent risks it described. There is no reason to believe that she would have found it less comprehensible had she read it at the time she signed it.

37 [HN8] Failure to read a contract in detail before signing it is no defense to its enforceability. Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991).

2. The waiver of negligence is specifically set forth using the word “negligence.”

Kissick and Kerr both emphasize that a valid release from liability for negligence claims requires use of the word “negligence.”³⁸ This requirement is met here.

38 Kerr, 91 P.3d at 961; Kissick, 816 P.2d at 191.

The Rock Gym’s release first lists negligence among the inherent risks of climbing (“the negligence of other climbers or spotters or visitors or participants” and “my own negligence”). It then provides: [*19] “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the Rock Gym].” (Emphasis added.) The phrase “any and all claims” is thus expressly defined to include claims for negligence.

Cases from other jurisdictions support the conclusion that the language in the Rock Gym’s release covers all of Donahue’s negligence claims. In Rosencrans v. Dover Images, Ltd., the plaintiff was injured on a motocross track after falling from his bike and being struck by two other riders.³⁹ A California Court of Appeal concluded that the signed waiver releasing the track from liability for “any losses or damages . . . whether caused by the negligence of [the Releasees] or otherwise” precluded the plaintiff’s claim “for ordinary negligence as well as negligent hiring and supervision” of employees at the racetrack (though it did not release the track from liability for gross negligence — a claim not made here).⁴⁰

39 192 Cal. App. 4th 1072, 122 Cal. Rptr. 3d 22, 27 (Cal. App. 2011).

40 Id. at 30. See also Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App. 2002) (“Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an [*20] employer’s direct negligence rather than on vicarious liability.” (citations omitted)).

In short, the requirement that a waiver of negligence be specifically set out using the word “negligence” is satisfied by the Rock Gym’s release.

3. The important factors are brought home to the releasor in clear, emphasized language with simple words and capital letters.

Donahue argues that although “negligence” is expressly mentioned and disclaimed in the release, its placement at the end of long sentences written in small font rendered its presence meaningless to her. Quoting a California case, she argues that when the risk of negligence is shifted, a layperson “should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.”⁴¹ Donahue also cites New Hampshire and Washington cases in which the structure and organization of releases obscured the language that purported to shield the defendants from claims.⁴² These cases considered factors such as “whether the waiver is set apart or hidden within other provisions, whether the heading is clear, [and] whether the waiver is set off in capital letters or in bold type.”⁴³ In one Washington case, a release [*21] was invalidated because the releasing language was in the middle of a paragraph.⁴⁴

41 Conservatorship of the Estate of Link v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, 515 (Cal. App. 1984).

42 See Wright v. Loon Mtn. Recreation Corp., 140 N.H. 166, 663 A.2d 1340, 1342 (N.H. 1995); Johnson v. UBAR, LLC, 150 Wn. App. 533, 210 P.3d 1021, 1023 (Wash. App. 2009).

43 Johnson, 210 P.3d at 1023 (citing Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (Wash. 1971)).

44 Baker, 484 P.2d at 407.

Fundamentally, Donahue argues that the Rock Gym’s release was so ambiguous and laden with legalese that she lacked any real ability to understand that she was agreeing to release the Rock Gym from the negligence of its instructors. She complains of the release’s “lengthy, small-printed, and convoluted” language which required a “magnifying glass and lexicon” to decipher. She points out that the clause purporting to release the Rock Gym from liability is not obvious or emphasized through bold print or capital letters. She testified at her deposition that she believed the waiver shielded the gym only “from frivolous lawsuits, from people blaming them for something that’s not their fault.”

It is true that the release’s text is small and the releasing clause is in the middle of the document toward the bottom of the first page. But the clauses addressing negligence do not appear to be “calculated to conceal,” as Donahue argues. Though not highlighted, they are in a logical place where they cannot be missed by someone who reads the release. The clause releasing the Rock Gym from liability is [*22] a single sentence set out as its own numbered paragraph, and it is not confusing or needlessly wordy.⁴⁵ The inherent risks of climbing are enumerated in great detail but using ordinary descriptive language that is easy to understand.⁴⁶ Several sentences are devoted to the role of the gym’s “instructors, employees, volunteers, agents or others,” stating that they “have difficult jobs to perform,” that they “seek safety, but they are not infallible,” and that they may “be ignorant of mine or another participant’s fitness or abilities” and “may give inadequate warnings or instructions.”

45 Paragraph 3 of the release reads: “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym’s] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].”

46 Paragraph 1 of the release lists the inherent risks of climbing as including “but . . . not limited to”:

falling off of the climbing wall, being fallen on or impacted by other participants, poor or [*23] improper belaying, the possibility that I will be jolted or jarred or bounced or thrown to and fro or shaken about while climbing or belaying, entanglement in ropes, impacting the ground and/or climbing wall, loose or dropped or damaged ropes or holds, equipment failure, improperly maintained equipment which I may or may not be renting from [the Rock Gym], displaced pads or safety equipment, belay or anchor or harness failure, general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant[‘s] limits, the negligence of other climbers or spotters or visitors or participants who may be present, participants giving or following inappropriate “Beta” or climbing advice or move sequences, mine or others’ failure to follow the rules of the [Rock Gym], my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue — some or all of which may diminish my or the other participants’ ability to react or respond.

Because [HN9] releases should be read “as a whole” in order to decide whether they “clearly [*24] notify the prospective releasor or indemnitor of the effect of signing the agreement,”⁴⁷ we consider these provisions in the context of the entire document. Three other sections of emphasized text mitigate Donahue’s complaints about ambiguity and incomprehensibility. First, section one reads in part, “I AM ULTIMATELY RESPONSIBLE for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals or activities” (bold in original). This alone makes it clear to the reader that the Rock Gym, to the extent it is allowed to do so, intends to shift responsibility to the climber regardless of the actions of anyone else. Second, a final unnumbered paragraph, set out in bold letters, reads in part: “By signing this document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.” And finally, directly above the lines where Donahue entered her signature, her printed name, her contact [*25] information, and the date, the release reads, in bold and capital letters, “I HAVE READ AND UNDERSTOOD [THE RELEASE], AND I AGREE TO BE BOUND BY ITS TERMS.” If Donahue had read the release and found herself genuinely confused about any of its terms, she was prominently notified that she should inquire about it before signing.

47 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991).

The New Hampshire case on which Donahue relies, Wright v. Loon Mountain Recreation Corp., examined the release in question to determine whether “a reasonable person in the position of the plaintiff would have understood that the agreement clearly and specifically indicated the intent to release the defendant from liability for its own negligence.”⁴⁸ Applying that test here, we conclude that a reasonable person in Donahue’s position could not have overlooked or misunderstood the release’s intent to disclaim liability. Our case law’s third characteristic of a valid release is therefore satisfied.

48 140 N.H. 166, 663 A.2d 1340, 1343-44 (N.H. 1995); see also Johnson, 210 P.3d at 1021 (holding reasonable persons could disagree about the conspicuousness of the release provision in the waiver, and remanding for trial).

4. Regardless of whether falling and instructor negligence are inherent risks of rock climbing, the release specifically disclaims [*26] liability for them.

The fifth characteristic set forth by the superior court ⁴⁹ is that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.”⁵⁰ This requirement stems from the release’s ill-defined scope in Moore; the injury that occurred — arguably caused by an unreasonably dangerous ATV training course — was not obviously included in the inherent risks of riding ATVs, which the signed release did intend to cover.⁵¹ Here, in contrast, the injury and its alleged causes are all expressly covered by the release, as explained above. Negligence claims are specifically contemplated, as are “falls,” “impact” with the ground, and “inadequate warnings or instructions” from Rock Gym instructors. Regardless of whether these are inherent risks of climbing, they are specifically covered by the release. This characteristic of a valid release is therefore satisfied.

49 As noted above, the fourth characteristic of a valid release — that it not violate public policy — is not at issue on this appeal. See supra note 34.

50 See Moore v. Hartley Motors, Inc., 36 P.3d 628, 633-34 (Alaska 2001).

51 Id.

5. The release does not represent or imply standards of safety or maintenance that [*27] conflict with an intent to release negligence claims.

The sixth characteristic of a valid release is that it does not imply standards of safety or maintenance that conflict with an intent to waive claims for negligence.⁵² The Rock Gym argues that nothing in the release confuses its purpose, unlike the release at issue in Kerr, which at least implicitly promised that equipment would be kept “in good condition.”⁵³ We agree. In fact, far from providing assurances of safety, the release highlights the fallibility of the Rock Gym’s employees, equipment, and facilities, explicitly stating that the equipment may “fail,” “malfunction[,] or be poorly maintained” and that the staff is “not infallible,” may be ignorant of a climber’s “fitness or abilities,” and “may give inadequate warnings or instructions.”

52 See Ledgends, Inc. v. Kerr, 91 P.3d 960, 962-63 (Alaska 2004).

53 Id. at 963.

Donahue agrees that the release is not internally inconsistent, but she argues that the advertisements run by the Rock Gym had the same confounding impact on her understanding of it as the release’s language about equipment maintenance had in Kerr. She contends that she relied on the ads’ assurances that the gym was “a safe place” and the class “would be a safe way to learn to climb” when [*28] she enrolled in the climbing class. She argues that these assurances created ambiguity that, as in Kerr, requires that the release be interpreted in a less exculpatory way.

Although extrinsic evidence may be admissible as an aid to contract interpretation,⁵⁴ the release here clearly defines climbing as an inherently risky activity. And we have said that

[HN10] where one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is a conflict, the specific section will control over the general.⁵⁵

Were we to give the Rock Gym’s advertisements any weight in our analysis of the release, we would not find that their use of the word “safe” overrode the release’s very clear warnings about the specific risks of climbing.

54 Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (citing Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996)).

55 Id. (quoting Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)).

Because the advertisements cannot reasonably be considered as modifications to the release, and because the release does not otherwise contain implicit guarantees of safety or maintenance that could confuse its purpose, we find the final requirement of a valid release to be satisfied. The release thus satisfies all characteristics of a valid release [*29] identified by our case law, and we affirm the superior court’s grant of summary judgment to the Rock Gym on this issue.

B. The UTPA Does Not Apply To Personal Injury Claims.

[HN11] Under the UTPA, “[a] person who suffers an ascertainable loss of money or property as a result of another person’s act or practice declared unlawful by AS 45.50.471 may bring a civil action to recover for each unlawful act or practice three times the actual damages . . . .”⁵⁶ Donahue alleges that, by publishing ads that gave the impression the Rock Gym was safe, the Rock Gym engaged in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce” which are unlawful under the statute.⁵⁷ [HN12] We have not yet decided whether the statutory phrase “loss of money or property” includes personal injury claims. We now hold that it does not.

56 AS 45.50.531(a) (emphasis added).

57 AS 45.50.471(a).

[HN13] The UTPA was “designed to meet the increasing need in Alaska for the protection of consumers as well as honest businessmen from the depredations of those persons employing unfair or deceptive trade practices.”⁵⁸ The act protects the consumer from deceptive sales and advertising practices,⁵⁹ and it protects honest businesses from their unethical [*30] competitors.⁶⁰ Donahue concedes that we have limited the UTPA to “regulating practices relating to transactions involving consumer goods and services.”⁶¹ She contends, however, that because we have never restricted the types of damages available for conduct within the UTPA’s reach, damages for personal injury should be recoverable.

58 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1052 (Alaska 2004) (quoting House Judiciary Committee Report on HCSCS for S.B. 352, House Journal Supp. No. 10 at 1, 1970 House Journal 744) (court’s emphasis and internal quotation marks omitted).

59 See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1244-45 (Alaska 2007) (affirming superior court’s award of treble damages against a car dealer for its insistence on enforcing an invalid contract); Pierce v. Catalina Yachts, Inc., 2 P.3d 618, 624 (Alaska 2000) (holding unconscionable sailboat manufacturer’s warranty in favor of buyers).

60 See, e.g., Garrison v. Dixon, 19 P.3d 1229, 1230-31, 1236 (Alaska 2001) (holding suit to be frivolous where real estate buyer’s agents sued competitors, alleging false and misleading advertising); Odom v. Fairbanks Mem’l Hosp., 999 P.2d 123, 127, 131-32 (Alaska 2000) (holding viable physician’s claims against hospital for retaliatory and anticompetitive behavior).

61 See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1062 (Alaska 2011) (holding the UTPA does not apply to residential leases) (citing Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999) (holding the UTPA does not apply to the sale of standing timber because it is real property rather than a consumer good)).

The superior court observed that there is nothing [*31] in the UTPA’s legislative history to support Donahue’s contention that the Alaska Legislature intended the act “to expand liability for personal injury or wrongful death or to supplant negligence as the basis for such liability.” The superior court identified “significant incongruities between the elements of common law personal injury claims and the UTPA, which suggest that the two claims cannot be reconciled.” The court explained:

For most of the past twenty years the Alaska Legislature has enacted and amended, in various forms, multiple iterations of tort reform aimed at reducing, not expanding, the scope of civil liability for personal injury and wrongful death. Expanding UTPA liability to personal injury and wrongful death would contradict many of the tort reform provisions enacted by the legislature in AS 09.17.010-080. For example, AS 09.17.020 allows punitive damages only if the plaintiff proves defendant’s conduct was outrageous, including acts done with malice or bad motives, or with reckless indifference to the interest of another person. The UTPA, on the other hand, does not require such a culpable mental state and almost as a matter of course allows a person to receive trebled actual damages. [*32] AS 09.17.060 limits a claimant’s recovery by the amount attributable to the claimant’s contributory fault; the UTPA, in contrast, does not provide a contributory fault defense. Moreover, AS 09.17.080 apportions damages between multiple tortfeasors whereas the UTPA does not permit apportionment of damages. A UTPA cause of action for personal injury or wrongful death would sidestep all of these civil damages protections.

We agree with the superior court that [HN14] the private cause of action available under the UTPA conflicts in too many ways with the traditional claim for personal injury or wrongful death for us to assume, without clear legislative direction, that the legislature intended the act to provide an alternative vehicle for such suits. The language of AS 45.50.531(a) — “ascertainable loss of money or property” — does not provide that clear direction. The legislature is well aware of how to identify causes of action involving personal injury and wrongful death, does so in other contexts,⁶² and declined to do so in this statute.

62 See, e.g., AS 04.21.020(e) (for purposes of statute governing civil liability of persons providing alcoholic beverages, ” ‘civil damages’ includes damages for personal injury, death, or injury to property of a person”); [*33] AS 05.45.200(4) (in statutes governing liability of ski resorts, “‘injury’ means property damage, personal injury, or death”); AS 09.10.070(a) (providing general statute of limitations for “personal injury or death”); AS 09.17.010 (limiting noneconomic damages recoverable “for personal injury or wrongful death”); AS 46.03.825(b)(1) (providing that limitations on oil spill damages do not apply to “an action for personal injury or death”).

Other states have similar laws, and their courts’ interpretations are helpful. Section 531(a) has a counterpart in Oregon’s UTPA, which likewise allows private actions by those who suffer a “loss of money or property.”⁶³ The Oregon Court of Appeals, considering an action for personal injuries occurring after a mechanic allegedly misrepresented the state of a car’s brakes, held that the UTPA was not a vehicle for the pursuit of personal injury claims.⁶⁴ It held that the Act plainly had a restitutionary purpose — “i.e., restitution for economic loss suffered by a consumer as the result of a deceptive trade practice.”⁶⁵ It noted the lack of any legislative history “to the effect that by the adoption of that provision the legislature intended to confer upon private individuals a new cause of action for personal injuries, including [*34] punitive damages and attorney fees,” or of “any decisions to that effect by the courts of any of the many other states which have adopted similar statutes.”⁶⁶ It emphasized the availability of common law remedies, which provided a range of possible causes of action for personal injury — negligence, breach of warranty, and strict products liability — and noted that these remedies provide for a more expansive range of damages, such as pain and suffering, not available under the UTPA.⁶⁷

63 ORS 646.638(1); ORS 646.608.

64 Gross-Haentjens v. Leckenby, 38 Ore. App. 313, 589 P.2d 1209, 1210-11 (Or. App. 1979).

65 Id. at 1210; see also Fowler v. Cooley, 239 Ore. App. 338, 245 P.3d 155, 161 (Or. App. 2010).

66 Gross-Haentjens, 589 P.2d at 1210-11.

67 Id. at 1211. Other courts have reached similar conclusions. See Beerman v. Toro Mfg. Corp., 1 Haw. App. 111, 615 P.2d 749, 754 (Haw. App. 1980) (“[T]hough individual actions based on damage to a consumer’s property may be within the purview of [the Hawaii consumer protection act], the scope of the statutes does not extend to personal injury actions.”); Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 73 (Tenn. App. 1990) (“We must hold that the General Assembly intended for the Consumer Protection Act to be used by a person claiming damages for an ascertainable loss of money or property due to an unfair or deceptive act or practice and not in a wrongful death action.”); Stevens v. Hyde Athletic Indus., Inc., 54 Wn. App. 366, 773 P.2d 871, 873 (Wash. App. 1989) (“We hold actions for personal injury do not fall within the coverage of the [Washington consumer protection act].”).

We agree with the reasoning of the Oregon court and conclude that Alaska’s [*35] UTPA does not provide the basis for a claim for personal injury.

C. The Superior Court Did Not Clearly Err In Finding That The Rock Gym Waived Any Claim For Rule 68 Attorney’s Fees.

The superior court granted the Rock Gym, as the prevailing party, 20 percent of its reasonable, actual attorney’s fees under Civil Rule 82(b)(2). [HN15] Twenty percent of “actual attorney’s fees which were necessarily incurred” is the presumptively reasonable award for a party who prevails in a case resolved short of trial but who does not recover a money judgment.⁶⁸

68 See Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) (“Awards made pursuant to the schedule of Civil Rule 82(b) are presumptively correct.”).

The Rock Gym contends that it should have been awarded fees under Civil Rule 68 instead. [HN16] Rule 68 provides that (a) where an adverse party makes an offer to allow judgment entered against it in complete satisfaction of the claim, and (b) the judgment finally entered is at least five percent less favorable to the offeree than the offer, the offeree shall pay a percentage of the reasonable actual attorney’s fees incurred by the offeror from the date of the offer, the percentage depending on how close the parties are to trial when the offer is made. The Rock Gym made a Rule 68 offer of judgment on February 7, 2012, over two months before [*36] the April trial date. Donahue rejected the offer. Under these facts, once judgment was granted in the Rock Gym’s favor, the conditions for an award of 30 percent of “the offeror’s reasonable actual attorney’s fees” under the Rule 68 schedule were satisfied.⁶⁹

69 Alaska R. Civ. P. 68(b)(3). We note that the award of fees under Rule 68 was likely to be only nominally greater than that under Rule 82. Rule 68 affects only fees incurred after the date the offer is made, here February 7, 2012. The parties had already completed their summary judgment briefing by that time, and summary judgment was entered a month later.

The question presented here, however, is whether the Rock Gym waived any request for Rule 68 fees. The Rock Gym initially argued to the superior court that it should be awarded full fees because of express language in the release, which reads:

Should [the Rock Gym] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.

While arguing this point, the Rock Gym noted in a footnote that it was eligible for full fees under AS 09.30.065 (the statute authorizing the Rule 68 procedure). But it made that observation only in support of its argument [*37] for full fees under the release. Its motion did not otherwise mention Rule 68; rather, as an alternative to fees under the indemnity clause, the Rock Gym asked the court to use its discretion to award up to 80 percent of its fees under Rule 82 — far more than the scheduled award of 20 percent — in light of Donahue’s “vexatious” behavior, particularly having complicated the case with claims under the UTPA.

The superior court denied the Rock Gym’s request for full fees based on the release and ordered it to submit an affidavit detailing its counsel’s billings. The order also stated, “Plaintiff should address the effect, if any, of defendant’s Rule 68 offer on the amount of fees that may be awarded.” The Rock Gym submitted the required fee affidavit and also moved for reconsideration, again arguing that full fees should be awarded under the release’s indemnity clause; again relying on Rule 82 as an alternative; and failing to mention Rule 68 at all. Donahue submitted no response.

The superior court again rejected the Rock Gym’s argument based on the release’s indemnity clause and ordered the Rock Gym to submit a more detailed fee affidavit. The Rock Gym filed another affidavit which did not address the offer of judgment. [*38]

In its third order, the superior court again rejected the Rock Gym’s request for full attorney’s fees and awarded 20 percent of its fees under Rule 82(b)(2). The Rock Gym again moved for reconsideration. This time the Rock Gym argued that it was entitled to 30 percent of its fees under Rule 68, relying on the footnote in its first motion to contend that the argument was not waived.⁷⁰

70 As noted above, the increased percentage of attorney’s fees would only apply to those fees incurred after the date the offer of judgment was made; the amount at issue thus appears to be minimal.

The superior court then issued its fourth order on fees. It reaffirmed its Rule 82 award, finding that the Rock Gym had not adequately or timely made a claim under Rule 68. The court observed that the Rock Gym’s failure to make the claim earlier was likely a “tactical decision, initially, to pursue full attorney fees based on indemnity rather than present all of its alternative fee award theories at once.”

[HN17] The superior court’s finding that the Rock Gym waived a request for fees under Rule 68 is reviewed for clear error.⁷¹ We see no clear error here. The Rock Gym’s reference to its offer of judgment in its motion for attorney’s fees was made only to support its [*39] request for full fees under the indemnity provision of the release; the only alternative it expressly requested was an award of enhanced fees under Rule 82. As the superior court observed, it was not the court’s duty in this context “to solicit additional arguments for a moving party.”⁷² Nor was the superior court obliged to consider the Rule 68 argument when it was raised for the first time in motions for reconsideration.⁷³ And under the circumstances of this case, including the modest difference between fee awards under Rule 82 and Rule 68 and an apparent deficiency in the Rule 68 offer itself,⁷⁴ we cannot see plain error.⁷⁵

71 See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).

72 See, e.g., Forshee v. Forshee, 145 P.3d 492, 498 (Alaska 2006).

73 See Haines v. Cox, 182 P.3d 1140, 1144 (Alaska 2008) (holding that the plaintiff’s submission of evidence only when she moved for reconsideration forecloses her claim that the court abused its discretion by failing to rely on that evidence); Koller v. Reft, 71 P.3d 800, 805 n.10 (Alaska 2003) (noting that superior court is not obliged to consider documents presented for the first time with a motion for reconsideration).

74 The offer did not encompass the Rock Gym’s counterclaim against Donahue for contractual indemnity. See Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1089 (Alaska 2008) (“Both Rule 68 and AS 09.30.065 . . . implicitly require that an offer of judgment include all claims between the parties and be capable of completely resolving the case by way of a final [*40] judgment if accepted.”).

75 [HN18] The plain error doctrine requires a party to prove that the error waived below was “so prejudicial that failure to correct it will perpetuate a manifest injustice.” Forshee, 145 P.3d at 500 n.36 (quoting Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App. 2000)) (internal quotation marks omitted).

V. CONCLUSION

The judgment of the superior court is AFFIRMED.

G-YQ06K3L262

http://www.recreation-law.com

Making statements contrary to release can be barred by a release, maybe, but may be gross, wilful and wanton negligence which the release does not stop.

Posted: August 11, 2014 | Author: Recreation Law | Filed under: Michigan, Racing, Release (pre-injury contract not to sue) | Tags: #race, Defendant, Gross negligence, Michigan, Negligence, Obstacle Course, Plaintiff, Red Frog Events, Release, Spartan Race, Tough Mudder, Warrior Dash, Wilful and Wanton Misconduct | 3 Comments

Plaintiff signed a release to participate in the Warrior Dash race. An employee of the race was encouraging participants to dive into a mud pit. Plaintiff dove into the mud pit rendering himself a quadriplegic.

State: Federal District Court for the Eastern District of Michigan

Plaintiff: James Sa

Defendant: Red Frog Events, LLC, an Illinois corporation

Plaintiff Claims: negligence, gross negligence, and willful and wanton misconduct

Defendant Defenses: release and failure to state a claim upon which relief may be granted

Holding: for the defendant on the negligence claim because of the release, for the plaintiff on the gross negligence, and willful and wanton misconduct claims

Year: 2013

This case is possible still ongoing. How the final decision will evolve is unknown. However, the federal district court did arrive at some great analysis of the case.

This case comes out of the new fad, extreme obstacle racing. In these races participants run through live electrical wires, jump through fire and here, crawl through a mud pit. These races are known by various names, Warrior Dash, Spartan Race and Tough Mudder are the most well-known.

In this case, the plaintiff signed up for a Warrior Dash 5K race and signed a release. The release specifically warned against diving into the mud pit. The mud pit was right in front of the bleachers and the last obstacle on the course.

At the mud, pit was an employee of the defendant with a microphone, and loudspeaker “acting as an emcee” for the event.

Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged.

So many people were diving into the mud pit that people were blogging about it and posting photos online.

The plaintiff followed the emcee’s “encouragement” and dove into the mud pit resulting in paralysis from the chest down. The plaintiff sued, and the defendant filed a motion to dismiss.

A motion to dismiss is usually filed by the defendant prior to filing an answer. The basis is the pleadings are so lacking in any facts or there is no law to support a claim. In reviewing the motion, the court must accept the allegations and facts in the complaint as true. It is unclear in reading this case when the motion to dismiss was filed. This opinion is the court’s response to the motion to dismiss.

Summary of the case

The court first looked at whether the release acted to stop the negligence claims of the plaintiff. Releases are valid in Michigan. Under Michigan law a release’s validity:

…turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.

Whether the release is valid is a question of law. The plaintiff did not argue that he signed the release. The court pointed out possible ways the plaintiff could void the release which the plaintiff did not use.

He does not argue, for example, that (1) he “was “dazed, in shock, or under the influence” when he signed the Waiver; (2) “the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.

Ninety-nine percent of the time plaintiff’s attack the validity of the release based on their competence or understanding of the release. In not doing so, I would guess the plaintiff shocked the judge so he put in this language. The plaintiff’s first argued the release was invalid because:

…that “Red Frog fails to indemnify itself from its own negligent acts” because it “did not use the term ‘negligent’ and/or ‘negligence’ anywhere within the four corners of it’s (sic) Waiver & Release Agreement.

(This argument has been used endlessly and is so easily avoided. Use the word negligence in your release.)

Here the language used by the defendant met the requirements to put the plaintiff on notice that he was giving up his rights to sue for negligence. “…although an indemnity provision does not expressly state that the indemnitee will be shielded from its own negligence, such language is not mandatory to provide such indemnification.”

The release language under Michigan’s law is called the indemnity provision or clause. That translation of the phrase is different from most other states. Here, it is like saying, by signing the release the plaintiff agrees to indemnify himself for his injuries.

…the Waiver, titled as a “Waiver and Release of Claims, Assumption of Risk and Warning of Risk,” informed Plaintiff that he was relinquishing his right to sue Defendant for claims resulting from his participation in the Warrior Dash.

The next argument of the plaintiff’s is brilliant and if successful would bring down hundreds of releases across the United States. Releases written by attorneys or non-attorneys in an attempt to soften the blow will put statements in the release about how safe the activity is, how well run the operation is or that accidents rarely happen.

The plaintiff argued that other statements in the release gave the plaintiff the impression that the defendant would not be negligent in the operation of the race.

For support, Plaintiff points to the disclaimer portion of the Waiver stating that Red Frog: (1) “is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard;” and (2) “continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety.

The court did not accept this argument because the paragraph this language was in went on stating there was a risk of injury entering the race.

The final argument by the plaintiff was also unique and if accepted would invalidate dozens of releases. The plaintiff argued that the statements by the employee of the defendant, the emcee, invalidated the release. In legal language, the statements of the emcee “constituted a waiver and modification of the release of liability.”

In sum, Plaintiff argues, “[t]his conduct led James [the plaintiff] to believe a waiver had occurred and it was okay and safe to dive into the mud pit. Red Frog failed to correct the actions of participants who dove into the mud pit or further instruct through the speaker system that this type of behavior was not permitted.”

Under Michigan’s law, any waiver of a written contract must be in writing unless the waiver language is consistent with the strict compliance language of the contract. Meaning the waiver language must be of the same type and of the same legal tone as the original contract.

Even assuming that Michigan law permits parties to orally modify a waiver and release, the most Plaintiff has alleged is that Defendant’s actions modified the provision prohibiting Plaintiff from diving into the mud pit head first. Defendant’s actions cannot be interpreted, as pled by Plaintiff, as an agreement to modify the Waiver such that Plaintiff could hold Defendant liable for negligence due to injuries arising out of his participation in the Warrior Dash. Therefore, the Waiver bars Plaintiff’s negligence claim.

The court upheld the validity of the release and held the release stopped the simple negligence claims of the plaintiff.

On the second and third claims, gross negligence, and willful and wanton misconduct, a release under Michigan’s law does not work. The issue then becomes are there enough allegations to the facts in the complaint and documents filed with the court to this point to support the plaintiff’s claim of gross negligence, and willful and wanton misconduct.

Under Michigan’s law:

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” M.C.L. § 600.2945(d); Xu, 257 Mich. App. at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.”

Under Michigan’s law, a release does not stop claims for gross negligence. So the gross negligence claim survives the defense of release. The issue then is whether the plaintiff as plead enough facts that a jury may find give rise to gross negligence.

…it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless to demonstrate a substantial lack of concern for whether an injury would result.

The court, based upon the statements of the emcee at the mud pit encouraging people to dive into the pit were enough to possibly support a claim for gross negligence.

Under Michigan’s law, Wilful and Want misconduct is different and distinct from gross negligence.

“[W]ilful and wanton misconduct . . . [is] qualitatively different from and more blameworthy than ordinary, or even gross, negligence.”). The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to an-other, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.”

…willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.

Here again, the court found the actions of the emcee in encouraging participants to dive into the mud pit might be found to be an intent to harm or an indifference.

Here, a reasonable jury might conclude that the act of encouraging participants to jump head-first into the mud pit despite knowing the risks, to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such “indifferen[ce] to the likelihood that catastrophe would come to a [race participant.]”

Consequently, the court granted the motion to dismiss on the negligence claims and denied the motion to dismiss on the claims of gross negligence and wilful and wanton misconduct.

Again, this case probably is not over yet.

So Now What?

Don’t give an injured participant the opportunity to sue you. Don’t dance with the possibility that your language you use instead of the word negligence will meet the requirements of the law.

JUST USE THE WORD NEGLIGENCE IN YOUR RELEASE!

Second, don’t allow anyone who is an employee or may appear to participants to be an employee to encourage people to take actions that might injure them or is contrary to the rules of your activity.

It seems to be common sense; however, in the heat of the activity or an unfounded belief the release is ironclad, people get excited and might encourage a participant to take risks they are not expected or ready for.

What do you think? Leave a comment.

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Give Kids The World, Inc., v. Sanislo, 2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

Mobile Site: http://m.recreation-law.com

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

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Simple Florida camp case with final sentences that provide insight into how courts look at what influenced their decision.

Posted: July 28, 2014 | Author: Recreation Law | Filed under: Florida, Release (pre-injury contract not to sue), Summer Camp | Tags: Cause of action, Florida, Give Kids The World, Give Kids the World Village, GKTW, Inc., lift, Make a Wish, Negligence, Release, Summary judgment, wheelchair | Leave a comment

This decision was recently upheld by the Florida Supreme Court in Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

A camp for ill children can be sued by injured parents just as any summer camp. That was not the issue here. The language of the release was the only issue.

State: Florida Court of Appeal, Fifth District

Plaintiff: Stacy Sanislo and Eric Sanislo, in the trial court, defendants on appeal

Defendant: Give Kids The World, Inc., plaintiff on appeal, defendant at the trial court level

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendant

Year: 2012

This case is fairly mundane from the standpoint of release law. However, the concurring opinion at the end makes a great point that has relevance.

The defendant GKTW (I’ll refer to the parties as they were at the trial court) grants wishes to seriously ill children. The plaintiffs’ applied and were granted the opportunity for their ill child to attend the camp.

While at the camp, a lift on the back of a horse-drawn wagon broke because the weight limit of the lift had been exceeded. The wife, Stacy was injured. She and her husband sued the camp.

The trial court denied the defendants motion for summary judgment on the release signed by the parties. The motion was denied because the trial court found the language in the release did not rise to the level necessary to inform the plaintiff’s they were giving up legal rights. The matter went to, and the plaintiff prevailed in their claims.

The defendant appealed.

Summary of the case

The issue was the same as in many prior cases. First, the plaintiff argued the release language did not meet Florida’s law. The court’s response was quite simple.

Exculpatory clauses are disfavored under the law, but unambiguous exculpatory contracts are enforceable, unless they contravene public policy. The wording of the exculpatory clause must be clear and understandable so that an ordinary and knowledgeable person will know what he or she is contracting away.

The next issue was the release did not contain the word negligence. “This Court has expressly “rejected the need for express language referring to release of the defendant for ‘negligence’ or ‘negligent acts’ in order to render a release effective to bar a negligence action.”

Language such as “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to stop a claim. A release also must not list each way a party can be injured to be effective.

The court then looked at the unequal bargaining position argument: “this Court must consider the parties’ relative bargaining power in determining the enforceability of a release.”

Enforcement of an exculpatory clause has been denied where the relative bargaining power of the contracting parties is unequal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position. However, Florida courts have held that the bargaining power of the parties will not be considered unequal in settings outside of the public utility or public function context.

However athletic contests and recreational activities are public utility nature or a public function.

The final argument was the release was offered as a “take it or leave it” basis. To have their daughters wish fulfilled the plaintiff’s had to sign a release. However parental desire to fulfill a child’s wish is not unequal bargaining power.

The court then made this final statement. They [the plaintiff’s] were provided a copy of the release at the time they applied to the Make-A-Wish Foundation and made a decision to waive certain rights. GKTW is entitled to enforcement of that release.

Of interest was the concurring opinion. A concurring opinion is one where a judge on the appeal panel agrees with the outcome, but his agreement is based on a different legal issue or the judge wants to make a point. It does not change the opinion, and it does not add additional weight to the opinion. However, it is usually quite educational and provides an opportunity to understand the court.

In this case, the concurring opinion looked at the issue of the language of the release.

…a release should be readily understandable so that an ordinary and knowledgeable person would know what is being contracted away. I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care. Conversely, a clause which provides a waiver of liability for one’s own negligence is easily understood.

The great statement was the last. “The other district courts of appeal have recognized how simple it is to add such a clause in a release. I suggest we do the same.”

So Now What?

This is a simple summer camp case, except the injured party was the parent rather than the child. If you run a summer camp, you may want to make sure your release covers all family members, not just the campers. Parents picking up their children can be hurt as well as siblings who are investigating the outdoors while there.

However, the great take away points are the last sentences in the opinion and the concurring opinion.

1. Get the release to the parties in advance

2. Use the word negligence in your release.

What do you think? Leave a comment.

James H. “Jim” Moss

Outdoor Recreation Insurance, Risk Management, and Law

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law. To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

If you are interested in having me write your release, download the form and return it to me.

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Give Kids The World, Inc., v. Sanislo, 2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

Posted: July 19, 2014 | Author: Recreation Law | Filed under: Florida, Legal Case, Release (pre-injury contract not to sue), Summer Camp | Tags: Give Kids The World, Give Kids the World Village, GKTW, Inc., lift, Make a Wish, Negligence, Release, wheelchair | Leave a comment

To Read an Analysis of this decision see

Simple Florida camp case with final sentences that provide insight into how courts look at what influenced their decision.

Give Kids The World, Inc., v. Sanislo, 2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

This case was upheld by the Florida Supreme Court in Sanislo, et al., v. Give Kids The World, Inc., 157 So. 3d 256; 2015 Fla. LEXIS 214; 40 Fla. L. Weekly S 79

Give Kids The World, Inc., Appellant, v. Stacy Sanislo and Eric Sanislo, Appellees.

Case No. 5D11-748

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143

May 11, 2012, Opinion Filed

PRIOR HISTORY: [*1]

Appeal from the Circuit Court for Osceola County, Jeffrey Fleming, Judge.

COUNSEL: Wm. Jere Tolton, lll, of Ogden & Sullivan, P.A., Tampa, and Matthew J. Haftel of O’Connor & O’Connor, LLC, Orlando, for Appellant.

Michael J. Damaso, ll, of Wooten, Kimbrough and Normand, P.A., Orlando, and Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellees.

JUDGES: ORFINGER, C.J., and PALMER, J., concur. COHEN, J., concurs and concurs specially with opinion.

OPINION

PER CURIAM.

Give Kids the World, Inc. (“GKTW”), the defendant below, appeals a final judgment entered against it in a negligence action. GKTW argues that the lower court erred by denying its pretrial motion for summary judgment on its affirmative defense of release. We agree and reverse.

GKTW is a non-profit organization that provides free “storybook” vacations to seriously ill children and their families at its resort village, the Give Kids the World Village (“the Village”). Stacy and Eric Sanislo (“the Sanislos”) are the parents of a young girl with a serious illness. In November 2004, the Sanislos executed a liability release to GKTW in connection with a “wish request” that benefitted their daughter.¹ The release, in pertinent part, provided:

By [*2] my/our signature(s) set forth below, and in consideration of Give Kids the World, Inc. granting said wish, I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of the release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind.

. . . .

I/we further agree to hold harmless and to release Give Kids the World, Inc. from any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us, or damage to or theft of our personal belongings, jewelry or other personal property which may occur while staying at the Give Kids the World Village.

The wish request was approved and, upon their arrival at the Village from the state of Washington, the Sanislos executed another liability release [*3] with identical language.

1 Fulfillment of a child’s wish is accomplished in conjunction with the Make-AWish Foundation, a separate entity from GKTW.

During the course of her stay at the Village, Stacy Sanislo was injured when she, along with her husband, posed for a picture on a pneumatic wheelchair lift that was attached to the back of a horse-drawn wagon. The lift collapsed because the weight limit had been exceeded, injuring Ms. Sanislo. The Sanislos brought suit against GKTW, alleging that Ms. Sanislo’s injuries were caused by GKTW’s negligence. In its answer, GKTW asserted the affirmative defense of release. Subsequently, GKTW filed a motion for summary judgment, arguing that the signed liability releases precluded a finding of liability. The Sanislos filed a motion for partial summary judgment on the issue of release as well. The trial court denied GKTW’s motion, but granted that of the Sanislos.² Following a jury verdict, judgment was entered in the Sanislos’ favor.

2 The parties stipulated that if the trial court granted one of the motions for summary judgment, then the other should be denied.

On appeal, GKTW correctly asserts that it was entitled to summary judgment based on the [*4] release. [HN1] Exculpatory clauses are disfavored under the law, but unambiguous exculpatory contracts are enforceable unless they contravene public policy. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006)). The wording of the exculpatory clause must be clear and understandable so that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001). This Court has expressly “rejected the need for express language referring to release of the defendant for ‘negligence’ or ‘negligent acts’ in order to render a release effective to bar a negligence action.” Cain, 932 So. 2d at 578. In Cain, this Court noted that an exculpatory clause absolving a defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to encompass the plaintiff’s negligence action filed against a defendant track owner in connection with motocross bike riding. Id. at 579; see also Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So. 2d 436, 437 (Fla. 5th DCA 1990) (determining that “any and [*5] all claims, demands, damages, actions, causes of action, or suits in equity, of whatsoever kind or nature” encompassed negligent action). A release need not list each possible manner in which the releasor could be injured in order to be effective. Cf. DeBoer v. Fla. Offroaders Driver’s Ass’n, Inc., 622 So. 2d 1134, 1136 (Fla. 5th DCA 1993).

The instant release contains two separate provisions releasing GKTW from liability. One provision releases GKTW from “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us . . . which may occur while staying at the Give Kids the World Village.” This language is markedly similar to the language in the release signed by the plaintiff in Cain, which encompassed the release of a negligence action. 932 So. 2d at 577. A second provision releases GKTW from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish . . . .” This language is broad enough to encompass negligence claims arising from the injuries suffered by Ms. Sanislo due to the collapse of the wheelchair lift.

The Sanislos argue that the release is not [*6] clear and unambiguous because it applies to liability arising “in connection with the preparation, execution and fulfillment of said wish.” They suggest the nature and scope of the wish is not clear or defined and thus renders the release unenforceable. However, the wish, which was requested by the Sanislos, clearly encompassed events at the Village related to their stay and attendance at Orlando area theme parks. The Sanislos’ interpretation is not likely the interpretation that an “ordinary and knowledgeable person” would give to the clause. See Raveson, 793 So. 2d at 1173. The language used clearly and unambiguously releases GKTW from liability for the physical injuries Ms. Sanislo sustained during her stay at the Village, and was sufficiently clear to make the Sanislos aware of the breadth of the scope of the release and what rights they were contracting away. [HN2] The ability to predict each and every potential injury is unattainable and is not required to uphold an exculpatory provision within a release.

[HN3] In addition to assessing the clarity of the language used in releases, this Court must consider the parties’ relative bargaining power in determining the enforceability of a release. [*7] Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973). Enforcement of an exculpatory clause has been denied where the relative bargaining power of the contracting parties is unequal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position. Id. However, Florida courts have held that the bargaining power of the parties will not be considered unequal in settings outside of the public utility or public function context. For instance, in Banfield v. Louis, 589 So. 2d 441, 443-44 (Fla. 4th DCA 1991), the court upheld the enforcement of a release executed by a participant in a triathlon and the trial court’s ruling that a disparity in bargaining power was “not applicable to entry of athletic contests of this nature, where a party is not required to enter it and not entitled to participate unless they want to.” The Banfield court emphasized that the application of Ivey Plants was limited to circumstances in which a release was executed on behalf of a public utility or a company serving some public function. Id. at 444-45. Consistent with this analysis, Florida courts have refused to find an inequality of bargaining [*8] power in recreational settings. Id.; DeBoer, 622 So. 2d at 1136. Similarly, in Hardage Enterprises, this Court found that an exculpatory clause in an agreement entered into by the owner of a hotel complex and a construction manager of the complex was enforceable because its language was unambiguous and the parties were not in a position of unequal bargaining power. 570 So. 2d at 438. This Court explained that the case did not present “a situation where public policy mandates the protection of consumers who are offered a contract in a ‘take it or leave it’ form.” Id. at 439.

GKTW argues that the bargaining power of the parties cannot be viewed as unequal, because the Sanislos voluntarily participated in the GKTW program. The Sanislos, for their part, argue that the parties are of unequal bargaining power because they were offered a contract in a “take it or leave it” form, and GKTW gave them no choice but to sign the release in order to have their daughter’s wish fulfilled. Unfortunately for the Sanislos, however, the instant case is more akin to Banfield and DeBoer than it is to Ivey Plants. The Sanislos’ desire to fulfill their ill daughter’s wish is certainly understandable, but the [*9] parents’ desire to fulfill the wish and take advantage of the GKTW program does not equate to unequal bargaining power. The Sanislos were not consumers as contemplated in Hardage Enterprises. They were provided a copy of the release at the time they applied to the Make-A-Wish Foundation and made a decision to waive certain rights. GKTW is entitled to enforcement of that release.

REVERSED.

ORFINGER, C.J., and PALMER, J., concur.

COHEN, J., concurs and concurs specially with opinion.

CONCUR BY: COHEN

CONCUR

COHEN, J., concurring specially.

If I were writing on a clean slate, I would affirm the trial court’s denial of GKTW’s summary judgment. I am bound, however, to follow this Court’s prior decisions that do not require an express reference to negligence in a release in order to render the release effective to such actions. This District stands alone on this position. See Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3rd DCA 1980).

The better view is to require an explicit provision to that [*10] effect. Exculpatory clauses are “by public policy disfavored in the law because they relieve one party of the obligation to use due care, and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108, 110 (Fla. 5th DCA 2009). While those trained in the law might understand and appreciate that the general language releasing a party from any and all liability could encompass the injuries suffered by Ms. Sanislo, a release should be readily understandable so that an ordinary and knowledgeable person would know what is being contracted away. I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care. Conversely, a clause which provides a waiver of liability for one’s own negligence is easily understood. The other district courts of appeal have recognized how simple it is to add such a clause in a release. I suggest we do the same.

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Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.

Posted: July 14, 2014 | Author: Recreation Law | Filed under: Arkansas | Tags: Arkansas, assumption of the risk, bucking horse, Defendant, Duty of care, Hall, Keith Hall, Keith Hall Rodeo, Negligence, Plaintiff, Rodeo, Spectator, Sports | Leave a comment

Spectators are business invitees, which are owed a high degree of care and never sign a release. Any event, sport, race or contest, the greatest chance of a lawsuit winning comes from those watching.

Mahan v. Keith Hall, d/b/a Keith Hall Rodeo, 320 Ark. 473; 897 S.W.2d 571; 1995 Ark. LEXIS 296; 68 A.L.R.5th 813

State: Arkansas Supreme Court

Plaintiff: Melonie Mahan as Next and Best Friend of Shawn Mahan

Defendant: Keith Hall, d/b/a Keith Hall Rodeo

Plaintiff Claims: negligence

Defendant Defenses: no negligence

Holding: for the defendant

Year: 1995

The injured minor paid to attend a rodeo put on by the defendant at the local fairgrounds. After finding their seat, the minor and a friend went to get a drink. They then walked around looking at the event. A horse bucked it’s rider off, circled the inside of the arena then broke through the gate where the two youth were standing injuring them. The plaintiff also argued that their view of the horse coming at them was blocked by the rodeo announcer.

The mother of the injured youth sued on behalf of herself and her son. The fairground was sued and settled out of court. The rodeo was put on by the defendant Keith Hall Rodeo. The court directed a verdict for the defendant finding the plaintiff had not proven their case. No evidence was presented that the defendant Rodeo was negligent.

A directed verdict is a decision by the court that one party has completely failed to prove their case, and the other party must win. Directed verdicts can be granted at any time during a trial or after the jury has rendered its verdict. “A motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict.” Directed verdicts are rare.

Summary of the case

The injured youth was a business invitee which the defendant owed a “duty to use reasonable care to prevent injuries” to him. The plaintiff argued that the fact the horse got through the gate was proof the gate was not secure. However, proof of an injury is not proof of negligence.

The trial court agreed, finding that while Ms. Mahan had proven an accident and had shown where it had occurred, she had not shown any breach of duty on the part of Mr. Hall. It is from the trial court’s granting of Mr. Hall’s motion for a directed verdict that Shawn appeals.

The court defined negligence as:

…the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner.

However, the plaintiff was not able to present any testimony or proof that the gate was not maintained in a reasonably safe condition. “…the fact that a[n] injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.”

The Supreme Court upheld the directed verdict of the trial court.

So Now What?

Two important points can be found in this decision. The first is just because there is an injury does not mean there is a lawsuit. The defendant must have done something or not done something to create liability.

The second is the identification of a very large group of potential plaintiffs. If you host/put on/conduct events/contests/races or other activities were spectators are present, anything goes wrong injuring a spectator you might be liable. Spectators are owed a high degree of care, based on the state, and you are probably required to keep them safe. Spectators don’t sign releases and if they are viewing the activity in an area where you have allowed them to stand, then assumption of the risk is probably not available as a defense.

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Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

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

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Well written decision from Wyoming defines release law and how releases should be written.

Posted: July 7, 2014 | Author: Recreation Law | Filed under: Health Club, Release (pre-injury contract not to sue), Wyoming | Tags: Defendant, Gym, Health club, Lat-Pull-Down, Massengill, Negligence, Plaintiff, Rehabilitation, S.M.A.R.T., Sports medicine, Trial court, Wyoming, Wyoming Supreme Court | 2 Comments

This case is interesting because one of the attempts to remove the release from the decision was a claim the plaintiff was at the defendant gym working out because he was told to by a physician, and the gym was owned by a different physician.

Plaintiff: James Massengill and Kaylea Massengill

Defendant: S.M.A.R.T. Sports Medicine Clinic, P.C.

Plaintiff Claims: Negligence, loss of consortium

Defendant Defenses: Release

Holding: For the defendant

The plaintiff was injured when a pin in a lat-pull-down machine that secured the weights came out, and he fell backwards injuring his wrist. The plaintiff sued, and the defendant raised the defense of release.

The plaintiff was told by his physician to exercise more. One day while at a drugstore, he had met an owner of the defendant gym, a physician, who talked to him about the gym.

The plaintiff and his wife went to the gym. They were given a release and told to take it home and read it. Three days later the plaintiff’s came back, signed the release and began to use the facilities.

The plaintiff had not asked for instructions on the lat-pull-down machine and did not ask for any because he had used one previously. He had been using the particular machine for a month and had noticed that the pin did not appear to fit when he was injured.

The trial court ruled the release was valid and barred the claims of the plaintiffs, dismissing the case. The plaintiff’s appealed. This case is based in Wyoming, which only has trial courts and the Wyoming Supreme Court, in intermediate appellate courts.

Summary of the case

The court first looked at the language of the release, to determine if the language was clear and unequivocal.

Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T., and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T.

The court found the language was clear and unequivocal as well as broad and specially released the defendant from claims and actions for negligence.

The court then examined the release based on contract law. Releases are contracts and are interpreted using traditional contract principles. The entire document is examined as a whole.

The language of the Agreement and Release is clear in manifesting an intention to release S.M.A.R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.”

Wyoming has four factors to examine to determine if a release is valid.

(1) whether a duty to the public exists;

(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 the release in question was properly reviewed by the trial court, and the release met all four tests. The court then looked at the plaintiff’s claims the release violated public policy. Under Wyoming law, a duty to the public exists “if the nature of the business or service affects the public interest, and the service performed is considered an essential service.” A release that affecting a public interest giving rise to a duty to the public is one that:

“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.”

In Wyoming, this list of businesses would be “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities.”

A health club or gym is recreational in nature and do not meet the requirements and do not qualify as a business suitable for public regulation. A gym or health club is not essential.

The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential….

Then court then looked at the plaintiff’s claims that he was at the gym for medical reasons. However, the court could find no evidence that the plaintiff was at the gym engaging in rehabilitation.

The court then looked at the plaintiff’s claim that there was a disparity of bargaining power between the parties which should void the release. However, this argument also failed.

Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.

The plaintiff’s raised one final argument that claimed the Wyoming Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123:

…creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity.

The court called this a convoluted argument and did not agree with the argument.

The final argument was based on the wife’s claim for loss of consortium. The court held there were two different ways this claim also failed. The first was the wife signed a release at the same time as her husband; the plaintiff and the release stopped her suit. Also because her claim of loss of consortium is derivative, meaning only can exist if the original claim exists, then her claim fails also.

The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order.

The court upheld the trial courts dismissal of the claims.

So Now What?

This is a great decision to assist in writing a release in Wyoming. Of interest was the fact the court pointed out, the plaintiffs were given three days to review the release before signing.

The four requirements for a release are similar to most other states. How you deal with the issue of someone at your facility for health or rehabilitation reasons might present a problem.

What do you think? Leave a comment.

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New Minnesota statute attempted to eliminate releases and thankfully, might have made release law in MN better

Posted: July 2, 2014 | Author: Recreation Law | Filed under: Minnesota, Release (pre-injury contract not to sue) | Tags: Greater than Ordinary Negligence, Gross, Intentional Negligence, Minnesota, Minor, Negligence, parent, Release, Right to Sue, Wanton, Wilful | Leave a comment

Thankfully, law does not change anything and to some extent, helps to reinforce releases in Minnesota and releases for minors.

Several attempts were made this year to eliminate releases in Minnesota. The statute specifically includes recreational activities in its language. The result signed into law prevents releases from relieving liability for greater than ordinary negligence.

Even if the language is in the release the language is severable, which means it does not void the release, just the specific language.

However, the law does not change anything because greater than ordinary negligence, gross, will, wanton or intentional negligence, have never been covered by a release.

Here is the new statute.

JUDICIAL PROOF

CHAPTER 604. CIVIL LIABILITY

ACTIONS INVOLVING FAULT GENERALLY

Minn. Stat. § 604.055 (2014)

604.055 WAIVER OF LIABILITY FOR NEGLIGENT CONDUCT

Subdivision 1. Certain agreements are void and unenforceable. –An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence is against public policy and void and unenforceable.

The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from conduct that constitutes ordinary negligence or for risks that are inherent in a particular activity.

Subd. 2. Party or parties. –For the purposes of this section, “party” or “parties” includes a person, agent, servant, or employee of that party or parties, and includes a minor or another who is authorized to sign or accept the agreement on behalf of the minor.

Subd. 3. Other void and unenforceable agreements. –This section does not prevent a court from finding that an agreement is void and unenforceable as against public policy on other grounds or under other law.

Subd. 4. Nonapplication to certain claims. –This section does not apply to claims against the state pursuant to section 3.736 or a municipality pursuant to section 466.02.

HISTORY: 2013 c 118 s 1

NOTES:

The good news is the definition of a party to the release includes a “…minor or another who is authorized to sign or accept the agreement on behalf of the minor.” That adds more support to Minnesota law, which has allowed a parent to sign away a minor’s right to sue. See Minnesota decision upholds parent’s right to sign away a minor’s right to sue.

Greater interest is the rest of the definition of a party. “…accept the agreement on behalf of the minor.” Can a Scoutmaster or Little League coach who has been told by the minor’s parents you can sign stuff for my kid, release someone from liability? Legally, it seems like a stretch, but this is the best argument I’ve ever seen for such actions.

The bill appears to be a compromise from an attempt to eliminate releases totally and after the arguments, this was the result. Thank heavens!

This does one thing; it legislatively states that releases are OK. You can’t argue now, that releases are void in Minnesota for any legislative reason. And maybe someone other than a parent can sign away a minor’s right to sue.

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Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball. However, language of the decision may apply to well written releases to stop all claims for negligence.

Posted: March 31, 2014 | Author: Recreation Law | Filed under: Indiana, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: base, Brian Thompson, Indiana, Inherent Risk, Minor, Negligence, parent, Plaintiff, Release, Sliding, softball, Summary judgment, YMCA | 3 Comments

Decision appears to add Indiana to the list of states were a parent can sign away a minor’s right to sue for injuries.

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Date of the Decision: August 31, 2012

Plaintiff: Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant

Defendant: Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson

Plaintiff (Defendant on Appeal) Claims: negligent and violated its duty to protect Taylor by its failure to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base “such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base and, thereby, posing a clear safety hazard

Defendant Defenses: Release

Holding: Release signed by the mother of the injured plaintiff (defendant on appeal) barred claims for the inherent risks of playing softball

Again, the plaintiff on appeal was the defendant in the trial court. The defendant at the trial court level filed a motion to dismiss. The motion was denied, and the defendant appealed that decision. Because of that timeline, the defendant became the plaintiff on appeal. Because of the confusion, I’ll just refer to the parties by their names: YMCA and Thompson.

The mother of Thompson, 17 years old at the time of her injury, signed a release to allow her daughter to play softball. The release was quite bad. It did not contain solid language, the word release, or explain any risks except the inherent risks of softball. The trial court rejected the YMCA’s argument and denied its motion for summary judgment based on the release.

The YMCA appealed the decision to the Indiana Appellate Court which reversed the decision.

Of note and of interest, Indian defines negligence in three steps, not the normal four steps as defined by the appellate court in this case.

In order to prevail on a claim of negligence, a plaintiff is required to prove:

(1) a duty owed by the defendant to the plaintiff;

(2) a breach of that duty by the defendant; and

(3) an injury to the plaintiff proximately caused by the breach.”

Basically, Indiana combines the majority third and fourth step into Indiana’s third step to define the requirements to prove negligence.

Summary of the case

Thompson first argued that an Indiana statute required any release for a minor to be approved by the court before it became effective. Many states require court approval of the settlement of the claims of minors.

The court quickly dismissed this argument because the statute in question was part of the probate law of Indiana and only dealt with post injury claims. Thompson did not raise any other arguments against the release so the court declared the release valid.

The court then went through the requirements for a valid release under Indiana’s law.

It is well established in Indiana that exculpatory agreements are not against public policy. “Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent.” However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically and explicitly refer[s] to the negligence of the party seeking release from liability.'” An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Furthermore, an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity.

Of greater note was this statement from the court. “The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.”

This may lead you to believe, and I believe properly that a properly written release would top a minor’s claim for negligence under Indiana Law.

The court concluded the release signed by the mother did not release the YMCA for all negligent acts because it was written so poorly. However, it will release the YMCA for what was stated in the release, the inherent risks of softball.

The court then reviewed whether sliding into a base was an inherent risk of softball.

Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity.

So Now What?

It appears that Indiana will allow a parent to sign away a minor’s right to sue. A well-written release, including the magic word negligence, which identifies the risks other than the inherent risks, would stop a claim for negligence.

A well-written release would have eliminated half of this decision, maybe even the appeal. If the proper language, the magic word negligence and a broader definition of the risks were in the release, this case would have been decided faster and with less worthy.

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